Photo via The Telegraph

The need to reconvene the Parliament was already a conversation in society, a new issue on the legality on the imposition of curfew was highlighted when the Nugegoda Magistrate granted bail to a former Parliamentarian, who was initially arrested for contravening the imposed curfew regulations. Appearing on behalf of the former Parliamentarian, the learned President’s Counsel argued that the police curfew presently imposed has no legal validity.

The legal basis of the ‘police curfew’ was already a conversation amongst lawyers, advocates, jurists and others in the legal domain, since its imposition on the 20^th of March, 2020 by the Acting Inspector General of Police. Ironically, the Attorney-General of Sri Lanka interpreted this as a ‘quarantine curfew’ under the Quarantine and Disease Prevention Ordinance, keeping away from the Public Security Ordinance which has the only legal reference to the term ‘curfew’ in the Sri Lankan law. The atmosphere of such conversation stimulated, at a time when the Legislature is dysfunctional, and the system of governance heavily relying on the actions of the Executive.

State of Emergency and Curfew

The terms ‘State of Emergency’ and ‘Curfew’ are variedly distinct. The most recent imposition of a State of Emergency was following the Easter Sunday attack in 2019. Accordingly, a State of Emergency should be understood as a situation of exceptional threat, danger, or disaster in which the government is given extraordinary powers (not permitted during normal times) to deal with the threat, including powers to restrict certain fundamental rights.

The President may issue a Proclamation of a State of Emergency where, “the President is of the opinion that it is expedient to do so, 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 operation of the Parliament during the time of a State of Emergency is mandatory and, according to Article 155 (4)(i) of the Constitution of Sri Lanka, the Proclamation of a State of Emergency is considered “as a summoning of Parliament to meet on the tenth day after such Proclamation, unless the Proclamation appoints an earlier date for the meeting which shall not be less than three days from the date of the Proclamation”, in case it is issued after the dissolution of the Parliament. The reconvening of the Parliament under a State of Emergency is a stern mechanism to restrict the arbitrary actions of the Executive and to uplift the absolute rights of the citizens even during a period of emergency.

Nevertheless, it should be understood that, under the present pandemic, Sri Lanka is NOT under a State of Emergency but under the imposition of a police enforced curfew. The question remains with the public, whether the imposition of the curfew has been conducted legally when the Parliament has been dissolved throughout its imposition.

Curfew or Lockdown?

The term “curfew” and the legal enforcement of it, is indicated only in Section 16 of the Public Security Ordinance (PSO) of Sri Lanka, and not even in the Constitution of Sri Lanka. In accordance to Section 16 of the PSO, under circumstances where the President considers it’s “necessary to do so for the maintenance of public order in any area, he may, by Order published in the Gazette” impose curfew. Strangely enough, however, Sri Lankans have not been made aware of an official gazette announcing curfew. The only official documentation made available to the public, is an announcement by the Acting Inspector General of Police (IGP) on the 20^th of March, 2020.

While this quick response by the Acting IGP must be commended, the imposition of police curfew by him, however, disputes the PSO, for such imposition remains a responsibility of the President. Section 06 of the PSO establishes a legal foundation for this by allowing the President to empower “such authorities or persons as may be specified in the regulations to make orders and rules for any of the purposes for which such regulations are authorized by this Ordinance to be made”. However, since the outbreak of Covid-19 in Sri Lanka, there has been neither an official gazette nor such delegation of powers by the President to the Acting IGP to make orders and rules for any of the purposes for the regulation of this virus i.e. the Acting IGP has no delegated powers by the President to announce the imposition of police curfew.

Furthermore, the announcement by the Acting IGP, declared the imposition of curfew “in terms of the provisions of the Quarantine and Disease Prevention Ordinance of Sri Lanka”. This creates another intriguing issue. The Quarantine and Disease Prevention Ordinance of Sri Lanka, under Section 02 and 03 designates power to the Minister of Health Service, and under Section 11 allows the Minister of Health to appoint the Proper Authority. Consequently, through Gazette Extraordinary No. 2168/06, the Minister of Health named the Director General of Health Services as the proper authority under the Quarantine and Disease Prevention Ordinance, on March 25^th, 2020.

