“Section 5(1) of the Public Security Ordinance empowers the Executive with the authority to issue emergency regulations which:

(a) Authorise and provide for the detention of persons; (b) Authorise the taking of possession or control of any property or undertaking, the acquisition of any property other than land; (c) Authorise the entering and searching of any premises; (d) Provide for amending any law, for suspending the operation of any law and for the applying of any law with or without modification; (e) Provide for charging, in respect of the granting or issue of any licence, permit, certificate or other document for the purpose of the regulations...(f) Provide for payment of compensation and remuneration to persons affected by regulations; (g) Make provision for the apprehension and punishment of offenders and for their trial by such courts...”

Illegal suspension of fundamental rights during emergency: once emergency is declared, as the Sri Lankan government states in its fourth periodic report, the government can impose restrictions on the fundamental rights enumerated in Articles 12 (freedom from discrimination), 13(1) (freedom from arbitrary arrest), 13(2) (freedom deprived of liberty except upon and in terms of an order made by a judge in accordance with procedure established by law) and 14 (freedom of speech and expression, freedom of peaceful assembly and the freedom to join or form a trade union and the freedom of worship, the freedom to use his or her own language or the freedom to promote his or her culture, the freedom to engage in lawful profession or trade and the freedom of movement) of the constitution. According to Article 15(7), these provisions are “subject to such restrictions as may be prescribed by law in the interest of national security, public order and the protection of public health or morality or for the purpose of securing due recognition and respect and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society”...

Further, Article 15(8) declares that the exercise and operation of the rights declared by Articles 12(1) (right to equality before the law and the equal protection of the law), 13 and 14 are subject to restrictions prescribed by law, in their application to the members of the Armed Forces, the Police and other forces charged with the maintenance of public order.”

It is clear that the Sri Lankan government is in clear violation of Article 4 of the International Covenant on Civil and Political Rights. Article 4(1) of the ICCPR provides that “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

The Human Rights Committee...explains the circumstances under which such measures may be taken... “Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency, which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed. When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers.”

Article 4 (2) of the ICCPR requires that certain rights may not be derogated from under any circumstances. The HRC...also states:

“Article 4, paragraph 2, of the Covenant explicitly prescribes that no derogation from the following articles may be made: article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8 paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), article 15 (the principle of legality in the field of criminal law...article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion). The rights enshrined in these provisions are non-derogable by the very fact that they are listed in article 4, paragraph 2.