States of Emergency - Centre for Policy Alternatives

Chapter XVIII was predicated on the existing statutory framework
governing public security set out in the PSO as amended from time
to time. The Proclamation bringing Part II of the PSO into
operation (i.e., the declaration of a state of emergency) is at the
discretion of the President under Section 2. Under this provision,
the President may issue such a Proclamation where, in view of the
existence or imminence of a state of public emergency, he is of the
opinion that it is expedient to do so, 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. 283
Sections 3 and 8 are the general ouster clauses, which provide
respectively that ‘the fact of existence or imminence…[i.e., the
declaration]…of a state of public emergency shall not be called in
question in any court’ and ‘no emergency regulation, and no order,
rule or direction made or given thereunder shall be called in
question in any court.’
Section 5 (1) is a general grant of law‐making power to the
President to make emergency regulations and Section 5 (2)
enumerates, without prejudice to the generality of the power
conferred under Section 5 (1), the various purposes for which
emergency regulations may be made. These include provision for
the detention of persons, commandeering and acquisition, entry
and search, hearings, appeals and compensation for those affected
by the regulation, and to require application, amendment or
suspension of the operation of any law. Section 5 (3) is signiLicant,
especially in the light of the Chapter XVII framework and the
prima
facie ouster of judicial review in Sections 3 and 8, in that it
283
For a discussion of the meaning of the phrases ‘in the interests of’ and
‘public order’, see J.A.L. Cooray (1995) Constitutional
and
Administrative
Law
of
Sri
Lanka
(Colombo: Sumathi): p.752, hereinafter Cooray (1995)
180