18 September, 2021

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Emergency Declared Surreptitiously

By Jayampathy Wickramaratne

Dr Jayampathy Wickramaratne PC

On 30 August 2021, President Gotabaya Rajapaksa was reported to have issued emergency regulations relating to the supply of essential food items. The Presidential Media Division stated: “As per the powers vested in terms of the section 2 of the Public Security Ordinance, President Gotabaya Rajapaksa declared emergency regulations formulated as per the section 5 on essential food supply, with effect from midnight today, by enforcing directives under the section ii of the Ordinance. The authorised officers will be able to take steps to provide essential food items at concessionary rate to the public by purchasing stocks of essential food items including paddy, rice and sugar, at Government guaranteed prices or based on the Customs value on imported goods to prevent market irregularities which are causing inconvenience to consumers due to concealing of stocks of essential food items including paddy, rice and sugar and to prevent selling them at higher prices. This will be implemented in such a way that the loans granted to purchase stocks from the State Banks could be recovered from the borrowers. Major General M. D. S. P. Niwunhella has been appointed as the Commissioner General of Essential Services to coordinate the supply of paddy, rice, sugar and other consumer goods that are essential to maintain the livelihood of the people.” By Gazette Extraordinary Notification No. 2243/1 Part II of the Public Security Ordinance (PSO) has been brought into force.

The regulations look innocuous at first blush.  Most people would have welcomed them at face value in these difficult circumstances. Even the Opposition seemed at first to accept them without demur. It took almost a day for the Opposition to realise what had actually happened. Several local and foreign media reported that a mere “food emergency” had been declared.   

State of emergency declared

What most people did not realise is that the country had been brought under a fully-fledged state of emergency. A state of public emergency is declared under section 2 (1) of the Public Security Ordinance (PSO), which reads: “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 President may, by Proclamation published in the Gazette, declare that the provisions of Part II of this Ordinance shall, forthwith or on such date as may be specified in the Proclamation, come into operation throughout Sri Lanka or in such part or parts of Sri Lanka as may be so specified.” Part II of the PSO gives the President wide powers, powers to rule by decree.

Article 155 (3) of the Constitution states: “The provisions of any law relating to public security, empowering the President to make emergency regulations which have the legal effect of over-riding, amending or suspending the operation of the provisions of any law, shall not come into operation, except upon the making of a Proclamation under such law, bringing such provisions into operation.”

Not all actions permitted under the PSO require the declaration of a state of emergency as a prerequisite. For example, section 12, which is in Part III of the PSO titled “Special Powers of the President”, permits the President to call out the armed forces. Section 16 authorises the President to declare a curfew. Under section 17, the President may declare a service to be an essential service if he considers it necessary in the public interest to do so for the maintenance of any service which, in his opinion, is essential to the life of the community.

The devil is in Part II

What, then, is the constitutional significance of a state of emergency bringing Part II into effect? Article 155 (2) of the Constitution spells out the effect. “The power to make emergency regulations under the Public Security Ordinance or the law for the time being in force relating to public security 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.”

Now, therefore, the President is empowered to rule by emergency regulations made under Part II, which, unlike Bills, are not subject to pre-enactment judicial review by the Supreme Court. This is not to say that emergency regulations cannot be challenged. Such challenge would have to be by way of fundamental rights applications which, as we have seen, entail a certain amount of time for final decision.

The only constraint on a President who declares a state of emergency is that a Proclamation under section 2 of the PSO must be communicated to Parliament and approved by Parliament. The present Government has a two-thirds majority in Parliament and would have no difficulty in getting a Proclamation approved.

No necessity for an emergency

When the Covid-19 pandemic broke out in 2020, the Government said that it did not need powers under the PSO to deal with the issues arising out of the pandemic. Parliament had been dissolved on 03 March 2020, and a declaration of emergency would have resulted in the summoning of Parliament under the applicable constitutional provisions. The Government did not have a majority in that Parliament.

It is usual for any Government to inform the country that a state of emergency had been declared. Not so the present Government, which did so surreptitiously. The PMD release makes no reference to a state of emergency being declared and Part II of the PSO being brought into operation, merely saying instead that directives under a non-existent “section ii” of the PSO have been made.

The Government had all the time in the world to bring in any legislation needed to deal with the crisis but opted not to do so. TNA MP Sumanthiran moved the Public Health Emergency Bill as a Private Member’s Bill on 23 April 2021. The Bill provides for the declaration of a public health emergency.

