HRCSL issues recommendations on how Govt. can formalise curfew

• Says it can be done by Gazette under Public Security Ordinance or as a regulation by Health Minister under Quarantine and Prevention of Disease Ordinance 
• Emphasises Commission has powers to proactively issue recommendations if curfew may violate fundamental rights 
• Argues need to be transparent about curfew due to large numbers of people detained for violating it
• Insists recommendations in no way encourage public to disregard COVID-19 mitigating instructions issued by health authorities 

The Human Right Commission of Sri Lanka (HRCSL) this week issued recommendations on the regularisation of curfew, calling on the Government to either gazette it under the Public Security Ordinance or formalise it as a regulation established by the Health Minister under the Quarantine and Prevention of Disease Ordinance.

Issuing a detailed statement, the HRCSL observed many concerns have been raised by the way curfew was imposed due to COVID-19, which have also been prompted by a large number of people being detained for violation of curfew. 

The Commission, in its recommendations, said it was within its mandate to proactively advise the Government and emphasised that its statement in no way encourages people to act outside of the COVID-19 social distancing measures issued by healthcare authorities. 

“In this instance, the matter that falls within the purview of the commission per its lawful mandate is to examine whether or not the curfew currently enforced in the country (whether in the whole country or in parts thereof) is being imposed in a manner that is in violation of the fundamental rights of the people under the Constitution and also Sri Lanka’s international human rights obligations,” the missive said. 

The recommendations made by HRCSL under powers vested in it by Act No.21 of 1996 for purposes of promoting and protecting fundamental rights are given below. The Commission reiterates its view that restrictions to freedom of movement (e.g. imposing curfew, restricting movement to diseased localities) are a critical necessity in the interests of public health and public order during a health crisis of the nature that has gripped the country at present. 

However, such restrictions cannot be in violation of the Rule of Law. Both the Constitution and international human rights obligations of Sri Lanka stipulate that restrictions to freedom of movement are legitimate only if imposed by law in order to achieve permissible objectives. Preservation of public health and public order are permissible objectives. The central issue addressed by these recommendations is the manner in which the restrictions should be imposed by law. 

The Commission is of the view that the imposition of curfew can be regularised in two ways:

(i) By Order made by the President and Gazetted under S.16 of the Public Security Ordinance (PSO)— this is the most authoritative manner in which curfew could be declared. A pandemic calls for decisive action; this option would be the stronger one also taking into account the extent to which rights of the public are affected by continuous restrictions on right to movement. It also must be noted that a declaration of a state of emergency is not required to use powers under S. 16; or

(ii) By Regulation made by the Minister under S. 2 read together S. 3 (2) of the Quarantine and Prevention of Disease Ordinance. It is the observation of the Commission that the ‘proper authority’ appointed by the Minister has powers to restrict movement only over ‘diseased localities’. Such powers do not confer wide enough authority to impose countrywide curfew as a precautionary measure. 

It is essential that there is transparency in the declaration of curfew and all other forms of restriction of movement. All declarations of curfew must be formally made and must be available in the public domain. Currently, the Presidential Media Division announces the imposition and withdrawal of curfew. Although we are made to understand that curfew is currently declared by the police purportedly under the Quarantine and Prevention of Disease Ordinance, the declarations are not available in the public domain.

The Commission wishes to emphasise that nothing in these recommendations should be construed by any member of the public to act contrary to health guidelines issued by the public health authorities in regard to the COVID-19 pandemic or act in a manner that would be harmful to public health in general.