As mentioned above, the Acting Inspector General of Police imposed curfew on the 20^th of March, 2020, which indicates that, at the time of announcing the imposition of curfew, he:

1. Possessed no delegatory power from the President, in accordance to the Public Security Ordinance, and
2. At a time when the proper authority under the Quarantine and Disease Prevention Ordinance had not been appointed,

leads to an unauthorized decision by him. Therefore, it must be understood that the imposition of curfew during the initial point of time was illegitimate.

Following the court case at the Nugegoda Magistrate, the Acting IGP sought advice from the Attorney- General (AG). According to the AG, the Director General of Health Services “acting in terms of Regulation 37 of the Regulations titled “Quarantine Regulations; Regulations relating to the storage of Grains and Regulations relating to Ancylostomiasis” published in Gazette notification No. 7481 dated 28/8/1925,  amended by the aforesaid regulations, has delegated to you (the Acting IGP) the powers to implement the said Regulations to control and prevent the disease Covid-19”. Therefore, the imposition of a lockdown, since the 25^th of March, 2020 constitutes a legal validity

Accordingly, it must be understood that based on the Quarantine and Disease Prevention Ordinance and following direct instructions of the proper authority appointed under it, the Inspector General of Police has the capability of initiating a lockdown. While local media reports of a “Police Curfew”, the Attorney-General has not specifically mentioned the term ‘police curfew’ or mentioned the Public Security Ordinance in his letter to the Acting IGP. Instead he points out the present situation as a “Quarantine Curfew” under the Quarantine and Disease Prevention Ordinance.

Despite the fact that the Quarantine and Disease Prevention Ordinance, exclusively contains requisite regulations and the legal framework to enforce a Lockdown, as pointed above, the term ‘Curfew’ can only be found in Section 16 of the PSO and can only be imposed by the President, unless such responsibility is delegated by him to another individual or body. Therefore, the usage of the term ‘quarantine curfew’ does not resolve the issue at hand.

While the average citizen will not find a significant difference between the two terms, ‘Curfew’ and ‘Lockdown’ (which has currently been defined as quarantine curfew), what must be understood is the legal implications that the terms carry. The usage of the term ‘Curfew’ in all its forms, require the convening of the Parliament in order to legally extend, relax and reimpose curfew.

Parliament to be reconvened

While the proclamation of a State of Emergency by the President in a context where the Parliament is dissolved, by virtue of the proclamation, the Parliament is automatically summoned, but the same cannot be said on the imposition of curfew, since the term ‘curfew’ is not specified in the Constitution of Sri Lanka. However, to fill this void, one should look into the Public Security Ordinance, which has the only legal directive and definition to the term ‘curfew’ in the law of Sri Lanka. Thus, legally addressing the issue at hand,

• Section 21(2) of the PSO stipulates “the provisions of subsection (3) of section 2 shall, mutatis mutandis, apply to an order made under section 12, section 16 or section 17”.
• Section 02(3) of the same prescribes, “where a Proclamation is made under the preceding provisions of this section, the occasion thereof shall forthwith be communicated to Parliament, and, if Parliament is then separated by any such adjournment or prorogation as will not expire within ten days, a Proclamation shall be issued for the meeting of Parliament within ten days”.

The constitution of Sri Lanka identifies the execution of law by the Executive alongside limited law-making powers. However, under a State of Emergency or Curfew, in accordance to the PSO, the President is unable to determine a course of action without the Parliament. Hence, it can be understood that the President of Sri Lanka is obliged to officially gazette the imposition of curfew and thereafter disclose the details of the gazette to the Parliament, whereas in the present context by reconvening the Parliament.

Conclusion

While this article reviews the legal validity of the procedure followed to impose curfew and the actions taken by the Executive and its respective departments, given the prevailing pandemic situation, it is the duty of every responsible citizen to respect all laws and regulations imposed as a preventative method to control the spread of coronavirus.