Order made by the President under PSO published in Gazette No 2172/8
In terms of this order made under Section 12 of the Public Security Ordinance (PSO) found under its Part III, all the members of Armed Forces specified under 1st Schedule have been called out for the maintenance of public order in areas of the country specified under 2nd Schedule to it with effect from 2020/04/22. The question arises as to whether the provisions of Sec 12 of the PSO can be made relevant without the declaration of the state of public emergency by the President by the proclamation.
The PSO (Chapter 40) consists of 3 parts, Part I contains powers of the President in enforcing provisions of Part II, the effect of the Provisions of Part II & the related procedural aspects. Part II contains Public Emergency Regulations and provisions relating to delegation of Powers under the Ordinance. Part III contains special Powers of the President under the PSO.
Sec 2(1) of the PSO makes provisions relating to the declaration of state of public emergency, This Sec 2(1) reads as follows. “Where in view of the existence or imminence of the state of Public Emergency, the President is of opinion that, it is expedient so to do in the interests of Public Security & 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”
On examination of the above provision, it is evident that in order to make order under Part II of PSO, firstly, the Proclamation should be issued under Sec 2(1), to make effective the Part II of the PSO. It is only thereafter, order can be made under Part II of the PSO.
In the Easter Bomb attack on 2019/04/21 in Sri Lanka, the country faced such an incident, a threat to national security. The former President issued a Proclamation under Sec 2(1) of the PSO. Thereafter, Security Forces were called out under Sec 12 of PSO and Emergency Regulations were imposed under Sec 5 of the PSO by the relevant Gazette notifications. Sec 2(1) of the PSO is relevant for the Part II of the PSO. But Sec 12 is found in Part III of the PSO. Accordingly it is on the face of it evident that Sec 2(1) provisions are not relevant for regulations made under Sec 12 of the PSO. However, at that time there was no problem of making regulations under Sec 12 of PSO, since the state of public emergency had already been declared by the Proclamation in the Country. But the present position is calling out Armed Forces under Sec 12 by the President without declaring a state of public emergency by a proclamation.
At this stage it is necessary to pay attention to Sec 21 of the PSO, since it is this Section which makes Provisions for procedure relating to regulations made under Part III of the PSO. But Sec 21 does not say that, provisions in Sec 2(1) is applicable or declaration of State of Public Emergency is necessary. This indicates that, although Sec 12 Provision is enforced calling out by Order of the President, Armed Forces for the maintenance of Public Order due to circumstances endangering the Public Security in the country, there is no necessity for such Order made under Sec 12, to be declared by way of Proclamation under sec 2(1). Accordingly it is evident that, the President has correctly made a valid order under Sec 12 of the PSO.
It is next necessary to know the procedure to be followed after making order under Sec 12 of PSO. This procedure is found in Part III of the PSO under Sec 21. Here Sec 21(2) is relevant. Sec 21(2) reads as follows;
“The provisions of subsection (3) of section 2 shall, mutatis mutandis, apply to an order made under section 12, section 16 or section 17 in like manner as they apply to a Proclamation made under subsection (1) of section 2”. According to aforesaid Sec 21(2) Provisions of Sec 2(3) applies to order made under Sec 12, as it applies to our present case in point.
Now it is necessary to refer to Sec 2(3) of the PSO. The content of Sec 2(3) is this; “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, and Parliament shall accordingly meet and sit upon the day appointed by that Proclamation, and shall continue to sit and act in like manner as if it had stood adjourned or prorogued to the same day.
The fact that the occasion of making of a Proclamation under subsection (1) cannot be communicated to Parliament by reason that Parliament does not meet when summoned to meet as provided by this subsection shall not in any way affect the validity or operation of that Proclamation or of the provisions of Part II of this Ordinance or anything done under that Part: Provided that in such event, Parliament shall again be summoned to meet as early as possible thereafter”.
