FR on Emergency Regulation: State undertakes to rescind certain impugned clauses

By S.S. Selvanayagam

 The Supreme Court yesterday deferred the Fundamental Rights Petitions contesting certain impugned clauses namely 58(1) and 58(2) in the Emergency Regulations.

The Bench comprising Justices Priyantha Jayawardena, Lalith Dehideniya and S. Thurairaja re-fixed the matter to 8 October for granting of Leave to Proceed.

The impugned clauses make it possible for the Deputy Inspector General or any other authorised officer or person to take possession and bury any dead body decided at his discretion what person will be allowed to be present at the cremation or burial and enabling the Deputy Inspector General not to follow requirements of the Criminal Procedure Code relating to inquest.

The counsel for the Petitioner indicated that if it is rescinded, the application will be pursued in respect of other aspects that are in violation of fundamental rights.

The petitions were filed by Purawesi Balaya convener Gamini Viyangoda as well as the Centre for Policy Alternative (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu.

Petitioners cited the Attorney General and Defence Secretary Gen (Rtd) S.H.S. Kottegoda as Respondents.

Instructed by Moahan Balendra, M.A. Sumanthiran PC with Viran Corea, Bhavani Fonseka appeared for the CPA while Viran Corea with Lewis Ganeshananthan and Khyati Wikramanayake appeared for Gamini Viyangoda.

Additional Solicitor General Farzana Jameel with Deputy Solicitor General Nerin Pulle and Senior State Counsel Azad Navavi appeared for the Attorney General.

Petitioners while claiming that they are not challenging of the Declaration of a State of Emergency but rather some of the Regulations which are found in Gazette Extraordinary No. 2120/5 dated 22 April. They note that certain emergency measures are needed to  combat security threats but such Regulations must be reasonable and proportionate to the means that they seek to achieve when they have the effect of curtailing the fundamental rights of the citizens.

They cited Regulation 4 which states: “Any power, duty or function conferred on the President by any Emergency Regulation may be exercised, discharge by any minister who is authorised in that behalf by the President.”

They underlined that as per the Public Security Ordinance, the President can only provide to empower the making of orders and rules for the purposes for which the Regulations are made and it does not permit the President to delegate any power, duty or function imposed on himself making such regulation ultra vires.

They impugned that while it is not contested that some Emergency Regulations are necessary to combat the threats of terrorism and acts of violence, some of them are excessive in nature with potential abuse and disproportionate to the aim which may be expected to seek to achieve.

They also pinpointed the restriction of judicial discretion in sentencing and the wide powers for restriction orders with no judicial oversight as well as the preventive detention orders made by the Defence Secretary without judicial discretion or oversight.

They refer to the prolonged detention without production before a Magistrate as well as the powers over inquests.

They stressed that the judiciary has been ousted from reviewing detention orders made by an Executive authority and charge this as an encroachment of the judicial power of the people.

They allege certain Regulations are hence serious imminent violations of a number of fundamental rights of the citizens guaranteed under the Constitution.