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