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The End of War and The Provisions of the Public Security Ordinance

21 August 2013 06:30 pm - 0     - {{hitsCtrl.values.hits}}

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By C. V. Vivekananthan
Attorney-at-law.


The war is over. Normalcy has been established and no proclamation of the state of emergency exists. People are the recipients of peace and order. Many hail the government and the armed forces for restoring peace and order. In the process they regard the army sacred and sacrosanct as the army along with the members of the other armed forces has won the war, sacrificing their lives, life and limb, thereby they entertain a notion that, on the invitation of any concerned person, the army could be deployed for ‘military operation’ to use their guns and/or exercise the powers of the civil authorities even when there was no proclamation of a state of emergency.
The above view appears to be fallible inasmuch as the President alone could bring the armed forces or the army to quell the law-breakers of any kind, by invoking the provisions of the Public Security Ordinance and not in any other manner, and all the powers and functions of the armed forces, including the army are governed by procedures established by law, i.e. the Constitution, Public Security Ordinance and other relevant acts and regulations lawfully framed thereunder.



"It is notable that many act on emotion and not on reason and the victims are the innocent and a declaration of fundamental rights in our Constitution that ‘all persons are equal before the law and are entitled to the equal protection of the law’, is often observed in the breach."



It is notable that many act on emotion and not on reason and the victims are the innocent and a declaration of fundamental rights in our Constitution that ‘all persons are equal before the law and are entitled to the equal protection of the law’, is often observed in the breach.  

I propose no criticism in any manner whatsoever against anyone but venture with good faith to place a discourse of a different view for better governance for the consideration of the unbiased and eminent minds, that:
  • When there is no proclamation of emergency the army cannot exercise the powers of the civil authorities.
  • Emergency Regulations have to be promulgated by the President alone in terms of the Public Security Ordinance for the deployment of the armed forces, including the army and he himself cannot call out any one of the armed forces or the army in any other manner whatsoever.
  • There exists a written rule of law for the deployment of the armed forces, including the army to quell the law breakers to maintain public security and order.
  • There should be the existence of a state of emergency and the state of emergency has to be declared by the President.
  • The powers and functions and other related matters of the armed forces or the army have to be spelt out in such emergency regulations to maintain public security and order.
  • The provisions of the Constitution, Public Security Ordinance and other relevant acts strengthen this view.      

     


Emergency Regulations:
Besides Parliament enacting laws, the President too could make Emergency Regulations, which are specified as ‘law’ under Article 15 (7) of the Constitution. In terms of Article 155 (2) of the Constitution, the President is empowered to make emergency regulations ‘having the legal effect of over-riding, amending or suspending the operation of the provisions of any law, except the provisions of the Constitution’.

Thus, it could be seen that no emergency regulation could over-ride, amend or suspend any one of the Articles of the Constitution and the President is obliged to act and do things consistent with the provisions of the Constitution-- (Article 33 (f)).




Civil Authorities:
The Police are the civil authorities empowered by the provisions of the Police Ordinance, Code of Criminal Procedure Act and other Acts, with protection of person and property, and to take all steps to prevent the commission of any offence and do all investigation of offences, record statements, search and arrest offenders and bring the offenders before courts to be dealt with according to law. The provisions of the Code of Criminal Procedure Act give the Police extensive powers in this regard.



President and Emergency Regulations:
Since the Police are the civil authorities empowered to maintain public security and order, the President, even under emergency regulation, is obliged to call the Police to deal with any situation. If the Police find it difficult to control a grave volatile situation, the President shall call out the armed forces or the army to deal with the situation. They could aid the police or act independently as prescribed under the emergency regulations and not otherwise.
The President is the Commander of the Armed Forces and the armed forces come under the supervision and direction of the President. He is the only person who could declare war and peace and bring Public Security Ordinance into operation to bring the armed forces into action for the preservation of public security and order.    



 
The term, ‘armed forces’, includes the Army.

If the President is of the opinion that ‘it is expedient so to do in the interests of public security and the preservation of public order’, he may, ‘by Proclamation published in the gazette’, declare that Part II of the provisions of the Public Security Ordinance has come into operation in any part of the country.

Section 12 (1) of the Public Security Ordinance empowers the President with special power. It states specifically that ‘where circumstances endangering the public security in any area have arisen or are imminent and the President is of the opinion that the police are inadequate to deal with such situation in that area, he may, by Order published in the Gazette, call out all or any of the members of the armed forces for the maintenance of public order in that area’.

Section 12 (2) of the said Act states that ‘the members of any of the armed forces who are called out by Order made under subsection (1) for the purpose of maintaining public order in any area shall for such purpose have the powers, including the powers of search and arrest, conferred on police officers by any provisions of this Part or of any other written law, other than the powers specified in Chapter XI if the Code of Criminal Procedure Act’, subject to certain restrictions to exercise such powers by the armed forces. The power conferred under Section 5 (1) read with section 7 of the Public Security Ordinance gives the power to the President to make Emergency Regulations for the maintenance of services essential for the life of the community.

The Army Act mainly deals with the internal mechanism of raising and maintaining the Army and matters connected thereto. It does not deal with as to how the Army could be brought to military action in time of civil commotion for the purpose of quelling the law-breakers in order to maintain public security and order.

It is submitted that Section 100 of the Army Act makes it compulsory for a person subject to military law to obey only lawful orders given personally by a superior officer. Thus a soldier, carrying out an unlawful order would not be protected even under the Army Act.

Though the Emergency Regulations, enacted by the President under the provisions of the Public Security Ordinance, may give the armed forces or the army power as exercised by the police to arrest and search persons taken into custody, the member of the armed forces is obliged in law to deliver the arrested person without unnecessary delay to the custody of a police officer to be dealt with according to law unless prescribed differently under the emergency regulations.




No military operation without emergency:
The Army may run a shop, a hotel and cater to its customers, may actively get involved in agriculture and other business enterprises in any part of the county, whether those acts constitute any breach of the provisions of any law is another question but they remain as private citizens and they cannot in any manner indulge in any kind of military operation or exercise the powers of the civil authorities unless they are called out for those purposes by the President by proclamation of emergency regulations in terms of the Public Security Ordinance.

Thus, it is submitted that no member of the armed forces, could roam the country and do military operation or exercise the powers of the civil authorities on their own will or otherwise, without clothing themselves with legal authority, under emergency regulations promulgated by the President in terms of the Public Security Ordinance.
In the absence of a proclamation under the provisions of the Public Security Ordinance, the army cannot under any circumstances use their guns and no superior officer could order, calling out any section of the army to quell any rioters or to or exercise the powers of the civil authorities. They cannot usurp the powers of the civil authorities.

In the above premises, in a state of normalcy, when no proclamation of emergency is made by the President in terms of the Public Security Ordinance a soldier is bound by the ordinary law of the land and for all intents and purposes, he enjoys no more rights than a private citizen.

I do not claim legal efficacy of this view. If there are any other provisions of any special law, governing the deployment of the armed forces or the army by the President or by any other person, over-riding, altering, amending or suspending the provisions of the Public Security Ordinance, in order to maintain public security and order and/or exercise the powers of the civil authorities can be cited and political imagination is called for peaceful discussion.    
         
Lawlessness is a cantankerous disease that would eat the fabric of the society and if it is left unabated it would gradually submerge the country by international intervention, and in political quack, mire and drench the nation to a disastrous end.

       
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