Why emergency?

President Gotabaya Rajapaksa has declared a state of emergency purportedly to ensure the supply of essential food items. According to the Presidential directive, public officers are now empowered to take necessary steps to provide essential food items at concessionary rates to the public. At face value the measure seems harmless and warranted in these extraordinary times. However, as several constitutional experts have pointed out, the declaration of a State of Emergency under the Public Secretly Ordinance of 1947 (PSO) is no light matter.  

The Sri Lankan Constitution does not define a state of emergency, but provides for the procedural framework by which the President can declare it, without any objective considerations. According to the PSO, a declared emergency empowers the President to enact regulations that can override any law, regulation, or provincial statute other than the Constitution. Fundamental rights other than those concerning arbitrary detention and torture can be curtailed under such a declared emergency. These include provisions for special powers to the President, including procedures for arrest, detention, and executive review of detention, commandeering and acquisition of private property, calling the armed forces out to the aid of the civil power, and the suspension of certain safeguards contained in the Code of Criminal Procedures Act.

The accepted international law on declaring a state of emergency as articulated in the International Covenant on Civil and Political Rights (ICCPR) is that it should be declared in an extraordinary public emergency, one ‘which threatens the life of the nation’. Sri Lanka has been under a state of declared emergency for the most of the last 40 years, continuously from 1983 to 2011 and in 2018 and 2019 during ethnic violence and in the aftermath of the Easter Sunday bombings. Given the country’s sordid past with the state of emergency, the question needs to be asked about whether the current health crisis could be defined as a situation that threatens ‘the life of the nation’ that warrants the declaration of emergency under the PSO.  

The COVID-19 pandemic is now nearly two years old. There are ample provisions within the law that could have addressed the public health challenge without resorting to the extreme case of declaring a state of emergency. If there was a lacuna in the legislation, the Government which enjoys a whopping two-thirds majority in Parliament can pass any laws it requires without much trouble. In addition, it is expected that provisions to fight the pandemic, such as legislation on public safety, import of medicines, declaration of lockdowns by the health authorities, etc. would get the overwhelming support of all parties in Parliament. 

The Government also had the option to declare a public health emergency through an Act of Parliament. Unlike a State of Emergency declared under the PSO at the sole discretion of the President, such a targeted piece of legislation would tackle the specific challenges arising from the pandemic and have support of the entire Parliament.

Yet the President decided instead to surreptitiously declare a state of emergency that has sparked concerns regarding his true motives. The declaration of emergency comes at a time when the Government has put its full focus towards curbing growing public discontent spilling out into the streets in the form of protests and demonstrations. It has used the draconian anti-terrorism laws to question, arbitrarily detain and intimidate numerous individuals and even doctors who have vented their frustrations on social media. In this backdrop, adding a state of emergency to the mix only serves to further erode the shrinking democratic space available to the citizenry.