Emergency laws in Sri Lanka

The emergency law framework and its frequent use significantly impacts the freedom of expression  

There is a degree of international consensus on the factors that contribute to a justified state of emergency, with particular regard to it being of an exceptional nature, presenting a grave and imminent threat to the life of the nation. The provisions of the PSO do not seem to satisfy these definitional benchmarks. Vague terms referring to the ‘opinion’ of the President and ‘expedient’ are difficult to reconcile with the international requirements. This leaves room for abuse of the emergency laws in circumstances that are far below the severity of an existential threat. This has been the case in practice

The use of emergency laws has been a pervasive issue in Sri Lanka since its independence. Most notably, this has related to the Public Security Ordinance of 1947 (PSO), which has conferred an extraordinary degree of power to authorities – the use of which has been extensive and often encroaching on fundamental rights. Balancing the situations where such laws are warranted with mitigating its risk to individual rights and liberties has been a historical concern in most democracies – but is perhaps all the more relevant to Sri Lanka as a post-conflict state looking towards reconciliation. 

A background of near continuous conflict and instability, along with extensive use of emergency powers in retaliation by successive administrations has resulted in a situation where issues relating to emergency laws have been far from uncommon. The arbitrary use of these powers has contributed to a chilling effect on free speech. The extraordinary nature of these powers means that the fundamental rights framework in the country, and any improvements to it, may be susceptible to circumvention by repressive administrations. 

There is a case to be made, that a careful appraisal of the emergency laws framework in Sri Lanka would be particularly relevant in the context of reconciliation and peace building. As a post-conflict nation, avoiding future instability requires ensuring different groups confidently feel that they are equal stakeholders in the democratic process. In a democracy, the state draws its legitimacy over citizens by ensuring that people are free to shape the democratic process through their freedom of expression. The curtailment of those rights can result in such groups feeling disenfranchised and raises the risk of them resorting to violent or extremist means. It follows that a holistic approach to reconciliation requires safeguards to these rights, even in times of emergency. This article takes a brief look at the emergency law framework in Sri Lanka and some of its vulnerabilities. 

The Public Security Ordinance

The Public Security Ordinance was one of the final laws brought in towards the end of the colonial era. It was mainly brought in as a tool to counter increasing political dissent at the time and the effect of worker strikes and disruption by trade unions and Marxist factions. Even then, concerns were raised in the State Council as to the potential risks of misuse of these powers. As the political context in the country shifted over the years, with the rise of terrorism and instability, the focus of these powers moved away from trade union activity to these new threats. 

The use of emergency powers can be traced back to its use by British colonial administrations to clamp down on dissent. Martial law was used by authorities to respond to the riots in the Kandyan regions in 1848, utilising severe punishments of execution and banishment to quash the rebellion. The measures taken by the administration were so harsh that it resulted in heated protests by officials who demanded that the Governor be recalled – which then led to a Parliamentary Committee of Enquiry (members of which included future Prime Ministers William Gladstone and Benjamin Disraeli). 

On 11 June 1947, the Public Security Ordinance was passed by the State Council (the precursor to the Parliament, as the legislature established by the 1931 Donoughmore Constitution), not long before the country gained independence on 4 February 1948. The motivation behind this legislation being rushed through has been attributed to the growing influence of radical Marxist parties. Following a period of industrial action from 1945-147, they had increasingly been able to demonstrate an ability to pose a formidable challenge to the ruling government – perhaps positioned as serious electoral contenders. 

During the debates on the passage of the PSO during the Bill stage, there were some council members that advocated for amendments to mitigate the impact of some of the excessive powers of the PSO – proposing limiting the duration of a proclamation of emergency, requiring approval from the Council, and permitting judicial review – however these efforts proved futile, and the Bill was passed without these safeguards. In the following years, the PSO was amended multiple times. The first government of independent Ceylon brought amendments in 1949 to reflect some of the proposals suggested during the debate stage of the bill, such as requiring Parliamentary approval. In 1953 and 1959, subsequent amendments were brought in expanding the powers of emergency following left wing strikes and communal riots. 

