Ex-HRCSL Commissioner moves Court against Emergency

Former member of the Human Rights Commissioner of Sri Lanka, Ambika Satkunanathan, has petitioned the Supreme Court against the declaration of Emergency, citing as respondents the Attorney-General, Secretary to the ex-President Gamini Senarath, Secretary to the incumbent President Saman Ekanayake, Defence Secretary General (retd.) G.D.H. Kamal Gunaratne.

Petitioner Satkunanathan has stated in her Fundamental Rights Violation application that the Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2022 [hereinafter ERs] have the effect of restricting the fundamental rights of the people, and are constitutionally overbroad. The regulations are vague and overbroad, and amount to prior restraints of fundamental rights, and are not permissible proportionate restrictions, which are necessary in a democratic society.

The petitioner alleges they bestow and enable:

· Overbroad powers of search, arrest & detention and interrogation;

· Restrictions and prior restraint on freedom of speech, assembly, association and movement;

· Issuance of detention orders without judicial oversight;

· Arbitrary piling on of punishments and imposition of offences & penalties;

· Arbitrary / excessive restrictions on bail;

· Arbitrary restrictions on access to detainees.

The Petitioner therefore states that Regulations 9, 11, 12, 13, 14, 15, 17, 18, 20, 21, 26, 34, 36, and 37 of the ERs are vague and/or constitutional overbroad, and/or amount to prior restraints, and are violative of, inter alia, Articles 10, 11, 12(1), 12(2), 13(1), 13(2), 13(3), 13(4), 13(5), 14A, 14(1)(a), 14(1)(b), 14(1)(c), 14(1),(g) & 14(1)(h) of the Constitution, and are not necessary or proportionate responses required in a democratic society, and the measures do not deal with the exigencies of the current situation. The Petitioner states that these ERs additionally impinge on judicial discretion and oversight and are violative of inter alia, Articles 4(c) & 111C of the Constitution.

Petitioner requests the Court to:

· Declare that the Petitioner’s Fundamental Rights guaranteed to her under Article 12(1) of the Constitution have been infringed by any one or more of the Respondents;

· Declare that the actions of the Respondents amount to a violation and/or continuous violation and/or imminent violation of the fundamental rights enshrined in Articles 10, 11, 12(1), 12(4), 13(1), 13(2), 13(3), 13(4), 13(5), 14A, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(g), &/or 14(1)(h) of the Constitution;

· Grant appropriate interim relief(s) until the final determination of this application;

· Restrain the Respondents and/or officers serving under them and/or their agents from acting upon the Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2022.

AND/OR in the alternative to the above

· Staying the operation of the Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2022.

OR in the alternative to (ii) above

· Staying the operation of Regulations 9, 11, 12, 13, 14, 15, 17, 18, 20, 21, 26, 34, 36, and/or 37 of Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2022 published in Gazette Extraordinary 2289/07 dated 18 July 2022.

· Restraining the President of the Republic and/or his successor in office, from issuing any further Emergency Regulations pursuant to the Proclamation of a State of Emergency;OR in the alternative to (iv) above

· Restraining the President of the Republic from issuing any further Emergency Regulations pursuant to the Proclamation of a State of Emergency except and subject to such conditions as shall be imposed by the Court as necessary in a democratic society to meet the exigencies of the current circumstances;

· Staying the operation of the Proclamation declaring a State of Emergency.

· Declare that the Proclamation declaring a State of Emergency published in Gazette Extraordinary 2288/30 dated 17 July 2022 is null and void and of no force or effect in law.

· Declare that the President, represented by the AG has violated the rights of the Petitioner under Article 12(1) in issuing a Proclamation declaring a State of Emergency.

· Declare that the Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2022 published in Gazette Extraordinary 2289/07 dated 18 July 2022 are null and void and of no force or avail in law.

OR in the alternative to the above

· Declare that Regulations 9, 11, 12, 13, 14, 15, 17, 18, 20, 21, 26, 34, 36, and/or 37 of Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2022 published in Gazette Extraordinary 2289/07 dated 18 July 2022 are null and void and of no force or effect in law.

· Declare that the President, represented in these proceedings by the 1A Respondent AG has violated Articles 10, 11, 12(1), 12(4), 13(1), 13(2), 13(3), 13(4), 13(5), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(g), &/or 14(1)(h) of the Constitution, in issuing the Emergency (Miscellaneous Provisions and Powers) Regulation No.1 of 2022 published in Gazette Extraordinary 2289/07 dated 18 July 2022.