A state of emergency was to go into force in Sri Lanka at midnight on Monday. “The government has decided to gazette the clauses related to prevention of terrorism to emergency regulation and gazette it by midnight,” the office of President Maithripala Sirisena said in a statement in the afternoon. What does a state of emergency mean in the context of Sri Lanka?
Under the Public Security Ordinance (PSO) of 1947, the President can proclaim an emergency for all or parts of Sri Lanka, if “he is of the opinion that it is expedient to do so 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”.
Article 155(2) under Chapter XVIII (Public Security) of Sri Lanka’s 1978 Constitution says that “the power to make Emergency Regulations under the Public Security Ordinance… shall include the power to make regulations having the legal effect of over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution”.
Only the President can declare an emergency, and his decision is not subject to judicial review. However, he must summon Parliament immediately to inform it of his decision. Parliament must approve of the proclamation within 14 days, failing which the proclamation expires at the end of one month.
The Emergency Regulations are extraordinary because they are made by the President — and not the legislature — and because they supersede existing laws. (Parliament can, however, revoke or change an Emergency Regulation, and courts can strike down a specific Emergency Regulation that violates the Constitution.)
Under the PSO, Emergency Regulations allow for detentions of individuals; entering, searching, and takeovers of private property; and for “amending any law, for suspending the operation of any law and for applying any law with or without modification”. The Ordinance also grants “Special Powers” to the President to “call out all or any of the members of all or any of the armed forces for the maintenance of public order”, and to put restrictions on people’s movement.
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The Sri Lankan Constitution also permits restrictions on fundamental rights through the Emergency Regulations. According to a brief prepared by the Colombo-based independent advocacy and research nonprofit Centre for Policy Alternatives, among the fundamental rights that can be restricted in the interest 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”.
The PSO is a piece of colonial legislation that has been criticised by several analysts. Sri Lanka, which first declared an emergency in 1958, remained under near-continuous emergency rule between 1983 and 2009 as it fought the LTTE. A 13-day state of emergency was declared in March 2018 to control deadly Buddhist-Muslim clashes, especially in the Kandy area.