FR petitions challenging ‘Emergency’ withdrawn | Daily News

FR petitions challenging ‘Emergency’ withdrawn

The Fundamental Rights petitions filed by civil society activists seeking an Interim Order staying the operation of Regulation 19 and 58 of the Emergency Regulation No. 1 of 2019 were withdrawn by petitioners before the Supreme Court yesterday. Senior Counsel Viran Corea appearing for the petitioners moved Supreme Court to withdraw the petitions citing that Emergency Regulations are not currently in force.

‘Petitioners wish to withdraw this application in view of their right to make fresh application if any Emergency Regulations with provisions that entail infringement of Fundamental Rights in any manner are promulgated on a future date,’counsel for petitioners stated.

Accordingly, the Supreme Court three-judge bench headed by Justice Buwaneka Aluwihare allowed the petitioners to withdraw their petitions.

These petitions had been filed by convener of Puravesi Balaya Gamini Viyangoda, the Centre for Policy Alternatives and, CPA Executive Director Dr. Paikiasothy Saravanamuttu naming Attorney General and Defence Ministry Secretary Gen. (Rtd) Shantha Kottegoda as respondents.

The petitioners stated that while a State of Emergency was not declared on the date of the Easter Sunday attack on April 22, 2019, on the day 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.

The petitioners emphasised 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 the 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.

Senior Counsel Viran Corea with counsel Khyati Wikramanayake and Inshira Faliq appeared for petitioner Gamini Viyangoda. President’s Counsel M.A.Sumanthiran with Senior Counsel Viran Corea, Counsel Bhavani Fonseka and Luwie Ganeshathasan appeared for CPA.

Additional Solicitor General Farzana Jameel PC with Azard Navavi, DSG appeared for the Respondents.

 

 


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