Explainer: What is this State of Emergency?

Explainer: What is this State of Emergency?

What is a state of emergency, how does it affect you, and what do you need to know about how it works? We break down the complex laws into an easily understandable summary.

@April 2, 2022

Read this article in English | සිංහල | தமிழ்

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Story by Yudhanjaya Wijeratne Edited by Aisha Nazim Translated by Mohammed Fairooz & Nishadi Gunatilake

The President has declared a nationwide State of Emergency.

There’s a lot of misleading information, including scare-mongering by otherwise well-intentioned people going around right now. So, we spoke to a few lawyers to explain, in simple terms, the State of Emergency and what you should know as a citizen of Sri Lanka.

Please note that I am not a lawyer, and while this document has been prepared with the input of lawyers, it exists only to educate and dispel misinformation.

What is this thing?

A state of Emergency is a ‘trigger’ that activates certain powers for the President that are enshrined in the Public Security Ordinance (PSO). I’m embedding an annotated copy of the PSO here for your reference.

The Public Security Ordinance is an old piece of law (originally dating back to 1947) that gives the President extraordinary power. Its effects have been implemented in different forms over the years and modified with add-ons, but essentially, the PSO comes in three parts:

1. General

Which states that a State of Emergency must be announced by the President to obtain the right to use the powers enshrined in the Emergency Regulations. This is called Proclamation of Emergency (PoE), and has to be gazetted (as has been done).

2. Emergency Regulations

Which gives the President the ability to pass wide-ranging Emergency Regulations that can override all other laws, except for the Constitution.

3. Special Powers

Which are powers that the President has access to at any time, if he feels that the police are not sufficient to maintain public order.

There’s a specific sequence that has to be unlocked here.

The General part of the PSO essentially forces the President to declare a state of Emergency before the powers of Emergency Regulations can be used.

It also comes with limits. Under Article 155 of the Constitution of Sri Lanka, a PoE can be valid for up to one month. However, for it to be valid for the entire one month, it needs to be approved by Parliament during the first 14 days of the PoE — that’s Article 156 of the Constitution.

Now, 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 can, if they choose to, do a whole lot of stuff, such as:

  • Amend any law, suspend any law, and apply laws with or without modification.
  • Authorize arrests and detention of anyone.
  • Authorize the possession or control, on behalf of the State, of any property or undertaking — especially buildings alleged to be linked to terrorism.
  • Acquire, on behalf of the State, any property other than land.
  • Authorize the entering and search of any premise.
  • Prevent public meetings, such as processions (and protests).
  • Prevent people from entering areas, leaving their residences, confiscate passports or other documents, search or arrest anyone.
  • The President can also confer these powers onto Ministers authorized by the President or to appoint people as ‘competent authorities’.
  • Via ‘a competent authority’, restrict the publication of anything deemed to be a threat to national security; this includes text, photos, video, and so on; as seen in later amendments (Chapter 40), this can get extremely broad[1].
  • The President can also declare anything to be an essential service and appoint a Commissioner-General of Essential Services for the whole of Sri Lanka, whose job it is run all activities relating to the maintenance of essential services - we saw the use of this in 2021, where Major General M. D. S. P. Niwunhella was appointed as the Commissioner General of Essential Services to coordinate the supply of paddy, rice, sugar and other consumer goods.

To use these powers, the President must issue a gazette notification announcing Emergency Regulations for whatever they want to do. Emergency Regulations also expire when the State of Emergency expires: that is to say, when Parliament refuses to extend it any further.

So the keyword is that the President can; it does not mean that these powers are in place right now. For those powers to be used legally, a gazette must first be issued. Additionally, there are several Fundamental Rights offered by the constitution that cannot be overruled:

  • Freedom of thought conscience and religion (Article 10) cannot be restricted.
  • Freedom from torture, inhuman or degrading treatment (Article 11) cannot be restricted.
  • You cannot be put to death by the State except by way of a death sentence issued by court (Article 13(4)) - so, for example, WhatsApp rumours claiming that the army can shoot you at will are false.
  • Your right to go before the Supreme Court and complain of an Fundamental Rights violation (Article 17) cannot be curtailed.

Then there are the Special Powers, which are at the President’s control whether or not there is a State of Emergency. For example, on March 21, the President invoked Chapter 40 to summon the armed forces to maintain public order in practically every district in the country.

Lawyer Ermiza Tegal has created this helpful graphic to understand how this still can be activated, based on what happened post-Easter Sunday attacks:

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Limits apply here, too. Orders presented with these Special Powers have to be gazetted every month, or they become invalid. They can also be cancelled by a gazette.

Is this legal?

Yes. This is the Constitution we live under.