Article 122 (1) of the Constitution inserted by the Twentieth Amendment permits “urgent Bills” in the interest of national security or for the purpose of any matter relating to disaster management. When its coalition partners opposed the re-introduction of urgent Bills, which had been done away with by the Nineteenth Amendment, the Government reached a compromise with them to restrict such Bills to those in the interest of national security and for disaster management. The Government is, therefore, free to even bring urgent Bills to deal with the pandemic.

The danger is that given the present Government’s propensity to stifle dissent, emergency regulations would be used to curb protests and other democratic action. The Government’s popularity is declining by the day, and even its most ardent supporters would find it difficult to disagree that no government in Sri Lanka had become so unpopular in such a short time. Every government that has declared a state of emergency used the power to rule by decree to restrict the rights and freedoms of the people. The coming months are likely to see the state of emergency being used to trample upon the democratic rights of the people.

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Latest comments

  • 6
    45

    This government appears to be NOT bothered about “popularity”.
    This is as it should be – the government must negate the cost of living, which is the concern of most of the citizens, and abolish corruption.
    This is a “military” government in all but name, and should go ahead in ensuring all benefits to the citizens, never mind how.

    • 34
      5

      And you call yourself “justice”!

      • 23
        0

        Jayasiri, I was about to ask the same. Instead should have called HYPOCRITE.

    • 24
      1

      justice :This government appears to be NOT bothered about –
      —-
      popularity”.This government appears to be NOT bothered about the people only bothered about Rajapaksa’s and their inner circle corruption
      ==========
      justice : This is a “military” government in all but name,
      —-
      The guy has 2/3rds majority and 20A executive power and he is still clueless about running a country.
      =======

    • 26
      2

      This is the reason why I believe, the months ahead are darker. All these were not overlooked, but 6.9 mio of fools risked it.
      .
      “The coming months are likely to see the state of emergency being used to trample upon the democratic rights of the people “

      • 22
        1

        Thanks to those 6.9 million , soon food will be rationed. They fully deserve it

        • 5
          1

          Hi Chiv,
          Get your minds set to eat Kurrakkan Pittu on Tuesdays and Fridays instead of Rice. Like tracing your footsteps back to 1970-1977.
          Good old days for the young and free to experience in splendour and with “progressive” government guidance.
          The Hal (Rice/Paddy) & Sugar checkpoints too, instead of security check points. Fun days are ahead.
          What an experience 50 years ago!

          • 5
            0

            Mahila, it’s already included in my staple diet menu. I worry what if I am denied of that too. The only positive side I see here is avoiding sugar is definitely good for health, regardless of age.

        • 3
          0

          The rationing has started and the queues are there, fortunately not so long, 45 years ago they start at 4 am for bread/milk!
          I cannot understand, why that is when these parties, SLFP/SLPP as main coalition partners come to power that the citizenry, inflicted this sort of pain.
          1970-77 and NOW, no FE for your own paid education overseas as I experienced, in May 1970. Politicians exempted. Enough is Enough of Jokers!
          You cannot blame this on Karma!
          This is utter failure in governance and total mismanagement of the economy/finances of the Republic, by uneducated, pompously crowing about Sovereignty; surrendering it without a whimper to obtain Chinese loans solely, to fatten their own wealth.
          It is very clear now it was based on ill-advised evaluation by “stooges and boot lickers”, who helped to rob the country prior to December2014, by taking Chinese loans beyond their repayment capacity for projects, providing insignificant returns; Only to boost their own ego! Billboards!
          These politicians, especially Mahendra Percival R, as President/Finance Minister from 2010 to 2014, who manifestly was the person culpable for this blunder, apologise to Sri Lankans at large and resign from the position of PM without any more silly excuses.

      • 7
        1

        “All these were not overlooked, but 6.9 mio of fools risked it.”
        This is why you say ! Watch what you ask for : You just might get it.

      • 4
        0

        leelagemalli

        Recently my Elders told me that in the 1970s the island was under emergency rule almost for the first 7 years. Under the cover of Emergency SLFP MP’s took over properties of those who refused to support SLFP candidates prior to the 1970 elections.

        The then MP from Ratnapura late Nanda Ellawala didn’t like the Lakshmi Theatre (cinema) Tamil Mudalali very much as he was a UNP supporter. Within few months of the election the Nanda made sure CWE took over the building for the purpose of storage, specifically for dry fish.

