Sri Lanka: Understanding the PSO, PTA and CTB – Qs & As

Emergency rule can be declared when there is the existence or imminence of a state of public emergency.

by Mass L. Usuf

Sri Lankans after independence have lived lesser number of years freely and more years under emergency rule. Prior to the Janatha Vimukthi Peramuna insurrection in 1971, there were several instances when emergency rule was proclaimed. With the advent of the year 1971, emergency rule became almost a permanent feature. The longest being from 1983 to 2011 with short breaks in between. The last and the shortest of them all being the emergency proclamation in March 2018 during the Digana Sinhala/Muslim riots.

Emergency rule has serious implications on good governance, rule of law and human rights especially, because the police and armed forces are by law given extraordinary powers. These sweeping powers vested in the Police and armed forces have often been abused by them and such abuses have been documented by human rights organisations. Arbitrary arrests, detention, torture, disappearances, extra-judicial killings, so called ‘white vans’ are some of these misuses. Even the media had not been spared. This is a serious situation because the bureaucratic machinery, the Police and the security forces all work with the emergency rule ‘authoritarian’ mindset even at times when there is no emergency rule. Typically, what this means is that Sri Lankans have been, and are, literally continuing to live in a sort of Police state. This is the psychological impact of nearly 40 years of emergency rule – state actors with an authoritarian mindset and a submissive citizenry!

THE Q & A FORMAT

This column in the format of question and answer is an effort to create some awareness among the readers about the basics of the subject laws and the proposed CTB. It is expected that this will appear in several parts. The relevant legal provisions are cited to enable check accuracy and for further reading. I believe, it will help to understand how our rights and liberties can be subjected to violation under the above laws namely, PSO and PTA. The CTB is the proposed legislation which also has to be looked into with great care and caution. The PSO which is the first of such overarching pieces of legislation will be dealt with in this part.

Question (1) What does PSO, PTA and CTB mean?

The above abbreviations represent the Public Security Ordinance No. 25 of 1947 (PSO), Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 (PTA) and the current Bill in Parliament titled Counter-terrorism Bill (CTB) which was published in the Gazette on September 17, 2018

Question (2) For what purpose was the PSO passed?

The PSO was passed in 1947. The purpose of the PSO was to provide for the enactment of emergency Regulations or the adoption of other measures in the interests of the public security and the preservation of public order and for the maintenance of supplies and services essential to the life of the community. (See preamble to the PSO).

Question (3) When can a state of emergency be declared and by whom?

Emergency rule can be declared when there is the existence or imminence of a state of public emergency. It is declared in the interests of public security, 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. For example: the insurrections of 1971 and 1989, the separatist war, the 1983 ‘black July’ riots, racial riots in 2018. The proclamation can come into operation throughout Sri Lanka or in such part or parts of Sri Lanka as may be so specified.

The Proclamation can be made only by the President by Gazette notification upon which provisions of Part II of the PSO shall come into operation. (See Section 2 to the PSO).

Question (4) Can the proclamation of emergency be challenged in a court of law?

The answer to this is, ‘No’. A Proclamation under the Public Security Ordinance or the law for the time being relating to public security, shall be conclusive for all purposes and shall not be questioned in any Court, and no Court or Tribunal shall inquire into, or pronounce on, or in any manner call in question, such Proclamation, the grounds for the making thereof, or the existence of those grounds or any direction given under this Article. (Article 154 (J)(2) of the Constitution).

Further, Section 3 of the PSO also ousts the jurisdiction of the courts. It reads, “Where the provisions of Part II of this Ordinance are or have been in operation during any period by virtue of a Proclamation under section 2, the fact of the existence or imminence, during that period, of a state of public emergency shall not be called in question in any court”.

Question (5) What is meant by Emergency Regulation?

Under normal circumstances, it is the parliament that makes laws. However, upon the proclamation of a state of emergency, the President under the Public Security Ordinance has power to make regulations. These regulations which are made while the country is in a state of emergency are called emergency regulations (Section 5 of PSO).

Question (6) What are the dangers of Emergency Rule?

Under Emergency rules the President enjoys wide powers and authority. Also, many civil liberties of the citizen may be severely curbed. Civil liberties include the freedom of conscience, freedom of press, freedom of religion, freedom of expression, freedom of assembly, the right to security and liberty, freedom of speech, the right to privacy, the right to equal treatment under the law and due process, the right to a fair trial, and the right to life.

In the past, Emergency regulations have been used to requisition property, to control meetings, protests and publications; to supervise, arrest, and detain individuals; to influence investigations and trials and the list goes on. Unbridled powers under emergency rule pave the way for draconian laws to be made. By this, there is the potential for power and authority to be abused and the rule of law compromised as has been seen in the past.

According to the PSO, emergency rule is declared in the interest of the public. Ironically, the very same public are ‘terrorised’ both by the government and non-state actors who perpetrate violence. The security establishment often acts with impunity and conduct themselves in an obnoxious manner towards the public. The wish of the public is always to avoid the police and the armed forces. They do not want to even have eye contact with them.

The danger of an emergency regime is that a citizen who enjoys rights under the normal rule may be deprived of such rights under emergency rule.

Question (7) How can emergency Rule restrict our civil liberties?

As noted above, the President has the power to proclaim a state of emergency which cannot be challenged in a court of law. By virtue of this proclamation the President also has the almost unbridled power of making new regulations. The regulations are so powerful that it has the legal effect of over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution. (Article 155 (2) of the constitution).

However, even under the constitution certain fundamental rights can be restricted in the interest of national security (Article 15). For example, the Constitution prohibits the making of retrospective penal legislation. What this means in simple words is that if a person commits an act today which is not against the law, it will be a violation of his fundamental rights to pass a law in the future making such act an offence and then punish him for his past act. This guarantee of fundamental right ‘prohibiting retrospective penal legislation’ can be restricted in the interests of national security which includes regulations made relating to public security, see Article 13 (6). By this, the President has the power to make yesterday’s non-criminal act a crime today and, then, punish that person today for what he did yesterday, when the act was not considered a crime.

There are several other restrictions that can be imposed depriving the citizen of his fundamental rights, in the interest of national security, public order etc. These include the right to equality before the law, right to equal protection before the law, the right not to be discriminated based on race, religion, language, caste, sex, political opinion, place of birth. All of these rights can be restricted.

Many more of a citizen’s fundamental right entitlement like the freedom of speech and expression including publication; freedom of peaceful assembly; the freedom of association; freedom to form and join a trade union etc. also can be restricted by emergency regulations (Article 15 (7).

Question (8) Describe the Emergency Regulations that can be made under Part II of PSO which deprives a citizen of his rights?

The President may make any emergency regulation as appear to him to be necessary or expedient. Without prejudice to the generality of the powers conferred, the President can also authorise:

(a) The detention of persons;

(b) Taking of possession or control of any property or undertaking;

(c) The acquisition of any property other than land;

(c) To enter and search any premises without a search warrant;

(d) To suspend the operation of any law;

(e) To arrest and punish offenders as may be provided for by the regulations.

As citizens belonging to a constitutional democracy, it is the absolute right of everyone to defend, protect and safeguard our rights, freedom and liberty. To do this one ought to primarily know what these rights are and how can such rights be stolen under the pretext of democratic legislations.

Part II of this Q & A format will follow shortly. In that it is proposed to give an understanding of the Prevention of Terrorism Act and its impact on our rights, freedom and liberties.