TNA MP Sumanthiran writes to HRC seeking intervention to regularise ‘curfew’

Former TNA MP M.A. Sumanthiran 

• Says HRC has power under law to advise and make recommendations to Government
• Urges HRC to address situation reading the curfew
• Says Govt. used neither Emergency Regulations nor issued gazette under Public Security Ordinance to declare curfew
• Says present ‘curfew’ not legally imposed, however desirable and necessary it may be

Former TNA MP M.A. Sumanthiran has written to the Human Rights Commission of Sri Lanka calling on the HRC to advise the Government on the need to rectify and regularise imposition of “curfew”.

“I am of the opinion that restricting movement is desirable and necessary at this time in our country in order to meet the challenge presented by COVID-19. There is no gain saying that such restrictions including curfew must be imposed legally under applicable provisions of law. 

“Insofar as I have been able to ascertain, this has not been done under any extant legal provision. Such action therefore poses a grave threat to the Rule of Law and indeed to the wellbeing of the people of this country,” Sumanthiran said in the latter.

He drew the attention of the HRC to Section 10 (c) and (d) of Act No. 21 of 1996, by which the Human Rights Commission is empowered to advise and make recommendations to the Government and urged the HRC to  address this particular situation reading the curfew.

The former TNA lawmaker said that curfews in this country have hitherto been imposed by the use of Emergency Regulations after bringing Part II of the Public Security Ordinance into operation by means of a proclamation but this has not been done in the present instance.

Further, there is provision under Section 16 of the Public Security Ordinance (which comes under Part III) to impose restrictions on movements of people by making publication in the Gazette to that effect. This also has not been done, he said.

“The Supreme Court of Sri Lanka has noted that any restriction on the freedom of movement guaranteed by Article 14(1)(h) of the Constitution must be prescribed by law: ‘…[t]he right of citizens to travel on public highways and to have access to public places may only be curtailed by restrictions imposed in terms of Articles 15(6) and 15(7).’ – vide Vadivelu v. OIC Sithambarapuram and others [2002] 3SLR 146. In conclusion, Mark Fernando J. held: ‘There is force in the Respondent’s contention that the restrictions complained of were imposed in the interests of national security, and were reasonably necessary for that purpose’,” the letter said.

It added that “however, Article 15(7) required that such restrictions be imposed by a law, or by regulations made under the law relating to public security. Accordingly, the travel pass system constitutes a restriction not authorised by Article 15(7). I hold that the Petitioner’s fundamental right under Article 14(1)(h) had been infringed by executive action by the application to him of the travel pass system”.

“There is also the question as to whether the law relating to public security can be utilised to impose curfew for exigencies of public health hazards. But leaving that question aside, there is at present no regulation made even under the Public Security Ordinance. 

“Thus, the present ‘curfew’ has not been legally imposed, however desirable and necessary it may be. In fact, it is all the more important that the restrictions on the freedom of movement be properly and legally prescribed and enforced given the grave need for such in the present context and the need for certainty in this regard.”

He noted that the Quarantine and Prevention of Diseases Ordinance also does not provide for the imposing of curfew.

“I trust the Commission will give due consideration to the matters raised by me in view of the very serious public importance of this issue and advise the Government on the need to rectify and regularise this matter without any further delay,” he added.

Sumanthiran said he is writing to the HRC in the public interest but declared his “interest” in a related matter.

“I appear as Counsel in the Nugegoda Magistrate’s Court in Case No: B/1454/20 for Ranjan Ramanayake, former Member of Parliament. In the course of my submissions made to court on 20 April, I took up the position that no curfew has been declared in the country in terms of any applicable law. 

“Having recorded my submission in this regard and while granting bail to my client, the learned Magistrate very specifically held that he was not making a determination as to the legality of the curfew at this point in time. It is pertinent to note that my client has not been accused of violating any curfew.”