        That was the only Cinema which showed Tamil movies.
        It was not handed back until after 1977 elections.
        Because dry fish was store in that building cracks were started appearing on the walls, causing extensive damage.
        The reason it was gobbled by the CWE was that the Mudalali refused to give Nanda/SLFP his lorries for election work.

        Herein lies the danger, the clan could nationalise anything and everything you own or just take over, even without compensation.

        • 2
          0

          Native, I too have heard this , the reason being my elders were one time acquaintance of Ella family. I was also told during first JVP uprise Siri Mao declared curfew where army / government could temporarily posses any private vehicle/ property for their purpose. Those days now seems not so far.

        • 2
          0

          Dear NV,
          .
          Thank you.
          Even my elders told me the same, and we also had our paternal uncle in R pura.
          .
          This time, it will be far more dangerous going beyond all expected levels, because current bunch of criminals in power make every effort to paint the picture in favour of millitary performances. This is what that HIGH CHAPTER MONKS’ public statement intended ( හිට්ලර් කෙනෙක් තමයි අපට ඕන…. ඉතින් අපිට මොකො… තිරිසන්නු පිරුන දිවයින, අද පල විපාක වින්දිනව.- we need a hitler, become a hitler and save this nation.. ha ha).
          :
          As I closely study it, they dont seem to let HEALTH MINISTRY to make crucial decisions about vaccination marathons.
          :
          Just imagine, loads of world recognized BioNtech/Pfizer vaccines go under the carpet once imports enter the country.
          Those who go after pfizer vaccines, have to go wild in order to get their children (that hope to leave country for EU, USA and the like destinations) vaccinated. No proper plan even if MILLITARY is kept above in their ground handling process ????
          :
          But the truth as it is the numbers of vaccinations that the heath ministry has carried out are millions, while millatry personnel may have done it to few thousands. However, credit is given to millitary because PINGONA in power believes, if millitary woudl intervene things would end up being successful.
          :

    • 17
      0

      Justice,
      Yes, It is a military dictatorship.The emergency is to cover up and to maximise the corruption and not to reduce cost of living or ensuring benefits.

      • 8
        2

        Dr shavedra SIva , without shame explains for medical experts.. Dr Fernanupulle starts biting her nails. All other pundits in cabinet incl VAsidewa Nd wimale the asuchi mouth piece are in hibernation mode. .
        Wow mitacles🤩🤩☹☹☹☹☹🐃🐃🐃

    • 12
      0

      justice

      “This is a “military” government in all but name, and should go ahead in ensuring all benefits to the citizens, never mind how.”

      This is second step in the wrong direction.
      This is the prelude to building a president for life position.
      Gota is a saint who is building a second Dharmista State.

      • 15
        0

        Native, when poor have none to eat who else is better than our military in controlling dissent. Last time people protested for clean water and air and were shot dead. Soon it will be for food. In retrospect, Gotha came with the plan knowing well the outcome and didn’t waste time in appointing his military people. No other Rajapaksa is close and has influence on military, as Gotha do. It’s a family ploy so that rest including MR play second fiddle.

        • 5
          0

          chiv

          I don’t whether you remember Dayan’s typimg immediately after the 2015 election results were out, he complained/mourned/…. that it was not a victory for Sirisena at all as he failed to muster the support/votes of MAJORITY of the MAJORITY, hence that was not a victory, (nor an convincing victory for democracy and Sirisena).

          Now you do your analysis.
          When you have so called intellectuals among the intellectuals where do you think the island is heading.

          The danger is that the honest thinking persons population is dwindling, has almost reached the number Zero.

          We are left with people(?) like Field Marshal Gota, Kamala Gunaratne, Shavendra, Wimal, Udhaya, Jeyasumana, Rohana R. Wasala, ……. and every racists, bigot, crooks, murderers, saffron clad thugs to think for the entire island.

          Now the readers are generally fed with garbage by these racist “THINKERS”.
          What do you expect from ordinary people?
          Garbage in Garbage out.
          Finally we will have garbage mounts, yet we expect this island to overtake Singapore, Europe, States, Canada, …….. Japan, Korea, ….

          In the meantime we are very proud of our most destructive leaders, academics, functionaries, ……. .
          Eagle Blind Eye and his fellow bigoted racists believe the Nobel Committee has been discriminating Sinhala/Buddhists as it never awarded Prizes for Sinhala/Buddhists, who are entitle to 6 prices a year, every year.

