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Thursday May 6th, 2021

New emergency regulations cause for concern – experts

Constitutional and legal experts have voiced concerns over some of the more problematic emergency regulations introduced in response to Sunday’s suicide attacks that killed 359 people.

According to Director, Edinburgh Centre for Constitutional Law, Dr. Asanga Welikala, the Executive has gone for the maximum amount of power possible with the new regulations. Calling it one of the most “draconian sets of emergency regulations ever”, Dr. Welikala said it sees major expansions of the national security state which could adversely affect fundamental rights guaranteed by the Constitution.

“They have certainly gone for the maximum power possible. There is also a whole range of new offences created in the regulations, some of which can be very problematic,” he told RepublicNext in a phone interview earlier today.

One of these, according to Dr. Welikala, is the carrying out of acts with the intention of intimidating the population.

“Who decides that? Can a mass trade union action be construed as an attempt to intimidate the population?” he said, noting the overbroad nature of the newly introduced offences – some of which may be punishable by death.

Considering that a State of Emergency cannot override fundamental rights, he said, in the event of a serious abuse of the regulations, questions would invariably be raised.

“It would be interesting to see how the Supreme Court would deal with such a situation, because the powers claimed here are so inconsistent with the current set of fundamental rights protected by the constitution,” said Dr. Welikala.

To uphold the validity of the regulations, the courts would have to do a lot of work themselves, he added.

The new regulations, according to Dr. Welikala, gives power to the Executive to, among other things, requisition immovable property, vehicles, etc, while detention up to one year is also permissible with courts being unable to grant bail without the permission of the Attorney General.

“All these are possible. There are severe implications potentially for freedom of expression, both for social media as well as the mainstream media, as content regulation is permitted,” he said.

Of particular concern in this regard is Regulation 15, which concerns the “control of publications” and other regulations relevant to publication.

According to Attorney-at-Law and Research Director at Verité Research Gehan Gunatilleke, regulation 15 has four features of note: namely, restriction on publications, censorship prior to publication, restrictions on newspapers and printing presses, and advisory committees to hear objections.

“First, a competent authority (CA) is given the power to restrict the publication (in Sri Lanka) or transmission (to a place outside Sri Lanka) of something that might be prejudicial to national security, or certain other similar aims,” said Gunatilleke in a brief shared with this website.

Other aims include public order and the maintenance of essential services. The decision to issue directions can be based on the opinion of the CA, he said, adding that the general focus of this regulation is on the ‘publication’ of something.

However, according to Gunatilleke, the term ‘transmission’ can include sharing information to a place outside Sri Lanka even privately. Any person who contravenes a direction of a CA is guilty of an offence.

The CA in question, as defined in Emergency Regulation 2, is “any person appointed by name, or by office, by the President to be a competent authority.”

A CA can require material, including news reports, editorials, articles, and cartoons, to be submitted to the CA before publication. Regulation 15 therefore appears to enable prior censorship, Gunatilleke went on to say.

“A plain reading of this provision suggests that the CA’s powers are broad enough to cover any publication that, in the CA’s opinion, might be prejudicial to national security or certain other similar aims,” he added.

If an offence relates to publishing a newspaper, said Gunatilleke, the president can prohibit the person convicted of the offence from publishing a newspaper in Sri Lanka.

“Alternatively, if a person contravenes a direction of a CA, and the contravention relates to publishing a newspaper, or if the CA is of the opinion that something calculated to be prejudicial to national security or other such aims is likely to be published in a newspaper, the CA may prohibit the printing, publishing and distribution of that newspaper,” he said.

In the case of a contravention, the CA is required to first give a warning to the person, he further said, adding that, however, no warning appears to be necessary when the CA is of the opinion that something calculated to be prejudicial to national security or other such aims is likely to be published in a newspaper.

Regulation 15 defines ‘newspaper’ to include any form of publication, but Gunatilleke believes this definition could potentially include online publications.

Dr. Welikala agrees.

“I think it is understood that online publication is included. It’s a little unclear, but when you look at the whole thing entirely, I think that is very much in contemplation,” he said.

According to Gunatillake, the CA may prohibit the use of a printing press for any purpose, and may even authorise its seizure. These powers, according to Gunatillake, aren’t limited to a newspaper specifically identified by the CA but may apply to any other newspaper that publishes the same content.

“The powers of seizing a printing press extends to situations where the CA is of the opinion that the printing press is likely to be used to produce a document calculated to prejudice national security (or other such aims), even if such document is not meant for publication,” he said.

Lastly, the advisory committees are to be appointed by the President to hear objections from dissatisfied parties. The committee is required to inform the proprietor of an offending newspaper that he or she can make representations to the President and make objections to the committee. However, the President may revoke the Committee’s report with said objections or representations or vary the order.

Other offences include disseminating ‘rumours or false statements likely to cause public alarm’ (regulation 32). Regulation 33, meanwhile, prohibits printing material that ‘gives information on or comments on the activities of any banned organisation, or any matter pertaining to investigations of the government into a ‘terrorism movement’, or any matter pertaining to the security of Sri Lanka.

For example, said Gunatilleke, publishing a leaked intelligence document would be prohibited under this regulation.

When a newspaper contravenes any provision of regulation 15, he said, the proprietor, manager, editor and publisher of the newspaper are all separately guilty of an offence.

“The consequences of committing an offence under regulations 15, 32 and 33 are contained in regulation 49. The regulation provides that a person guilty of an offence can be punished with rigorous imprisonment for a term not less than three months and not exceeding five years, and to a fine of not less than five hundred rupees and not exceeding five thousand rupees,” he added.

President Maithripala Sirisena had initially said that only emergency regulations pertaining to terrorism were to be introduced in the wake of the attacks.

“Yes, the Government did say that it’s going to be a conditional state of emergency, but someone can argue that these are exactly the kind of powers we need to deal with this threat,” said Dr. Welikala.

Looking from a security standpoint, he said, someone might argue that, given the scale of the threat, this kind of extraordinary power is needed.

“What is necessary for you may not be necessary for me, so it can be very controversial,” he added.

According to the law, emergency regulations have to be extended by Parliament every 30 days. Given the seriousness of the situation, however, it is likely that Parliament will continue the regulations for the foreseeable future.

“We’re still in the immediate aftermath of the attack. Developments are taking place almost on a daily basis. I think we can with some reasonable certainty say that this is not going to end soon,” said Dr. Welikala.


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