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Banning, the PTA, etc.

by Jayadeva Uyangoda, Daily Mirror, Colombo, December 9, 2006

After the LTTE’s failed attempt to assassinate Defence Secretary Gotabhaya Rajapaksa, there are increasing calls on the government to ban the LTTE and introduce new anti-terrorism laws. The JVP and JHU, the newcomers to Sri Lanka’s ruling class and key members of President Mahinda Rajapaksa’s ruling alliance, are in the forefront of this campaign. Meanwhile, Ranil Wickremesinghe, the Leader of the Opposition is advocating caution in this matter. He has reportedly told the President to be tactful in handling the LTTE in the current context.

The government has now promulgated a series of new ‘anti-terrorism’ regulations. While doing so, the government has so far resisted the idea of banning the LTTE. But the campaign to introduce the PTA in its totality and proscribe the LTTE is likely to continue.

I write this essay to appeal to President Rajapaksa and his close advisors not only to be tactful, but also politically prudent and mature in designing and implementing responses to the LTTE’s continuing provocations for war.

Arguments for Banning
Those who advocate the banning of the LTTE appear to believe that the banning will help the government to politically isolate and militarily weaken the LTTE. They also appear to think that once banned, the LTTE would not be able to operate in Colombo and other areas under the government control. A third outcome they expect is for Sri Lanka’s friendly countries to follow the steps, banning the LTTE internationally. These are legitimate expectations for those political forces in the South whose politics is defined in opposition to the LTTE. These political forces also have little or no regard for minority rights, whether there is a Prabhakaran or not. But a President who runs the state might not have the same luxury of formulating a new policy without examining its immediate, long-term and unanticipated consequences.

Will the proscription weaken the LTTE? This is the question the government must seriously debate about. The past experience shows that banning did not affect the LTTE’s military capacity in any significant way. In the late 1990s and in 2000 and 2001, the LTTE successfully defied the ban to obtain new weapons, weapons systems, launch major military operations and be militarily innovative. One does not need to be accused of being a supporter of the LTTE to recall how the proscription did not deter the LTTE from gaining a military upper hand in the late 1990s and after. As Mr. Anandasangari has said the other day, the banning will actually help the LTTE. Most Tamil people will see the proscription of the LTTE a move motivated by Sinhalese racism, because most Tamil people, unlike most of the Sinhalese people, have a different understanding of the LTTE.

Incapacitating the State
Those who lived through the 1980s and the 1990s should recall that banning a secessionist movement can in turn provide legitimacy to secession. It is only governments who cannot deal with secession and secessionist terrorism politically would resort to militaristic and repressive measures. Such measures will in fact weaken, instead of strengthening, the capacity of the state to deal with the LTTE in a sustainable manner and with international support. They will also make Sri Lankan ill-equipped to constructively handle the crisis generated by secessionist terrorism.

Once a ban is imposed on the LTTE, it would then be very difficult for the government to resume negotiations with a proscribed organization. The declared policy of President Rajapaksa at the moment is to make a fresh call for negotiations once the Report of the Panel of Experts is out. If the government genuinely hopes a positive response from the LTTE for such a call, the LTTE will invariably make de-proscription the first pre-condition for talks. In such an event, de-proscription will be a political nightmare for the government. Banning in the current context will also be a decisive step towards all out war, marking a point of no return and a step that cannot be taken back. The point then is that banning the LTTE is easier said than done, in terms of political consequences.

Lessons of Repressive Laws
Introducing new repressive legislation to counter the threat of LTTE’s attacks and terrorist activities in Colombo and elsewhere is also a measure that has proved both ineffective and counter-productive in the past. The PTA did not prevent the LTTE’s devastating attacks in Colombo in the 1990s. For example, the attacks on the Central Bank as well as the Katunayake Airport took place while the PTA was in operation. It is better and effective policing and law enforcement, not repressive legislation that helps governments to secure the security of the state and the citizens. Governments that ignore this elementary principle about security can only regret later.

Sri Lanka’s own experience with the Emergency Regulations, PTA and Indemnity Law in the past three decades tells us a sad story which today’s advocates of tough anti-terrorist laws seem to be totally unaware of. The first lesson is that repressive legislation is not an effective instrument in combating secessionist or counter-state violence. The second is that such laws are often liable to be abused by governments, politicians, ruling-party political cadres and officials to curtail dissent and opposition. The third lesson is that almost as a rule innocent people become victims of arbitrary arrest, long incarceration and even prison sentences based on minimal evidence, which in most cases are ‘confessions’ extracted by the police under duress.

Fourth, even as temporary measures, these laws once introduced become an indelible black mark in the country’s democratic structures of governance, weakening the processes of rule of law and strengthening the repressive dimensions of the state. Repressive laws have had a particular dialectic in this country. Although they were first introduced to protect the security of the state, they have often been used against the citizens and for the protection of the regime, the ruling party and the ruling party leaders. This has led to the erasure of the distinction between the state and the ruling party, as it was in the case of the UF regime in the 1970s and the Jayewardene regime of 1977-1988 and the subsequent Premadasa regime.

The fifth lesson is that anti-terrorism law in a context of an ethnic conflict runs the risk of being used indiscriminately against the ethnic minorities, and in this case against Tamils. Such an outcome will further alienate the Tamil people from the state, legitimizing still further the argument for secession and counter-state violence.

The final lesson is a political one: all Sri Lankan regimes that have introduced and implemented repressive legislation for this or that reason of state security have sooner than later became unpopular, paralleled with an irreparable erosion of their democratic legitimacy. The reason is simple. Notwithstanding all the arguments -- legal, political and ideological -- that a government might marshal to justify PTA and similar laws, they make the state and the regime undemocratic, repressive and unaccountable. They also make the ruling party politicians, officials and members of the police and the armed forces think that they enjoy both immunity and impunity. President Rajapaksa has been in Sri Lanka’s politics since early 1970s and therefore he should not be oblivious to how Bandaranaike, Jayewardene and Premadasa regimes ultimately paid the political price for being protected by the Emergency regulations and later the PTA.

Challenges
Now of course, the anti-terrorism regulations are in force. What the government can do now is to take steps to minimize their adverse consequences for democracy, human rights, rule of law and the state’s relationship with the ethnic minorities as well as dissenting groups. That is a greater challenge than introducing the laws themselves.

Can the state, confronted with a secessionist war, deal with it without acquiring exceptional powers to deal with ‘terrorism’? A popular answer to this question is ‘no.’ Most political actors in Colombo seem to believe that the government should equip itself with the PTA and then go to all out war to ‘destroy’ the LTTE once and for all. Some want the government to immediately and unilaterally withdraw from the CFA as a prelude to such a decisive move. If President Rajapaksa succumbs himself to the pressures of this argument, Sri Lanka will soon have a decisive phase of war the outcome of which would remain uncertain and unpredictable.

Meanwhile, a greater and more complex challenge that the governments feel easy to evade is to deal with a secessionist war by democratic means. In Sri Lanka today, there are probably very few who would favour the argument for combating secession by democratic means. With new laws, they might even become an endangered species. The stage then is set for fighting a secessionist war by less or non-democratic means and methods. The Bush and Blair administrations seem to be backing this course of action in Sri Lanka, although some EU countries might express their dissent through private conversations among their ambassadors in Colombo. Perhaps, Sri Lanka is drifting towards another catastrophic phase of its ethno-political war. Those who foresee it can only warn about it; they can do very little to prevent it. ...

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