          • 4
            0

            chiv

            Please refer to Rohana R. Wasala’s recent three part typing in Sri Lanka Guardian titled:
            “Racism, Nationalism and Supranationalism – I, II & III
            In part III he mentioned about Prof Indrapala’s thesis published in 1965/66, 56 years ago when we didn’t have computers, whatsapp, since then archaeology also has moved on. I bet Rohana didn’t even read the PhD thesis. …….. and Prof Stanley Thambiah’s Buddhism Betrayed: Religion, Politics, and Violence in Sri Lanka.

            I have no idea how this racist Rohana is qualified to even comment on both intellectual giants work. I wonder if Rohana knew the title of Prof Indrapala’s PhD thesis.

            I am sorry I see dumb asses on all sides who are active in destroying the long tradition of Seeking Truth.

          • 4
            0

            Native, I am appalled by the same thoughts. To be honest, among many unanswered questions I face, the biggest of all ” as a nation, how the hell did we reach such pathetic state” ???. People can call me pessimistic or what ever of their choice but I do not see any hope or future for our beautiful country. When grieving, earlier the better to have some closure.

            • 6
              0

              chiv

              The worry is not that we are monetarily bankrupt but intellectually bankrupt, which will take a century or so to recover, only if the racist Sinhala/Buddhist allowed.

              • 0
                0

                Native you are absolutely right.
                Bankruptcies of economy, politics, morality , religion , intellectuals, society as whole is what lead us to a bankrupt nation.

          • 0
            0

            Native yes I remember Dayans writing. The transition over years are appalling 1) Easter killings could have been prevented but some desperately wanted it. 2) public and prelates pleaded Sir saying only he can save them (not the nation) . 3) As promised from day one, without wasting time Sir created a military junta. 4) Ecomic, medical and other experts were sidelined, so that issues were handled as in war. Food scarcity, rationing, emergency, economic crisis, lockdown, curfew are to be expected in such/war situations says Sir. Message is get ready to sacrifice for the sake of country. This time the war is against an invisible force.(created ??)

            • 0
              0

              Pandemic management as in war. 1) There was NO reason what so ever for lockdown until few months ago, but when a lockdown was suggested at the peak of crisis Sir was not willing. I guess its unconventional wartime strategy of Sir to attack enemy when not expected 2) purpose of early lockdowns were to control election results for desired results.3) Native with your permission, adding to current thinkers Rajiva. Late Rajeewa, Laksiri, Rusiri, DJ, Gamage, Malinda, Mahindapala— 4) News providers Ada, Derana, Rupavahini, Island who provide 24 / 7 media comments of politicians and thinkers as news. Previous news sources Wimal, Vasu, Gomman have been retired for Rambuk, Johnston, Dilum , Cabraaaal ___.

      • 2
        0

        NV,
        May I add with your permission:
        “The blessings of the Sangha are with the proponent of the scheme, otherwise would they have promoted the proponent’s 2nd coming? Now they seem to be helpless. Not only them Viyath Maga, GMOA et all who had a fanfare promoting forgetting the tyranny of the 1st coming 2005 to 2014!
        May we pray and invoke the blessings of the triple gem on innocent victims, the Sri Lankan voters/citizens, so that they soon overcome their suffering and prosper with freedom and Democracy and not D O’crazy.
        Buddham Saranang Gota Baya!”

        • 2
          0

          Mahila

          I agree.
          Don’t forget Assgiria welcome a Hitler in Gota.
          Do you know what the Karaka racist council is up to now?
          The Council must be studying Genvindu Cumaratunga’s numerous proposals on constitution, in case if new constitution allowed equitable opportunity and equal rights to all people.

          On the onset of nation building process it started with a racist model, ….. denying descent rights to all people, the process went on and we are in the middle of loosing every right, ultimately Majority lost and a clan and its “b***s” carriers won.

    • 1
      0

      Justice,
      Your, “This government appears to be NOT bothered about “popularity”.
      Why do they need popularity with the masses as they already have a Defacto military government manned critical positions by Military men, who served (incidentally relevant) in the same regiment as Gota and probably at times under his command before discharge prior to US escapade.
      Why is that Sri Lankans are so inept to understand realities and what is coming in the future.
      Are they Company naïve?

      • 0
        0

        Sorry, wrong word instead of company – So – should be interpolated.

        • 0
          0

          Justice, Same with elections too. It’s now conducted and won based on wishes of a community, not anymore populatity.. I call it DEMOCRAZY. Emergency is because of public not having enough food , income, health care, employment ___ unless you are thinking of some nonviolent,peaceful,mute protests, masochistic hunger strikes by our already starving people.

