FR on Emergency Regulations withdrawn

By S.S. Selvanayagam

Two Fundamental Rights petitions filed in the Supreme Court against certain sections of the country’s Emergency Regulations were withdrawn yesterday.

The petitions were rescinded since the Emergency Regulations were no longer in effect.

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

The petitioners had cited the Attorney General and Defence Secretary General (Rtd.) S.H.S. Kottegoda as respondents.

The bench hearing the case comprised justices B.P. Aluvihara, L.T.B. Dehideniya and P. Padman Surasena.

Bhavani Fonseka, instructed by Mohan Balendra and M.A. Sumanthiran PC with Viran Corea, appeared for the 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 the Attorney General.

The petitioners stressed that they were not challenging the declaration of a State of Emergency but rather some of its regulations which are found in Extraordinary Gazette No. 2120/5 dated 22 April 2019.

They noted that certain emergency measures were needed to combat security threats but such regulations must be reasonable and proportionate to the means that they seek to achieve when they have the effect of curtailing the fundamental rights of citizens. They cited Regulation 4 that “any power, duty or function conferred on the President by any emergency regulation may be exercised, discharge by any Minister who is authorized in that behalf by the President.”

They underlined that, as per the Public Security Ordinance, the President could only empower the making of orders and rules for the purposes of which the regulations were made and he was not permitted to delegate any power, duty or function imposed on himself, thus such regulations were ultra vires.

They challenge that while it was not contested that some Emergency Regulations were necessary to combat the threat of terrorism and violence, some of them were excessive in nature with the potential for abuse and were disproportionate to the aim which they sought to achieve.

They also pinpointed 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 the Defence Secretary without judicial discretion or oversight.

They highlighted prolonged detention without production before a Magistrate as well as powers over inquests.

They stated that the Judiciary had been ousted from reviewing detention orders made by an Executive authority and charged that this was an encroachment of the judicial power of the people.

They alleged that certain regulations were therefore a serious violation of a number of fundamental rights guaranteed under the Constitution.