Constitutional Reform: A Review Of The Proposal On Public Security

By Mass L. Usuf –OCTOBER 24, 2017

Mass Usuf

Public security and its emergency law accompaniment are tools that can in many instances legalise executive action which would otherwise be considered illegal under the rule of law.  This two part article is aimed at critiquing the proposal of the Steering Committee for Constitutional reformsrelating to Public Security and the existing law on the subject.  The focus would be on abuse of authority and the protection of fundamental rights of the citizens.

The past, both locally and internationally, has provided several instances when the Pubic Security Act or Emergency Regulations has been invoked culminating in abuse of authority and depriving the citizens of their basic rights. This is a tool which has been legally made available to governments to be used for the benefit of the country and its citizens.  While many have used it for the purpose it was designed for, there are also those who have gone beyond.

Our neighbour, the world’s largest democracy, had a dark period during the Prime Ministership of Indira Gandhi which has been nicknamed, ‘The Emergency’ – from 1975 to 1977.  It all began with the President of India on the advice of the Prime Minister in the wee hours of June 26, 1975 declaring:

“In exercise of the powers conferred by clause (1) of Article 352 of the Constitution, I, Fakhruddin Ali Ahmed, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by internal disturbances.”

This facilitated Indira Gandhi to govern by decree. She supressed civil liberties, fundamental rights and imposed press censorship.  All norms of a democratic government were suspended as the days of the emergency rule progressed. The then prevalent condition captured succinctly reads:

“From the memoirs of Indira Gandhi’s closest advisors, we learn of a near absence of deliberations or democratic debate on the merits and advisability of the instrument of emergency. The emphasis before and during the emergency has always been on depoliticizing substantive issues, removing these from the domain of political negotiations and judicial review. Major policy decisions were implemented through executive fiat, skirting parliament.” (Shabnam Mallick and Rajarshi Sen, January 2006 – Institute of Defence and Strategic Studies, Singapore.)

The Sri Lankan Record

In Sri Lanka, during the debate at the bill stage of the Public Security Ordinance of 1947 (PSO), in the State Council, W. Dahanayake of the LSSP expressed himself in hyperbolical language:

“This Bill will go down to history as the meanest and dirtiest law…I describe it as the most dastardly, the most cruel, the most brutal law that has been inflicted upon the working classes of any country, not excepting Nazi Germany or Italy under Mussolini. Here, under the provisions of this Bill, there is complete and hundred per cent annihilation of civil liberties…I say that this Bill is something which no civilized society should consent to.” (Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective, Nihal Jayawickrama).

Public Security Ordinance of 1947, Section 2 reads:

“(1) Where, in view of the existence or imminence of a state of public emergency, the President is of opinion that it is expedient so to do 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 President may, by Proclamation published in the Gazette, declare that the provisions of Part II of this Ordinance shall, forthwith or on such date as may be specified in the Proclamation, come into operation throughout Sri Lanka or in such part or parts of Sri Lanka as may be so specified.” 

The vociferous Dahanayake who promised to repeal the PSO, in the wake of unprecedented communal violence in 1959 was subdued. He said in his address to the nation, inter alia:

“It is true that our Government party before the elections felt that the Public Security Ordinance may be safely repealed. But what has happened in recent times has convinced us…that any Government needs legislation of this type as a safeguard for the people.” (ibid)

Republican Constitution of 1972

The first Republican constitution of 1972 invoked the Public Security Ordinance via Section 134, ‘subject to the provisions of the Constitution and subsection (2) of this section’.  Sub section (2) to 134 stated:

“(2) Upon the Prime Minister advising the President of the existence or the imminence of a state of public emergency, the President shall declare a state of emergency. The President shall act on the advice of the Prime Minister in all matters legally required or authorised to be done by the President in relation to a state of emergency.”

The above clearly lays down the authority to declare a state of emergency with no mention about any regime to check abuse of authority or violation of fundamental rights.  The PSO on the other hand augmented such wide powers by ousting judicial review of ‘the fact of the existence or imminence’ of a state of emergency, by its Section 3. 

“Where the provisions of Part II of this Ordinance are or have been in operation during any period by virtue of a Proclamation under section 2, the fact of the existence or imminence, during that period, of a state of public emergency shall not be called in question in any court. (Public Security Ordinance 1947, Section 3).

The PSO further strengthened executive action clearly distancing the judiciary by Section 8.

“No emergency regulation, and no order, rule or direction made or given thereunder shall be called in question in any court.”  (Public Security Ordinance 1947, Section 8).

Public security is a mechanism devised to protect the nation and its people at a time of emergency.  It can be a threat to the life of the nation by external aggression or internal disturbance or even a natural disaster.  Such powers bestowed on the executive by-passing legislative oversight are exceptional circumstances.  They cannot be used to oppress and suppress the freedom and liberties of the very people for whose protection these powers have been granted.  However, experience bears testimony as to how powers have been used by the executive to the extent of near unaccountability and abuse of authority.  In relation to the 1972 constitution, Radhika Coomaraswamy notes:

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