  • 2
    0

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  • 5
    4

    Notice the thumbnail photo for this article?
    Nandasena is not wearing a mask but the military man is wearing one?
    Mask wearing is virtue signalling. It is also an occult masonic ritual designed to insult the most high (he did not create us to walk around with our faces covered) but also to show subservience to satan (a way of saying i wont speak out against the devil).
    By itself it is totally useless for preventing viral spread. You have to wear a full hazmat suit for that to happen.
    On top of that these mass produced masks also have nano tech spread on them:
    https://www.youtube.com/watch?v=PEeQQKc69DA

  • 12
    1

    Dang Bohoma Sapai. P(F)ull Satisfaction. What to tell otherwise?
    Wait earnestly for the balance editions of the episode!

  • 2
    1

    20A plus emergency replace the PTA ,to put the sugar price down do you really need this trapped law,is sugar or vaccine …asked for drinking water regardless,Aluthgama…..burnt down the pasta factory left the owner to see the ashes,Ranjan in Silva out….high time Aiya lost his fame,Malli came through the back door to put the fuel price ……..

  • 1
    1

    20A plus emergency replace the PTA ,to put the sugar price down do you really need this trapped law,is sugar or vaccine …asked for drinking water regardless,Aluthgama…..burnt down the pasta factory left the owner to see the ashes,Ranjan in Silva out….high time Aiya lost his fame,Malli came through the back door to the fuel price ……..

  • 10
    0

    The Dumb asses who voted for him will now get to taste what it is like to live under Hitler aka Gotler. This includes one of the Mahanayakes. Good on you lot especially those that refuse to accept your own stupidity and keep defending these scoundrels. Emergency once imposed will never be lifted. Why?, because it becomes too easy to impose your own will. The power it brings is addictive to the leader who uses it. There was always an alternative and that was to let any importer to import sugar and sell at market prices the same goes for any other commodity. But alas that cannot be done because Gotler’s campaign funders who include many prominent Muslim businessmen have to be rewarded with monopoly rights in various sectors while the Bhaiyas are totally ignorant of the facts. There has been no government in the history of Sri Lanka that slavishly rewarded its campaign funders to such an extent that by slashing Tax revenue the nation went bankrupt which in turn led to emergency rule.

  • 3
    0

    Sri Lankans,
    Ask for “Drinking Water” and Army Opens Fire.
    Ask for “Sugar at reasonable price”, Emergency regulations!
    Please do not appeal to the President, but direct it to the Mahanayake and pay homage to Dalada Maligawa.
    Not to Carlton, Tangalle or Presidents House, Colombo!
    New phase of Life in Sri Lanka!
    Whither Sri Lanka?

  • 1
    0

    The Policemen who made the appeal to the Mahanayake, be forgiven as it is the smartest thing to do!

    • 0
      0

      Mahila,
      .
      Bhiishanaya is part and parcel of RAJAPAKSHE politics.
      .
      Wait and see, all this will come on them, one by one, in a form of karmic retribution.
      .
      As of today, – just study it closely, GR, MR, BR, NR, CR and all in that brutal family seem to shy to press briefs.
      :
      GR will have to pull the trigger on him, while keeping him in his hideout- JANATHIPATHI MANDHIRAYA.
      .
      All these will be BREAKING news in the days to come. Mlechcha media TV channels would further be busy with their TELEDRAMA series and selfish gains leaving general public in a lurch.
      This is the SYMBIOSIS architected by MR et al, for their political survival, but that will also speed up their downfall/extinction.
      .
      We believe in good KARMA…. wait and see.. I see something regarding their brutal future…. I really dont know what it is…. it will be similar to KUNKANDHA collapse…

  • 0
    0

    Under Emergency Eat Cake if there is no Bread would be the refrain; or better still,the Govt:would provide oxygen cylinders in lieu of food…………

  • 0
    0

    Thanks JW bringing this to light.
    At least now, does the populist Mahendra Percival Rajapaksa (cheap populism, promising undeliverable benefits to voters at election time whilst handling the Finance portfolio (3 times from the time he ascended as Finance Minister of SL), cannot take cover saying that, “I did not know the financial position of the country”.
    To say the least, stop BS to the masses!
    “You went into the entrapment with your eyes wide open so to say.”
    Symbolism of the low educational egoistic approach of the politicians!
    Please give up politics now and for ever as PM and apologise to the Hoodwinked voters of Sri Lanka.

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