Civil Society activists have filed two Fundamental Rights petitions in the Supreme Court seeking an Interim Order staying the operation of the Regulation 19 and 58 of Emergency Regulation No. 1 of 2019. These petitions had been filed by convener of Purawesi Balaya Gamini Viyangoda, Centre for Policy Alternatives and its Executive Director Dr. Paikiasothy Saravanamuttu naming the Attorney General and Defence Secretary Gen. (Rtd) S.H.S. Kottegoda as respondents.
When the matter came up before a three-judge-bench comprising Justice Prasanna Jayawardena, Justice Murdu Fernando and Justice S.Thurairajah, the two petitions were fixed for support July 5.
The petitioners stated that while a State of Emergency was not declared on the date of the Easter Sunday attack on April 22, 2019, the date following the attack, the President by proclamation declared a State of Emergency by way of Extraordinary Gazette No 2120/3, April 22, 2019.
They said the proclamation declaring a State of Emergency was put before Parliament on April 24, 2019 and it was passed unanimously without a division of the House.
Meanwhile, the petitioners emphasized that it is not the entirety of the State of Emergency that is challenged by way of these petitions since certain emergency regulations are needed for the time-being to better secure the safety of all citizens.
The petitioners stated that said Emergency Regulations violate the Fundamental Rights of the petitioner to the extent that they are disproportionate.
The petitioners stated that as per the proviso to Regulation 19(1), a person can be detained for up to a year upon an order by Secretary to the Ministry of Defence.
The judiciary has been denied a necessary role and discretion in the making and review of such decision. The petitioners stated that the procedure to obtain bail for a person detained under Regulation 19 is stipulated in Regulation 21(1). It states that a Magistrate cannot release a person on bail unless the prior written approval of the Attorney General has been obtained.
The petitioners stated that the judiciary has been ousted from reviewing detention orders made by an executive authority.
The petitioners stated this is an encroachment of the judicial power of the people enshrined in Article 4(c) of the constitution and such patent violation of Article 4 (c ) necessarily results in a simultaneous infringement of Articles 12(1) and 11 of the constitution.
The petitioners stated that in the event that a detention order has been made under Regulation 19, Regulation 21(1) allows for the person so detained to be kept in detention for up to thirty days before he is produced before a Magistrate.
These petitions had been filed through Raj Mohan Balendra. President’s Counsel M.A. Sumanthiran with Senior Counsel Viran Corea appeared for the petitioners.
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