Explained: Emergency in Sri Lanka, its history and contours

Before Rajapaksa, President Maithripala Sirisena had declared an Emergency in March 2018 to contain anti-Muslim violence in some parts of the country that led to the deaths of two people, acts of arson, and damage to property. And before that, Sri Lanka was under a near continuous state of Emergency for 27 years — from the anti-Tamil riots of July 1983 to August 2011 — with brief respites in 1989 and 2001.

Emergency was first imposed in 1958 after Sri Lanka embraced the Sinhala Only language policy, and off and on from 1971 onward, when the left-wing Janatha Vimukthi Peramuna mounted its first insurrection.

A Sri Lankan man shouts anti government slogans during a protest outside Sri Lankan president’s private residence on the outskirts of Colombo (AP)

The process

The power to declare a state of Emergency is vested in the President, who is the head of government, under Article 155 of the Constitution. The 1947 Public Security Ordinance (PSO) provides the legal framework for the proclamation of Emergency.

Under the ordinance, a state of Emergency can be proclaimed “where, in view of the existence or imminence of a state of public Emergency, the President is of opinion that it is expedient so to do in the interests of public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community…”.

The PSO empowers the President to frame Emergency regulations — for detention, taking possession of property or undertaking; authorisation to enter and search any premises; for amending any law, suspending the operation of any law, and for applying any law with or without modification, without reference to Parliament. The regulations can override all existing laws.

Sri Lankan undergraduates protest blocking a highway demanding the government step down during a curfew in Colombo. (AP Photo)

The Emergency (Miscellaneous Provisions and Powers) Regulations (EMPPR), give special powers of search, arrest, and detention to the national security forces and law enforcement agencies. In 2005, after the assassination of then Foreign Minister Lakshman Kadirgamar, more such regulations were framed to define new offences under “terrorism”.

There is also the draconian Prevention of Terrorism (Temporary Provisions) Act of 1979, which has remained on the books even after the civil war has ended. In response to international criticism, the government recently amended this Act, but not enough to satisfy domestic or international critics.

Sri Lankan army soldiers stand guard near the Independence Square as opposition alliance Samagi Jana Balawegaya party members protest against President Gotabaya Rajapaksa in Colombo. (Reuters Photo)

Role of Parliament

Emergency regulations are valid for a month, but the President must seek ratification for the proclamation or extension beyond a month, every 14 days. The Emergency lapses if it is not brought before Parliament.

UN Special Rapporteur Radhika Coomaraswamy and Charmaine de los Reyes noted that although the 1978 Constitution limits parliamentary debate on a proclamation’s validity and does not enable it to debate the actual emergency regulations, the PSO does have a provision under which Parliament may revoke, alter, or amend a regulation through a resolution.

But, they say, no reports have been found where Parliament has exercised this power on any emergency regulation. (Rule by Emergency: Sri Lanka’s Postcolonial Constitutional Experience, International Journal of Constitutional Law, 2004)

Scope of restrictions

In a background paper for the Colombo think tank Centre for Policy Alternatives, legal expert Asanga Welikala writes that as freedom of thought and conscience, the prohibition of torture, and the right to be heard at a fair trial by a competent court (but excluding pre-trial detention which can be imposed by Emergency Regulations) are not subject to any restriction and are thereby to be considered absolute, these therefore may never be restricted by Emergency Regulations.

According to him, the fundamental rights that may be restricted in the interests of national security and public order are the presumption of innocence, the burden of proof, and retroactive penal sanctions; equality before the law and non-discrimination; the ordinary procedure for arrests and judicial sanction for detention; and the fundamental rights to freedom of expression, assembly, association, movement, occupation, religion, culture and language. (www.cpalanka.org/understanding-a-state-of-emergency-march-2018/)

As the Constitution says nothing about the extent to which these rights might be restricted, Welikala notes that this usually depends on the “the goodwill of the executive to act responsibly and/or the courts’ willingness to enforce the rule of law and fundamental rights”.

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