Some progressive amendments were brought in 1978 by J.R. Jayewardene’s government – they alleged that the emergency powers had been misused by the previous government. These amendments prima facie strengthened the authority of Parliament in deciding if a state of emergency could continue to have effect. The extension of a state of emergency beyond 30 days would require parliamentary approval. However, due to the vast powers of the Executive President, a deferential Parliament, and the introduction of the Prevention of Terrorism Act – these changes were largely nugatory in practice. Ironically, the leftist parties that had initially taken a principled stand against the excessive powers of the PSO, later utilised it with enthusiasm once in power. 

The PSO grants the President the power to declare an emergency and to make any regulations that ‘appear to him to be necessary or expedient in the interests of public security and the preservation of public order and the suppression of mutiny, riot or civil commotion, or for the maintenance of supplies and services essential to the life of the community.’ The PSO allows the President to, at his discretion, issue a wide range of regulations relating to the detention of persons, seizure of property, suspension of laws, calling out the armed forces, establish a curfew, etc. Chapter Xiii of the Sri Lankan Constitution sets out the constitutional provisions for public security and explicitly recognises the PSO – regulations brought in through the PSO will have the legal effect of overriding any other law, except provisions of the Constitution. 

For the sake of brevity, this article will not go into the details of the provisions of the PSO or how it operates – but will highlight some of the key issues with its use in practice below. 

Defining emergency

Generally, advanced democracies should be able to deal with emergency situations through the use of ordinary legislation framed as emergency laws (for example, the British terrorism legislation and the US Patriot Act). However, it is not uncommon for constitutional democracies to provide for emergency powers through constitutional provisions. One of the main issues in this regard is defining what constitutes an emergency. The Sri Lankan Constitution does not provide much in terms of an objective basis upon which emergency laws are to apply. Sole discretion as to declaring a state of emergency lies with the President. 

Although the PSO does not set out a definition for the circumstances that necessitate a state of emergency, it does inform as to its intended use – ‘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 is entitled to declare a state of emergency and bring in emergency regulations. It is possible to infer from this the intent behind the emergency law framework that the PSO establishes and therefore possibly, at least to some degree, the general conditions that would require a state of emergency to be declared. 

The main issue of definition that arises in constitutional accommodation of emergency laws, is establishing when the circumstances are sufficiently severe enough to require emergency powers. The ICCPR defines a public emergency as a situation that ‘threatens the life of the nation’, whilst the Paris Minimum standards define it as an ‘exceptional situation of crisis or public danger, actual or imminent, which affects the whole population or the whole population of the area to which the declaration applies and constitutes as threat to the organised life of the community of which the state is composed (also see UN Human Rights Committee General Comment no. 29 and Siracusa Principles s 39). 

There is a degree of international consensus on the factors that contribute to a justified state of emergency, with particular regard to it being of an exceptional nature, presenting a grave and imminent threat to the life of the nation. The provisions of the PSO do not seem to satisfy these definitional benchmarks. Vague terms referring to the ‘opinion’ of the President and ‘expedient’ are difficult to reconcile with the international requirements. This leaves room for abuse of the emergency laws in circumstances that are far below the severity of an existential threat. This has been the case in practice. 

Emergency laws have been frequently used almost continually since independence (rather than as a matter of exception) even being used for matters within general government far below the threshold of emergency for matters better addressed through ordinary legislative procedure. For example, emergency laws have been used in matters relating to the quality of salt, school boards, banks, forestry, and driving licences. The lack of objective definitional benchmarks as preconditions has resulted in ambiguity allowing for democratic legislative procedures to be bypassed for rule by emergency. 

A more preferable framework would establish a high definitional bar for declaring a state of emergency, take into consideration whether ordinary laws would be sufficient to address the issue, ensure that the measures are strictly required by the exigencies of the situation, and make sure that emergency laws are not used as a pretext to limit fundamental rights. 

A more preferable framework would establish a high definitional bar for declaring a state of emergency, take into consideration whether ordinary laws would be sufficient to address the issue, ensure that the measures are strictly required by the exigencies of the situation, and make sure that emergency laws are not used as a pretext to limit fundamental rights

Oversight

The framework of emergency laws in Sri Lanka puts Parliament within an oversight role. A state of emergency must be communicated to the Parliament forthwith and extensions to the emergency must be approved monthly. The Parliament can also alter or revoke emergency resolutions through resolutions. This may seem like the legislature would play a significant role in safeguarding and limiting the potential for excess in the use of emergency powers. However, the creation of the powerful executive presidency through the 1978 Constitution has rendered its role substantially minimised. The Parliament has, in practice, essentially acted as a rubberstamp continuously approving emergencies and not exercising its power to revoke regulations. 

