We can all agree that Sri Lanka is not in the best shape right now and over the weekend, we experienced some good and some bad, depending on who you ask.
What transpired over the past two days was that, on 1 April, the President declared that the country was in a state of emergency and then on 2 April, implemented an islandwide curfew from 6 p.m. on 2 April to 6 a.m. today (4).
The regulations were brought into place by the issuing of a Gazette Extraordinary No. 2273/86, declaring a public emergency in Sri Lanka.
The gazette stated “by reason of a public emergency in Sri Lanka, it is expedient, so to do, in the interest of public security, the protection of public order and the maintenance of supplies and services essential to the life of the community” and for these reasons, the President by virtue of the powers vested in him by Section Two of the Public Security Ordinance, will be issuing a proclamation declaring that provisions of Part Two of the said Ordinance shall come into operation throughout the island.
From our experiences in the past, when the President proclaims a state of emergency, what we have come to assume is that it automatically imposes the entire barrage of regulations under the Ordinance, which includes the power of the President to make emergency regulations, call out the armed forces, implement curfew, etc.
However, we saw on 2 April that these things do not automatically come into play and the President had to manually implement an islandwide curfew; it was not simply part and parcel of the state of emergency. So what does it mean to be in a public state of emergency?
According to Attorney-at-Law Harshana Nanayakkara, the proclamation of a state of emergency is provided for by the Constitution under Chapter XVIII of the Public Security Article 155.
The Article provides that the these powers are granted by virtue of the Public Security Ordinance and vests with the President the “…power to make emergency regulations under the Public Security Ordinance… shall include the power to make regulations having the legal effect of overriding, amending, or suspending the operation of the provisions of any law, except the provisions of the Constitution”.
Nanayakkara made a special note of the final sentence where it states that these regulations made under the Public Security Ordinance are not to override the Constitution, which would mean that despite there being a proclamation of a state of emergency, citizens still maintain their fundamental rights, which include their freedom of thought, conscience, and religion; freedom from torture; freedom of speech, assembly, association, occupation, and movement; among others.
Considering the situation over the weekend, we are all aware that there was a massive protest scheduled for yesterday (3) in the Western Province, where the public would have exercised their freedom of peaceful assembly, and as per Article 155, this right remains. However, Nanayakkara noted that within the Constitution itself there are certain limitations imposed on select few fundamental rights as per Article 15 of the Constitution.
Article 15 (3) notes: “The exercise and operation of the fundamental right declared and recognised by Article 14 (1) (b) shall be subject to such restrictions as may be prescribed by law in the interests of racial and religious harmony.”
What about curfew?
Curfew is imposed as per Section 16 of the Public Security Ordinance. “Where the President considers it necessary to do so for the maintenance of public order in any area…no person in such area shall, between such hours as may be specified in the Order, be on any public road, railway, public park, public recreation ground or other public ground, or the seashore except under the authority of a written permit granted by such person as may be specified in the Order.”
This here is pretty straightforward; if there is a curfew and you are to break it, then you will be committing a crime.
What’s next?
Nanayakkara noted that while the law and regulations are readily available for citizens to educate themselves, when it is practically applied, the law of the land and its effective implementation depends largely on the nature of the rulers who are willing to abide by it.
He shared that considering the three pillars of democracy, we can make an attempt to evoke the intervention of the Judiciary with regard to any violations in terms of these regulations. The Legislature, that is the Parliament, being the second pillar, often tends to side with the Executive, who is the third and final pillar holding up our country’s democracy.
He shared that a further element of the proclamation of the state of public emergency is that as per the Ordinance, the Parliament must be called immediately and they are vested with the power to, firstly, vote on the regulations being made under the vested power and decide upon them, and secondly, make the final call on whether to allow this state of emergency to continue to be effective or not.
He said that we can wait and see what kind of decision the Legislature makes at this juncture.
