States of Emergency - Centre for Policy Alternatives

struck down a detention order after an investigation into the
circumstances of the impugned detention and in Nanayakkara
 v.
Perera held that reasons for arrest and detention must be given to
the detenu.
As mentioned before, Joseph
 Perera
 v.
 Attorney
 General
 (1992)
established the test of rational or proximate nexus between the
impugned emergency regulation and the harm or mischief sought
to be averted. Sharvananda C.J. held that, in terms of Article 155
(2) of the constitution, “…the President’s legislative power of
making Emergency Regulations is not unlimited. It is not
competent for the President to restrict via Emergency Regulations,
the exercise and operation of the fundamental rights of the citizen
beyond what is warranted by Articles 15 (1‐8) of the
Constitution…The
grounds
of
restriction
 speciKied
in
 the
limitation
Article
15
are
exhaustive
and
any
other
restriction
is
invalid.” 317 The
Chief Justice went on to hold that:
“The regulation owes its validity to the subjective
satisfaction of the President that it is necessary in the
interest of public security and public order. He is the sole
judge of the necessity of such regulation and it is not
competent for this court to inquire into the necessity for
the regulations bona
 Kide
 made by him to meet the
challenge of the situation. But under Article 15 (7) of the
Constitution it is not all regulations, which appear to the
President to be necessary or expedient…which can
impose restrictions on the exercise and operation on
fundamental rights. It is only regulations which survive
the test of being in the interests of national security,
317
Joseph
Perera
v.
Attorney
General
(1992) 1 SLR 199 at 214‐215, emphasis
added
196