Can a society wield tough powers to forcefully control and manage human misbehaviour and social disruption but prevent the innocent from falling victim to those powers? And how can those wielding such power be constrained from abusing coercive laws and mechanisms to unduly exploit their position of authority or undemocratically prolong their hold on power?
Last week, Sri Lanka received both, accolades as well as some criticism for the state of human rights in the country by a visiting team from the United Nations. The 3-member team from the UN Human Rights Council’s Working Group on Arbitrary Detention that ended their study visit last week issued an interim report in Colombo before departure. The three officials are members of the five-member Working Group of experts appointed by the UN to monitor detention issues globally.
The UN experts praised the Government for its efforts, since coming to power, to restore law enforcement practices and procedures that safeguard the human rights of people subjected to enforcement of national security and emergency laws. While recognising the new respect for fundamental rights being paid by security and law enforcement agencies, the UN experts also appreciated the new compliance by Sri Lanka of various international standards pertaining to law enforcement and national security action.
The expert team also appreciated the very recent decision by Sri Lanka to sign up to the international redress mechanism under the global convention on torture. At the same time, the UN team highlighted what it said was the lack of progress in improving conditions of arbitrary detention as well as in limiting the powers of arbitrary detention.
One of the areas of rank abuse of power by politicians in governmental power is in the enforcement of national security laws and ‘emergency’ powers. In Sri Lanka, such abuse has seen disturbing costs in human terms: people detained unjustly and in unhealthy conditions, people ‘disappearing’ after detention, people tortured while in detention or mysteriously dying in custody and, people detained for long periods without trial.
Citizens old enough to remember, may recall a few early decades of post-colonial nationhood largely devoid of such injustice and human cruelty. But post-colonial social ills soon overtook that early exhilaration of breaking out of colonial domination and exploitation.
Politicians and political parties in power soon resorted to the toughest laws available in their attempts to manage or control the fall-out from these social problems, the chief being rural poverty and painful inequality among social groups, especially, between ethnic communities.
And when the original powers to ensure public security were seen as inadequate, governments under pressure, added on more powers. Over the years, as security conditions worsened with successive insurgencies threatening the state and public order, new laws and mechanisms were brought in, that enhanced the arbitrary powers that are wielded by the authorities in situations of instability and national insecurity. After all, not very many newly emerging and yet developing nations have had to face countrywide insurgencies that both threatened to overthrow the state as well as bifurcate the territorial integrity of that state.
When a government declares a ‘state of emergency’ in the country, that is done ostensibly for the purpose of ensuring the security of the public to the fullest in a situation where there is an extraordinary threat to that security. Since inception as a modern nation after colonial rule, successive governments have invoked the Public Security Ordinance - which provides for these ‘emergency’ powers – to meet contingencies.
However, there has also been a persistent tendency by governments as well as individual politicians in power to abuse these national security powers. Successive regimes are under suspicion over the incidence of abductions, disappearances, arbitrary detentions and torture while in custody. Sadly, not a single regime can claim credit for either ending such occurrences.
This government, more than any other previous regime, has managed to achieve certain standards on some issues and has managed to win recognition by the international community for these achievements. Certainly, disappearances do not occur, although there have been instances of suspected political assaults and even killings.
Given the long periods of violations of human rights standards, including the abuse of powers such as the power of detention, there is much more to be done. With many laws enabling various forms of arbitrary detention, the government has work to do to revise laws and procedures, instil new procedures and compliance mechanisms, and take other action to reverse the national trend firmly away from repression and authoritarianism.
The challenge is not the mere reduction of these extraordinary powers designed for extraordinary situations. Rather, it is the need for a finer balance between possessing the necessary teeth to ensure public security while, at the same time, preventing those powers being abused by those in government, the security agencies and the bureaucracy.
After all, even if the immediate threat of insurgency no longer exists, new forms of insurgency are emerging across the globe that have demonstrated immense cross-border potential. And ethnic conflict remains a potential threat.
Across the world, nations are beginning to reform security laws to meet the new threats to social order and public safety. But strict controls on the use of such powers are essential since every society has experienced the large scale abuse of power at much human cost. Sri Lanka, also having experienced such abuses, can only heed to the promptings of experts and concerned groups both local and international.