The original text of the Constitution provided for a safeguard to prevent against the arbitrary extension of emergencies, setting out that a two-thirds majority would be required to approve a further extension of a state of emergency if ‘a period of ninety consecutive days or a period of ninety days in the aggerate during six consecutive calendar months’ had passed since the initial declaration. However, this was repealed by the 10th Amendment to the Constitution. Such a safeguard would substantially disincentivise arbitrary extensions to emergencies where circumstances do not warrant it. 

Furthermore, the emergency laws are framed in a way to avoid judicial oversight. Article 154J (2), introduced in the 13th Amendment to the Constitution, seeks to prevent judicial review of emergency proclamations. The PSO itself also contains ouster clauses to prevent scrutiny by the courts and preventing them reviewing the actions of state officials operating under emergency laws. However, despite the explicit limitations, the courts in Sri Lanka have been able to assert some oversight. The Supreme Court was initially reluctant to challenge the authority of the executive in relation to emergencies, but the landmark case of Joseph Perera v Attorney General marked a shift in the approach of the court to these issues, opting to interpret the ouster clauses in the PSO narrowly. 

As the PSO cannot override the Constitution, the court can review regulations based on a proximity of a measure and its rational nexus to the aims of a measure. This article will not delve into the jurisprudence relating to emergency laws, so to make it brief – the Supreme Court has asserted itself and expanded its oversight role. However, this is still limited. Ideally, the courts would have a greater role in safeguarding against excesses (particularly considering the legislature’s lacklustre impact in this regard so far) – achieving this would require a greater willingness of the Supreme Court to expand its role, as well as constitutional amendments to allow for judicial review (although it is accepted this may be politically difficult). 

Freedom of expression

The emergency law framework and its frequent use significantly impacts the freedom of expression. In a general sense, considering the extraordinary nature of these powers, the lack of adequate safeguards puts fundamental freedoms at risk. There are justifiable circumstances where the freedom of expression may be limited, but this must be only as far as strictly required by the exigencies of the situation. Previous emergency regulations have provided for extraordinary censorship powers granting the state an astonishing degree of control over speech, far beyond legitimate requirements. The impact of these regulations on free speech has been exacerbated by state willingness to resort to its use unduly and arbitrarily. Some emergency regulations have provided for preventative detention – meaning that arrest may be possible based on future threat. 

Furthermore, the PSO and emergency regulations have accorded the state enormous powers of arrest and seizure of assets. The powers set out in emergency regulations are often vague and open to abuse. The liabilities arising from breaching emergency laws can be difficult for the layperson to foresee. The regulations are often complicated and complex – even the Attorney General’s department, despite themselves wielding powers through the regulations, has struggled to collate the regulations in operation. 

Conclusion

In times of existential crisis, there is a case for situations where emergency limitations on democratic norms and fundamental freedoms are justified. States may have to derogate from fundamental rights to protect from imminent existential threats. However, such derogations must be precise and limited to what is absolutely necessary. Emergencies must not be arbitrarily applied, nor can it be effectively extended into perpetuity. This framework must be the exception, not the norm. 

An agenda for reform could include the original safeguard provided for in the Constitution requiring a two-thirds majority to extend an emergency beyond 90 days, explicit definitional criteria setting out the circumstances necessitating a state of emergency, requirements to tailor regulations within principles of foreseeability and narrow application, greater willingness of the legislature to exercise its oversight role (admittedly more of a matter of political culture), and explicit provision for judicial review. 

Such reform would allow for the emergency laws to operate with adequate safeguards and more in line with international norms. This may also prevent arbitrary use of emergency laws – as an example, the UK Civil Contingencies Act of 2004 setting out emergency powers, contained stringent criteria for its use, resulting in its use being disincentivised and governments preferring to use ordinary legislative routes. 

Such reform may be difficult to achieve considering its contingence on political will – yet it is worth considering to ensure a framework in which stability, reconciliation, and democratic norms/fundamental freedoms can be protected. 

[The writer holds an LLB (Hons), LLM (Public International Law), and is a Barrister-at-Law (England and Wales), PhD Candidate and part-time Tutor (Durham University).]