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Sunday October 24th, 2021
Legal

Sri Lanka on dangerous path of Enabling Law with gazette rule, emergency: opposition

ECONOMYNEXT – Sri Lanka should not resort to excessive control of the people through gazette rule which is an overt sign of authoritarianism and was the principle tool used by Hitler to set up a dictatorship in Germany, opposition legislators warned.

Adolf Hitler lost his parliamentary majority in 1933; he resorted to full scale gazette rule.

“I might say this for the students of history,” opposition Samagi Jana Balawegaya legislator Eran Wickremaratne told parliament.

“In 1933 Adolf Hitler passed the Enabling Act.

“He bypassed parliament after that. After that he became a law unto himself.”

Under the Enabling Act, Hitler and his cabinet could enact laws by gazette without the approval of the Reichstag and establish a dictatorship. He originally came to power following the currency troubles and the economic downturn of the former socialist administration.

Wickremaratne was speaking in a debate over a gazette issued by the President using Public Security law declaring an emergency and appointing a military major general as a commissioner general to seize and take over food stocks and warehouses.

Before the emergency regulation was debated in parliament sugar stocks in several warehouses were seized by the new commissioner general with involvement of the main price control agency that has created shortages in cooking gas and milk powder earlier.

The CAA also issues price controls through gazette, triggering shortages from time to time. Its price controls has almost put Laugfs Gas, a public listed firm out of business forcing it to run billions of rupees of losses.

In the US, Franklin Roosevelt in 1937 and 1938 attempted to re-organize the executive branch which opponents described as attempts of a would-be dictator “to subvert democratic institutions” by “importing European totalitarianism into the United States”.

The House defeated both bills but he created Executive Office of the President and Office of the President and an Office of Emergency Management through which orders are issued without going through congress.

Some of the sudden decisions made by the Roosevelt had hit investment by creating uncertainty, undermining property rights and had delayed a recovery from the great depression, (Regime Uncertainty, why the Great Depression lasted so long?) economists said later.

Many of the executive orders that President Trump made without going through a formal bill in Congress had to be challenged in court.

In Sri Lanka taxes man taxes are imposed through midnight gazette without debate, the parliaments originated in England over the principle of ‘taxation by consent’, critics have said. But through gazettes, taxes are imposed in Sri Lanka through ‘minister’s prerogative.

Related Sri Lanka’s prerogative tax impunity checked in Magna Carta moment

Wickremeratne when he was state minister had objected to major overhaul in an income tax law being made in the middle of the year and delayed its implementation till the next financial year to minimise disruptions to business, analysts familiar with the matter said.

Sri Lanka’s current economic troubles also come from sweeping tax cuts made in December 2019, when parliament was not in session.

Wickremaratne questioned the link between emergency and food shortages. He said it there were hidden stocks as claimed by the government there were provisions in the Consumer Affairs Authority itself to use. The Disaster Management Act No 13 of 2005 could also be used.

“No President should be given more powers than are needed to execute his responsibilities,” he said.

“What is the necessity for the President to proclaim a State of Emergency under the Public Security Ordinance to further consolidate his power? What purpose is he trying to accomplish?

“Through these emergency proclamations the President has the power to suspend civil liberties, arrest and detain any citizen without a court order, suspend laws of the country, enter any premise without a court order and seize privately owned property.”

Agriculture Minister Mahindananda Aluthgamage said the parliament was bypassed and emergency proclaimed through gazette for expediency and speed.

To draw up a law, go through the Legal Draftsman, the Attorney General takes time.

“It will take at least three months to pass the legislation,” he said.

Tamil National Alliance legislator said the state of emergency had been brought departing from prior practice.

A separate gazette has been issued in the past to give effect to Part II of the Public Security Law to declare an emergency. A separate gazette is then issued for emergency regulations.

However the gazette issue this time had reference to Sections % dealing with essential services that later about the Part II being activated.

“Naturally a suspicion emerges why a state of emergency was brought into operation in this insidious way. It’s clouded,” he said. “The people are not told that the country is under emergency.

“We have never had a declaration of emergency talking about section 5. That is why it has given the suspicion whether there is another sinister motive.”

Sumanthiran said he was not saying there was no desire on the part of the government to control food prices, as he himself was concerned.

However did not agree that it warranted declaration of emergency.

“Now you can make regulations that impinge and restrict various fundamental rights the citizens of the country have.

“Namely; freedom of speech, freedom of publication, freedom of association. I am saying this due to the history we have gone through.

He said Sri Lanka had emergency rule in the 1970s and in the 1980s.

“How emergency was abused everyone knows.”

Sumanthiran said he was seeking an assurance that that the use of emergency will not be extended to any other areas.

“I did concede that prices going up is a matter of concern to us. You have various other laws that can deal with the situation. Even the public security ordinance can deal with the situation

“Part III, Section 17 provides for the declaration of essential services. But it makes a reservation that it cannot apply to trade union actions. It has that safeguard. But you do not want to use that.”

The regulations were passed with an 81 vote majority in the 225 assembly in which the ruling party has a two thirds majority. (Colombo/Sept07/2021)

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