It is important to note is that, aforesaid section and circumstances are applicable where the Parliament is adjourned or prorogued only and not on the occasion of dissolution of Parliament. In fact the provision already referred to does not deal with the situation of dissolution of Parliament, as we are facing now. Hence the PSO is silent in the manner of action when an order is made under Sec 12 of the PSO.
The manner of action where Parliament is dissolved is found in Sec 2(4) and later sub sections of Sec 2. Moreover there are no provisions for Sec 2(4) and other subsections of Sec 2 relate to Sec 12 under Sec 21 of the PSO. Therefore it is clearly evident that there are no provisions in the PSO to apply and give effect to an Order made under Sec 12 to link it with Sec 21 where such order under Sec 12 of PSO is made during the times of dissolution of Parliament.
Article 155 of the Constitution and Public Security
Then it is now necessary to examine the scope of Art 155 of the Constitution in relation to President’s Orders made under Sec 12 of the PSO by way of Gazette Notification No 2172/8 dated 22/04/2020. In our Present Constitution there is a Chapter – XVIII on Public Security, It is provided in Art 155(1) that the PSO as amended and applicable prior to the commencement of the Constitution shall be declared to be a law enacted by Parliament.
As provided in Art 155(2) “The power to make emergency regulations under the PSO or the Law for the time being in force relating to public security include power to make regulations having the legal effect of over-riding, amending or suspending the operation of the provisions of any law except the provisions of the Constitution”.
An order to give effect to above power, Art 155(3) requires the making of a Proclamation under such law. Here the question arises as to whether Order made under Sec 12 of the PSO can be considered as a Proclamation referred to in Art 155 (3) of the Constitution. One can argue that Art 155(3) refers to a Proclamation made under any law which authorises the President to make emergency regulations and provisions relating to emergency regulations are found in Sec 5 of the PSO. As orders made under Sec 12 of the PSO is not an order for making emergency regulations, Order made by the President under Sec 12 cannot be embodied under subsection of Art 155 of Constitution. However on analysis of Art 155 (3) of the Constitution, one can find that, Art 155(3) has not been drafted narrowly not only to cover the PSO but also any other law relating to national security in force or even to cover any such future law as well. Art 155(3) also refers to the nature of emergency regulations. Accordingly such emergency regulations have the legal effect of over-riding, amending, suspending the operation of the Provisions of any law.
Moreover on examination of the provisions of Sec 12(2) and (3) of the PSO reveal that, these two provisions appear to have the effect of amending certain Provisions of the Criminal Procedure Code No 15 of 1979. Accordingly order made by the President under Sec 12 of the PSO can more or less take the form of a proclamation made by the President read with Art 155(3) of the Constitution. Therefore the deficiency found in Sec 2(3) of the PSO appears to have been remedied by Art 155(3) of the Constitution. In terms of Art 155(4) (i) if such Proclamation is issued after dissolution of Parliament, such Proclamation should operate as a summoning of the Parliament to meet on the 10th day after such Proclamation, unless the Proclamation appoints an earlier date.
The Constitution contains such Provisions as stated above as a means of Parliamentary Review because these occasions are very important, since Executive President engages in law making functions which is the main function of the Legislature. This law making power of the Executive President is temporary. The remaining subsections of Art 155 further provide protection to Parliament to preserve its Supremacy power.
Therefore in this situation, there is an issue as to whether order made by the President under Sec 12 can be considered as a summoning of dissolved Parliament. On examination of this matter Writer’s view is that, the President’s order made through Gazette notification No 2172/8 dated 2020/04/22 may not be clearly related to Art 155(3)
In concluding remarks, health authorities will give green light to civil authorities to go for election. We do not presume that health authorities wait till the last corona patient is recovered, to give the green light to the country to commence the election. Franchise is one aspect of sovereignty of the people and could not be compromised anyhow. We trust the EC in this endeavour too.
In the Writer’s view, as discussed in this article, President’s Proclamation and the nominations are valid. In the Writer’s view, there is no such emergency situation to re-summon the Parliament up to now.
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