These are powers designed to run a British colony with, and then modified to fight a war with, tacked onto a constitutional philosophy of making the Executive President the most powerful person in the country. Post-war, these systems are still in effect. CPA has written about what this means for fundamental rights — they point out that Emergency Regulations, if implemented, can strip away 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.

Technically the Proclamation of Emergency is unchallengeable in court (see section 03 of the PSO, these are referred to as ‘ouster clause’ i.e., ousting the jurisdiction of court). In 1980, the Supreme Court said that they cannot review a PoE (Yasapala v Ranil Wickremasinghe).

However, the Supreme Court can and has looked into whether there has been a reasonable basis for restrictions on rights (they use the term rational and proximate nexus). For example, in Joseph Perera v Attorney General and Karunathlaka v Dayananda Dissanayake and Lilanthi de Silva v Attorney General etc, the Court has reviewed the reasonableness of Emergency Regulations. In Joseph Perera v Attorney General, the Court said that while it can give weight to the opinion of the President that the Emergency Regulation is necessary in the interest of pubic security, the court can still question the necessity of the Emergency Regulation and whether there is a proximate or rational nexus between the restriction imposed by the Emergency Regulation on a citizen’s Fundamental Rights.

What does this mean for me? and you?

As we said, at present, all we have is a Proclamation of Emergency. Subsequent emergency regulations have to come out as gazettes. What we suggest is keeping an eye on documents.gov.lk for the Extraordinary Gazettes being pushed out from now on. When non-routine decisions are made by Presidents, they have to appear here.

This will let you understand at least some decisions that are being made at the top. If any of the wide range of powers of the PSO are being invoked, this way, you’ll know.

It is hard to overstate the importance of gazettes. Regardless of what politicians, opinionated thought leaders or WhatsApp messages say, actual, legal decisions regarding this matter have to appear as gazettes, and indeed they do.

If Parliament opposes the State of Emergency, it has a natural expiration.

It’s also important to know that for most of our adult life (going off our general readership stats here), we’ve spent more time in a State of Emergency than out. In 1983, a State of Emergency was declared; it was ended only in August 2011. In 2018, after the Kandy incidents, then-President Maithripala Sirisena declared another State of Emergency. Another one was declared in 2019, after the Easter Sunday attacks. In 2021, President Gotabaya Rajapaksa declared a state of Emergency to control food prices and used Emergency Regulations to appoint Major General N.D.S.P. Niwunhella as the Commissioner General of Essential Services.

Going by this history, a State of Emergency hasn’t completely prevented speech or protests in the country or activists and journalists from doing their thing.

However, legally, there’s a lot that you can be hauled up for. The Minister for Public Defense, Dr. Sarath Weerasekara, has stated that ‘steps are being taken to tighten security in several places’. The Prevention of Terrorism Act (PTA), which has extremely broad powers, is still in effect, regardless of whether or not there is an Emergency.

Keep in mind that this is a simplification of a lot of legalese, and you should be extremely careful when attempting to interpret laws. There’s policy, there’s implementation of policy, there’s court decisions made about said policy, and lastly, there's a whole bunch of other laws that come to bear in very case-specific ways. If you find yourself in trouble, consult a lawyer.

If you’re concerned about the Emergency, don’t share rumours or speculation. There’s a lot more to this than going ERMAHGAAAWD in a group chat. The best thing to do is raise a hue and cry to your elected representatives in Parliament to make sure that they do not extend the state of Emergency.

We would like the thank all the lawyers who contributed to this piece. Without their expertise, a whole lot of bullshit would have gone unchallenged.

Footnotes:

[1] From the Emergency Regulations declared in 2005 after the assassination of diplomat and Minister of Foreign Affairs Lakshman Kadirgarmar: 26) Whoever by words whether spoken or written or by signs or by visible representations or by conduct or by any other act, advocates, urges or advises directly or indirectly the necessity, duty or desirability of overthrowing or overpowering, otherwise than by lawful means, the Government of Sri Lanka by law established shall be guilty of an offence. 27) No person shall affix in any place visible to the public or distribute among the public any posters, hand bills or leaflets, the contents of which are prejudicial to public security, public order or the maintenance of supplies and services essential to the life of the community. 28) No person shall, by word of mouth or by any other means whatsoever, communicate or spread any rumour or false statement which is likely to cause public alarm or public disorder. 29) Any person who prints or publishes any document recording or giving information or commenting about, or any pictorial representation, photograph or cinematograph film of any of the following matters :—

a) the activities of any organization proscribed under these regulations

b) any matter relating to the investigations carried on by the Government into the terrorist movement;

c) the disposition, condition, movement or operations of the Police, Sri Lanka Army, Sri Lanka Navy and Sri Lanka Air Force;

d) any matter pertaining to the defence and the security of Sri Lanka;

e) any matter likely, directly or indirectly to create communal tension; shall be guilty of an offence.

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