Photo courtesy of The Hindu

On August 30, President Gotabaya Rajapaksa declared a State of Emergency across the island, on the basis that he was “Of the opinion that it is considered expedient to do so in order to ensure the Public Security and wellbeing and maintenance of supplies and services essential to the life of the community in view of the prevailing emergency situation in Sri Lanka in the context of the COVID-19 pandemic now steadily on the rise throughout Sri Lanka”. While this announcement came in the midst of local and international media reporting that food shortages were expected in the country, the Government has claimed that there are no such shortages and it was only a problem of food distribution due to the hoarding of supplies.

While the Public Security Ordinance (PSO) allows for the declaration of a State of Emergency in the interest of public security and order or for the maintenance of supplies and services essential to the life of the community, these are not two different types of Emergency. Effectively, the country is now under the same regime of Emergency it was for 28 years between 1983 and 2011and in 2018 and 2019 after racial riots and the Easter Sunday Attacks respectively.

What is the effect of the State of Emergency?

A Proclamation declaring a State of Emergency can be valid for one month (although the President may revoke it earlier). However, Parliament must approve this Proclamation within 14 days, failing which the Proclamation expires. A State of Emergency can be extended every thirty days but the approval of Parliament is required for extension.

The most significant effect of a State of Emergency being in force is that the President is empowered to introduce Emergency Regulations. These regulations can override any law except the Constitution. While this means that the regulations cannot generally override the Fundamental Rights Chapter, Article 15(7) makes an exception to this, allowing them to restrict Articles 12 (right to equality), 13(1) and (2) (freedom from arbitrary arrest and detention) and Article 14 (freedoms of speech, assembly, association, occupation, movement etc).

While the Supreme Court has developed certain standards requiring Emergency Regulations to be reasonable, proportionate and bear a nexus to the objective sought to be achieved, the enforcement of these standards would require the filing of a Fundamental Rights Application, which may take considerable time and resources.

What do the Emergency Regulations introduced in August do?

The President introduced the Emergency (Provision of Essential Food) Regulation No. 1 of 2021 on August 30. These regulations purport to be promulgated with the objective of preventing the hiding, interruption of distribution and charging of high prices of “especial food bulks” including rice and sugar, and causing market irregularities. However, in effect, the regulations fail to set out a clear procedure by which this is to be done. A competent authority is able to seize stocks of any essential food items, and distribute them at “state certified prices or custom specified prices”. The regulations suggests that there is an intention to create an offence of hoarding essential foods but the offence isn’t expressly set out, raising concerns of possible arbitrary steps that may be taken in the absence of clear procedures.

Equally concerning is that a bulk of the regulations deal with the declaration of “essential services” rather than provisions for the distribution of essential foods. In this regard, they are in many effects similar to the Emergency (Miscellaneous Provisions and Powers) Regulations of 2005, which were in place for several years. The present regulations are however narrower in what can be declared as an essential service; it must be a service for the collection, storing, refining, transporting and distributing of the specified essential consumer items.

A service being declared essential under the regulations carry with it serious consequences; any employee who fails to report to work or carry out work in terms of their terms of service will be terminated or considered to have resigned, in addition to being convicted of an offence. The President can also set out specified services where employees must work outside normal work hours and on holidays, or face the same consequences.

Additionally, any persons who interrupts, obstructs, delays or prevents the maintenance of an essential service, or “encourages” or “persuades” an employee of such service not to work can be convicted of an offence. This can even be done by way of a speech or an article, raising the concern that even a speech or article which critiques the functioning of an essential service may result in the author of the same being convicted of an offence.

There are other laws that were available to the President for declaring a service as essential. The Essential Public Services Act could have been utilised for this purpose, as well as Section 17 of the PSO, which can be put into use even in the absence of a declaration of Emergency. Emergency powers are an extraordinary power to be used only in exceptional circumstances of a clear situation of threat, danger or disaster and using these powers when properly enacted legislation already exists is an affront to the separation of powers.

Is the declaration of Emergency necessary?

It is concerning that the Emergency Regulations deal with matters beyond what they were purportedly promulgated to achieve, threatening to restrict the rights and freedoms of the citizenry beyond what the urgency of the situation requires. Additionally, even where they do seek to distribute essential foods, the Government has downplayed the situation, creating the impression that there is no food shortage and only an issue of distribution. This begs the question of whether the declaration of Emergency was really necessary, considering that it is an extraordinary and restrictive legal regime that must not be abused. If it is actually necessary for the distribution of food, then the Emergency must not extend beyond what is required, and effective consumer protection laws preventing anti-competitive practices should be put in by way of the ordinary legislative process. This must not be used to stifle dissent and restrict fundamental rights.

To read more, on the Emergency Regulations, see the Centre for Policy Alternative’s Initial comment on the Declaration of a State of Emergency and Regulations for the Maintenance of Essential Supplies and Services by clicking here.