28 September, 2020

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Constitutional Reform: A Review Of The Proposal On Public Security – Part II

By Mass L. Usuf

Mass Usuf

Sri Lanka has gone through armed insurrections both in the North and South at different periods. She has, therefore, been under emergency rule for a long time.  This state of affairs had deprived innumerable persons from the Sinhala, Muslim and other communities of their basic rights.  Special mention must be made of the violations of the rights of the Tamil civilians.  All of which points to the fact how emergency rule can be easily abused, draconian laws enacted (like the Prevention of Terrorism Act of 1979), rule of law disregarded and democratic values literally made non-existent.

The question of authority, as to who shall have the power to proclaim a state of emergency is a vital element.  This, of course, can depend on the system of government –  presidential system or a parliamentary system, where there is a titular or ceremonial president.  The proclamation process can mutate into a variety of combinations based on the system and the statutory requirements.  For example, the president alone may declare a state of emergency or the prime minister or the legislature or the president on the advice of the prime minister or the prime minister on the approval of the legislature.

Critical Areas

Some of the other areas of concern relating to a state of emergency are:

1. A method by which to check if the ‘existence or imminence of a state of public emergency’ has really arisen;

2. the time period for which the state of emergency is proclaimed.

3. the extension of the time period.

4. can the constitution be suspended under the emergency rule or amendment to the constitution permitted, by passing the laid down procedure for constitutional amendments?

5. Is there an effective and adequate checking mechanism to monitor and restraint executive excesses?

6. A control valve to shut out draconian emergency legislations.

7. The areas pertaining to the derogation of fundamental rights and to what extent are the underogable rights limited.

Examining the present constitution under the microscope of these safeguards will reveal the gaps.  On this foundation, suggestions may be formulated to fill in the lacunae in the proposed new constitution. Here, the emphasis will be on broadening the scope of safeguards on fundamental rights and identifying control mechanisms to enhance restraint on abuse of authority.

Declaration Of A State Of Emergency

As stated in Part I of this article, the 1978 constitution recognises the Public Security Ordinance of 1947 (PSO) via Article 155.  The PSO grants exclusive authority to the President to proclaim a state of emergency, ‘the President may, by Proclamation published in the Gazette, declare that the provisions of Part II of this Ordinance shall, …. come into operation’. (Section 2 (1)). 

It is also important to note that the decision on the ‘existence or imminence of a state of public emergency’, is solely that of the President.  In his view if, ‘the President is of opinion that it is expedient so to do’, he shall proclaim a state of emergency as per Section 2 (1) of Public Security Ordinance.

Comparatively, under the 1972 constitution the President shall act on the advice of the Prime Minister, Clause 134 (2).

Emergency Regulations

It would be a timely reminder to realise that the Public Security Ordinance of 1947 was a piece of colonial legislation.  The PSO itself will have to be revisited in order to bring it to international standards respecting human rights that have since evolved.

Part II of PSO authorises that: ‘The President may make such regulations (hereinafter referred to as “emergency regulations”) as appear to him to be necessary or expedient…’ (Section 5 (1)). 

The wide powers under Section 5 (2) of PSO to make emergency regulations include the following areas:

(a) authorize the detention of persons; 

(b) authorize-

  • the taking of possession or control, of property or undertaking; 
  • the acquisition of any property other than land;

(c) entering and search of any premises; 

(d) provide for amending any law, for suspending the operation of any law and for applying any law with or without modification;

(e) provide for charging, in respect of the grant or issue of any license, permit, certificate or other document for the purposes of the regulations, such fee as may be prescribed …;

(f) provide for payment of compensation and remuneration to persons affected by the regulations;

(g) make provisions for the apprehension and punishment of offenders and for their trial by such courts, not being courts martial, and in accordance with such procedure, as may be provided for by the regulations, …..

The 1978 constitution, in addition to the powers given under Section 5 of PSO includes, ‘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.’ (Section 155 (2).

The above gives a picture of the extent to which the fundamental rights and liberties of a citizen can be curtailed.  A democracy can turn into a near dictatorial government when it can wield such powers. Under the social contract, the citizens expect the government to uphold the rule of law.  Imagine if that same government disregards it.  Ironically, using the very instruments of Law which is supposed to protect its people. The freedom of every citizen to live without fear will be completely lost.

Control

When speaking of control in a democratic set up naturally, Montesquieu comes to mind along with his doctrine of separation of powers – The legislature, the Executive and the Judiciary. This is an effective tool to ensure the good governance of a state. The positive legislation already in place in the present constitution by way of checks and balances on the executive is of great significance.  These provisions need to be retained and given more teeth towards the primary objective of securing fundamental rights and preventing abuse. 

Of the three powers of separation sadly, what is missing in the present constitution in relation to emergency rule is the control by the Judiciary.  In fact, the PSO has literally kept judicial review out of bounds by its many sections.  This will be discussed in detail later.  As for Parliamentary oversight:

1. A very important check on the emergency powers of the President under the 1978 constitution is that he cannot enact laws over-riding, amending or suspending the provisions of the constitution.  This, however, has to be examined in the light of restrictions that can be imposed on fundamental rights through Article 15 of the constitution.

2. The President by way of Article 33A has been made ‘responsible to Parliament for the due exercise, performance and discharge of his powers, duties and functions under the Constitution and any written law, including the law for the time being relating to public security.’  This responsibility was introduced by the Nineteenth amendment.

3. Under the 1978 constitution, where the President has brought into operation any law relating to public security under Article 3, by making a Proclamation, such proclamations shall be subjected to approval of the Parliament.  Article 155 (6) states “……. such Proclamation shall expire after a period of fourteen days from the date on which such provisions shall have come into operation, unless such Proclamation is approved by a resolution of Parliament….”

4. The PSO Section (2) (4) also provides that Proclamations made under emergency regulations shall expire unless such Proclamation is approved by a resolution of Parliament.

In modern jurisdictions legislative oversight of emergency regulations is an accepted norm.  Therefore, all emergency regulations made by the President shall be subjected to Parliamentary scrutiny.  This is, however, not a fool proof mechanism.  With a requirement like this, there can be some hope of avoiding the passage of oppressive laws under the guise of emergency rule.

Safeguards Under International Treatises

International human rights treatises which recognise the competing interests of the State and the human rights of its citizens also acknowledge the potential for abuse of authority by government under emergency rule. 

These treatises have adopted escape clauses so that governments at times of crisis may restrict the rights under the strict condition of proportionality.

For example, the International Covenant on Civil and Political Rights (ICCPR) Article 4 (1) states:

“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

Compare this with the eviction by executive order of Tamils of North-eastern origin from Colombo in 2007.

To be continued …

Related Posts:

Constitutional Reform: A Review Of The Proposal On Public Security – Part I

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Latest comments

  • 0
    0

    MASS L USUF: If ISIS is going to Attack Sinhale, should defending against it be a constitutional crisis ?

  • 0
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    Jimsofty!

    Don’t worry ISIS do not want to waste their bullet attacking you. Chill out man. Why do you want to comment on each and every subject on which you have no knowledge .

    • 0
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      Ahmed Nadvi: You talk like the ISIS LEader in Sri lanka. Are you ?

  • 1
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    Akmed,

    Don’t even think of lighting a bloody firecracker, we are waiting for an opportunity to strike. But you must make the first move just like in the eelam war so that later we can say who started it in the first place.

    The moment you start we will go berserk.

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