Using emergency wisely; the need to tone down the January 6 regulations
It is now settled law that all regulations that are made under the Public Security Ordinance (PSO) should satisfy the tests of necessity and/or expediency and/or proportionality. We have numerous decisions of the Supreme Court to this effect, expounded by the judges at a time when the Court itself was far freer from the insidious tentacles of political interference that it is regrettably subject to now.

As a result of that all too brief and fleeting explosion of jurisprudence, we can claim to our credit particular principles of law that stipulate that the liberty of the subject is the overriding concern even during emergency times. In sum, these principles have effectively displaced the old judicial attitude that rights must take a backseat to emergency law in regard to issues as varied as arrest and detention under emergency and the right to free expression.

These principles come immediately to my mind when looking at the substance of the most recent emergency regulations of 6, January 2005 made by President Kumaratunga consequent to the Proclamation issued by her on 4, January 2005 bringing Part 11 of the PSO into operation and thereby declaring a state of emergency.

Particular concerns in regard to the inaccessibility of the regulations to the public and as to whether they are deemed to have lapsed after January 18th 2005 given that the Proclamation was not approved by the House within ten days of the last sitting of Parliament, namely 4 January 2005, thereby resulting in the Proclamation and the regulations lapsing two weeks later (see Article 155(6) of the Constitution), have already been raised by the Civil Rights Movement.

The National Human Rights Commission has also expressed its dissatisfaction with the substance of the regulations as well as with the fact that these regulations were available for public scrutiny and review only as late as February 25th, 2005 despite its impact being effective from 6 January 2005.

These concerns are extremely legitimate. At the very minimum, the public in this country deserve the right to know what manner of laws govern them and from what period of time, notwithstanding any situation of national emergency. This question has been raised time and time again in the past where we have had multifarious instances of the promulgation of emergency regulations without the public being made aware of them.

In substance, the regulations contain certain worrying clauses. Many of these clauses have already been commented upon including the admittance of confessions to police officers, automatic forfeiture of property and prescription of capital punishment or life imprisonment for several offences.

However, several more clauses also raise additional fears of overbreadth. These include Regulation 36(2) which states that the powers of the police under any emergency regulation may also be exercised by any person authorised by the President in that behalf. The regulations, like many of its predecessors, confer extensive powers on the police including the power to search any place, inspect and take possession of any movable property and conduct investigations.

The latter includes the right to question any person in pursuance of the committal of an offence under the regulations. A police officer thus has the right to question any person detained or held in custody under any regulation and to take such person from place to place for the purpose of such investigation during the period of questioning. Given this context, the presidential power to deem any person by executive fiat alone as a police officer for the purposes of putting into motion processes in respect of these regulations raise some worrying questions.

Similarly troublesome is Regulation 45 pertaining to the duty to answer questions imposed on any person taken into custody and detained under any emergency regulation. Sub-section (2) of this clause provides that any police officer or any officer authorised by the Commander of the Army, Navy or Air Force can remove such person from any place of detention or custody and keep that person in the temporary custody of that officer for a period not exceeding seven days at a time.

This latter regulation gives rise to vital questions of accountability. The word 'temporary" in this context has no magic and should be discounted, given the harsh import of the substantive provision itself. A similar relaxation of the normal period of twenty-four hours of detention ordained by the ordinary criminal law and procedure was proposed by the Organised Crimes Bill at a point not so long ago.

The draft law provided for a suspect to be kept in police custody for seven days subsequent to production by an SP or an ASP before the Magistrate, who has to be satisfied on reasonable grounds that the suspect has committed or been concerned in the commission of an offence. At that time, this clause was objected to on the basis that there was no requirement concerning medical supervision of such a suspect to ensure that he or she is not being tortured nor legal advice to be made available to such suspect. Neither was there any provision for the intervention of monitoring bodies such as the Human Rights Commission.

When the Bill being brought before the Supreme Court for constitutional compliance, the Court (comprising Shirani A. Bandaranayake, P. Edussuriya and J.A.N. de Silva) recommended amendment of clause 10 of the Bill in order that reasons be recorded by the Magistrate when magisterial supervision of the extension of custody is in issue.

Every such order should meanwhile stipulate the conditions of detention and hours of interrogation. An order may also be made that such suspect be examined by a medical officer, if necessary. The Magistrate was also required to take steps to notify the spouse or any family member nominated by the suspect, of the order of detention and the place of detention. It is axiomatic that these safeguards, in the minimum, should be provided in relation to detention in terms of Regulation 45(2) specifically. As it stands, the regulation has even more of a negative impact than the aborted clause in the proposed Organised Crimes Bill.

While the purpose of this column is not to embark on an exhaustive examination of the regulations in toto given space constraints, it is imperative that the January 6, regulations are toned down and made more proportionate to the situation if they are taken forward under a Presidential Proclamation issued afresh after February 8th 2005 which is when the Parliament next meets. Such an exercise is absolutely necessary if the tsunami is not to lead to an unfortunate re-emergence of the old draconian emergency regimes in this country.

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