States of Emergency - Centre for Policy Alternatives

question whether executive law‐making under Section 5 of the
PSO was an unconstitutional alienation of the legislative power of
Parliament. Based on the doctrine of delegation, however, this
issue was settled that the PSO and regulations made under it were
valid and that there was nothing in the PSO to suggest that
Parliament had abdicated its legislative power. In Weerasinghe
v.
Samarasinghe (1966), Sansoni C.J., held that, “One thing is
essential for the validity of a delegation of [Parliament’s] lawmaking
power, and that is that it should not abandon its legal
authority to which it has delegated the power. It must not
transform the executive into a parallel legislature and abdicate its
function.” 305 The two republican constitutions have expressly
provided for emergency rule‐making by the executive, and
therefore, the more common question to be determined by the
courts in respect of impugned regulations or executive and
administrative action nowadays is the question of vires. 306
In regard to executive and administrative action under emergency
regulations, it was held in Hirdaramani
v.
Ratnavale (1971) that if
an order (in this case, a detention order by a Permanent Secretary
made under authority of an emergency regulation) was produced
and was valid on the its face, it was for the petitioner (in this case,
305
Weerasinghe
v.
Samarasinghe (1966) 68 NLR 361 at 363; see also H.M.
Zafrullah (1981) Sri
Lanka’s
Hybrid
Presidential
and
Parliamentary
System
and
the
Separation
of
Powers (Malaya UP): pp.59‐61
306
Articles 16 (1), 155 (1) and 168 (1) of the 1978 Constitution;
Wickremabandu
v.
Herath
(1990) 2 SLR 348. On the reasoning of the
Supreme Court in Yasapala
v.
Wickremasinghe
(1983) 1 FRD 143, Cooray
has noted that the President’s power of making emergency regulations
under the 1978 constitution is ‘co‐extensive’ with that of Parliament,
except for the limitation as to the period during which emergency
regulations are in force. The ‘limitation’ is that found in Article 155 (3) to
the effect that emergency regulations override law made by Parliament.
Cooray (1995), op cit, p.750, fn.3
192