Emergency Regulations must be ‘reasonable and proportionate’ | Sunday Observer

Emergency Regulations must be ‘reasonable and proportionate’

Two prominent civil society activists challenged sections of the current Emergency Regulations in the Supreme Court last week, on the basis that several provisions of the regulations infringe upon the fundamental rights of Sri Lankan citizens.

The Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu and Purawesi Balaya Convenor Gamini Viyangoda filed the fundamental rights applications on Monday, June 10.

The matters were fixed for hearing on July 5, before a three-judge bench of the Supreme Court, comprising Justices Prasanna Jayawardane, Murdu Fernando and S. Thurairajah. The Attorney General has been cited as a respondent under the terms of Article 35 of the Constitution, and in his official capacity in the petitions, which also cites Defence Secretary Shantha Kottegoda as a respondent in the case.

The CPA Petition is challenging Regulations 4, 8(2), 10, 18, 19 and 58 of the Emergency Regulations published in the Gazette of Monday, April 22, 2019.

Petitioners have requested the Court to grant them leave to proceed in the case and interim relief by staying the operation of what they claim are problematic regulations contained in the Gazette. The petitioners seek a judgment from the Supreme Court that the specific regulations laid out are an infringement and imminent infringement of fundamental rights as provided for in the Constitution.

The petition by the prominent civil society organisation notes that the petition does not challenge the declaration of the State of Emergency, but only some of the regulations contained in the Gazette.

Among the regulations being challenged by the CPA, are Regulation 58 (1) and 58 (2) which makes it lawful for “any police officer of a rank not below that of Deputy Inspector General of Police or any other officer or person authorised by him on his behalf, to take all such measures as may be necessary for the taking of possession of and the burial or cremation of any dead body.”

Regulation 58 (2) stipulates that it shall not be necessary for such an officer taking measures relating to the possession and burial or cremation of a dead body under the Emergency Regulations to comply with other provisions of the regulations or any other written law relating to the inquest of death or to burial or cremation.

The petitioner points out that Section 370 of the Code of Criminal Procedure provides judicial oversight which is an essential check in ensuring that powers are not abused. “Granting the above powers to a police officer to take away the possession of and the burial or cremation of any dead body at his sole discretion and also do away with the requirement of an inquest is disproportionate and could lead to a situation where suspicious deaths are hijacked by the law enforcement authorities and abuses of Emergency Regulations resulting in the deaths of those in custody are conferred effective impunity by enabling the erasure/preventing recognition and/or record of suspicious custodial deaths,” the petitioner states.

The petitioners note that while certain emergency measures are needed to combat security threats that the country is currently facing, the position it takes is that such Regulations must be reasonable, and proportionate to the means that they seek to achieve, especially when they have the effect of curtailing the Fundamental Rights of the citizens of the country. M.A. Sumanthiran PC, Attorneys-at-Law Viran Corea, Bhavani Fonseka, Khyati Wickremanayake and Inshira Faliq appeared for the CPA.

Attorneys-at-Law Viran Corea, Bhavani Fonseka, Khyati Wickremanayake and Inshira Faliq appeared for Viyangoda.