Need to rectify and regularise curfew Sumanthiran wants HRC to advise government

• Restrictions including curfew have not been done under any extant legal provision. Therefore, such action poses a grave threat to the rule of law and wellbeing of people

By S.S. Selvanayagam 

Former TNA MP M.A. Sumanthiran (PC) has sought the intervention of the Sri Lanka Human Rights Commission (HRC) to advise the government on the need to rectify and regularise curfew imposed.  

He urged the intervention of HRC in a public interest memorandum to its chairperson and members. 
At the outset, he adverted his ‘interest’ in a related matter. He said he appeared as counsel at the Nugegoda Magistrate’s Court in Case No: B/1454/20 for former MP Ranjan Ramanayake. He said in the course of his submissions made to court on April 20, he took up the position that no curfew had been declared in terms of any applicable law. 

He stated that having recorded his submission in this regard and while granting bail to his client, the magistrate held that he was not making a determination as to the legality of curfew at that point in time. He stated that it was pertinent to note that his client had not been accused of violating any curfew. 

“An islandwide curfew was declared on March 20 from 06:00 p.m. onwards and announced to the country by the President’s Media Division (PMD) which has virtually been in force up to now with variations in certain districts and curfew being lifted and reimposed at different times in different places,” he stated.  

He opined restricting movement was desirable and necessary at this time in order to meet the challenge posed by COVID-19.  “There is no opposing that such restrictions including curfew must be imposed legally under applicable provisions of law, but it has not been done under any extant legal provision and such action therefore poses a grave threat to the rule of law and wellbeing of the people of this country,” he stated.  

In these circumstances, he draws the attention of the HRC to Section 10 (c) and (d) of Act No. 21 of 1996 by which the Human Rights Commission is empowered to advise and make recommendations to the government. 
While urging it to address this particular situation, he narrates the curfews have hitherto been imposed by the use of emergency regulations after bringing Part II of the Public Security Ordinance into operation by means of a proclamation but this had not been done in the present instance. 

He underlines there is provision under Section 16 of the Public Security Ordinance (which comes under Part III) to impose restrictions on public movement by making publication in the gazette to that effect but that too had not been done. 

He brings the cognizance that the Supreme Court has noted that any restriction on the freedom of movement guaranteed by Article 14(1)(h) of the Constitution must be prescribed by law: “…the right of citizens to travel on public highways and to have access to public places may only be curtailed by restrictions imposed in terms of Articles 15(6) and 15(7).” – vide Vadivelu v. OIC Sithambarapuram and others [2002] 3SLR 146.  He adds that in conclusion, Mark Fernando J. held: “There is force in the respondent’s contention that restrictions complained of were imposed in the interests of national security and were reasonably necessary for that purpose. 

“However, Article 15(7) required that such restrictions be imposed by a law or by regulations made under the law relating to public security. Accordingly, the travel pass system constitutes a restriction not authorised by Article 15(7),” he stated.  

Furthermore, he stated that Justice Mark Fernando held that the petitioner’s fundamental right under Article 14(1)(h) had been infringed by executive action by the application to him of the travel pass system.  

Article 15(7) of the Constitution very specifically provides: For the purposes of this paragraph law includes regulations made under the law for the time being relating to public security. There is also the question as to whether the law relating to public security can be utilised to impose curfew for exigencies of public health hazards. But leaving that question aside, there is at present no regulation made even under the Public Security Ordinance. Thus, the present curfew has not been legally imposed, however desirable and necessary it may be. In fact, it is important that restrictions on the freedom of movement be properly and legally prescribed and enforced.

• He opined restricting movement was desirable and necessary
• Curfews have hitherto been imposed by the use of emergency regulations after bringing Part II of the Public Security Ordinance