FR on Emergency Regulation: SC defers petitions for 5 July

By S.S.Selvanayagam

The Supreme Court this week deferred the Fundamental Rights Petitions contesting certain obnoxious Emergency Regulations for 5 July.

The Bench comprised Justices Prasanna S. Jayawardena, Murdu N.B.Fernando and S. Thurairaja.

Court directed the Petitioners to dispatch notice to the Defence Secretary through Registry.

Additional Solicitor General sought time to obtain instruction from the Defence Secretary.

The petitions were filed by Purawesi Balaya convener Gamini Viyangoda, as well as Centre for Policy Alternatives and its Executive Director Dr Paikiasothy Saravanamuttu.

Petitioners cited Attorney General and Defence Secretary Gen (Rtd) S.H.S.Kottegoda as Respondents.

Instructed by Moahan Balendra, M.A.Sumanthiran PC with Viran Corea, Bhavani Fonseka appeared for CPA while Viran Corea with Lewis Ganeshananthan and Khyati Wikramanayake appeared for Gamini Viyangoda.

Additional Solicitor General Farzana Jameel with Deputy Solicitor General Nerin Pulle and Senior State Counsel Azad Navavi appeared for Attorney General.

Petitioners claim that they are not challenging the Declaration of a State of Emergency, but rather some of the Regulations which are found in Gazette Extraordinary No. 2120/5 dated Monday 22April 2019.

They note that certain emergency measures are needed to combat security threats but such Regulations must be reasonable and proportionate to the ends that they seek to achieve, when they have the effect of curtailing the Fundamental Rights of the citizens.

They cite Regulation 4,“Any power, duty or function conferred on the President by any Emergency Regulation may be exercised, discharged by any Minister who is authorised in that behalf by the President.”

They underline that as per the Public Security Ordinance, the President can only provide to empower the making of orders and rules for the purposes for which Regulations are made, and it does not permit the President to delegate any power, duty or function imposed on himself, thus such regulation is ultra vires.

 They impugn that while it is not contested that some Emergency Regulations are necessary to combat the threats of terrorism and acts of violence, some of them are excessive in nature, with potential abuse and disproportionate to the aim which may be expected to seek to achieve.

They also pinpoint the restriction of judicial discretion in sentencing, and the wide powers for restriction orders with no judicial oversight, as well as the preventive detention orders made by Defence Secretary without judicial discretion or oversight.

They bring to the cognizance the prolonged detention without production before a Magistrate, as well as the powers over inquests.

They aggrieve that the Judiciary has been ousted from reviewing detention orders made by an executive authority, and charge this is an encroachment of the judicial power of the people.

They allege certain regulations are hence in serious imminent violation of a number of Fundamental Rights of the citizens guaranteed under the Constitution.