Public Security

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Public Security

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Chapter 9: Public Security

This section sets out the constitutional framework for public security, including the President’s powers to declare emergencies, parliamentary oversight of emergency regulations, and the establishment, powers, independence, and accountability of the National Police Commission in managing police appointments, discipline, complaints, and public protection.

Article 71: Declaration of Public Emergency

i Drafted from public input and research by civic organizations.

Current Constitutional Text

(1) The Public Security Ordinance as amended and in force immediately prior to the commencement of the Constitution shall be deemed to be a law enacted by Parliament.

(2) The power to make emergency regulations under the Public Security Ordinance or the law for the time being in force relating to public security shall include the power to make 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.

(3) The provisions of any law relating to public security, empowering the President to make emergency regulations which have the legal effect of over-riding, amending or suspending the operation of the provisions of any law, shall not come into operation, except upon the making of a Proclamation under such law, bringing such provisions into operation.

149[(3A) Nothing in the preceding provisions of this Constitution shall be deemed to prohibit the making of emergency regulations, under the Public Security Ordinance or the law for the time being in force relating to public security, with respect to any matter set out in the Ninth Schedule or having the effect of over-riding amending or suspending the operation of a statute made by a Provincial Council.]

(4) Upon the making of such a Proclamation, the occasion thereof shall, subject to the other provisions of this Article, be forthwith communicated to Parliament and accordingly –

(i) if such Proclamation is issued after the dissolution of Parliament such Proclamation shall operate as a summoning of Parliament to meet on the tenth day after such Proclamation, unless the Proclamation appoints an earlier date for the meeting which shall not be less than three days from the date of the Proclamation; and the Parliament so summoned shall be kept in session until the expiry or revocation of such or any further Proclamation or until the conclusion of the General Election whichever event occurs earlier and shall thereupon stand dissolved;

(ii) if Parliament is at the date of the making of such Proclamation, separated by any such adjournment or prorogation as will not expire within ten days, a Proclamation shall be issued for the meeting of Parliament within ten days.

(5) Where the provisions of any law relating to public security have been brought into operation by the making of a Proclamation under such law, such Proclamation shall, subject to the succeeding provisions of this Article, be in operation for a period of one month from the date of the making thereof, but without prejudice to the earlier revocation of such Proclamation or to the making of a further Proclamation at or before the end of that period.

(6) Where such provisions as are referred to in paragraph (3) of this Article, of any law relating to public security, have been brought into operation by the making of a Proclamation under such law, such Proclamation shall expire after a period of fourteen days from the date on which such provisions shall have come into operation, unless such Proclamation is approved by a resolution of Parliament:

Provided that if -

(a) Parliament stands dissolved at the date of the making of such Proclamation; or

(b) Parliament is at such date separated by any such adjournment or prorogation as is re ferred to in paragraph (4)(ii) of this Article; or

(c) Parliament does not meet when summoned to meet as provided in paragraphs (4)(i) and (4) (ii) of this Article, then such Proclamation shall expire at the end of ten days after the date on which Parliament shall next meet and sit, unless approved by a resolution at such meeting of Parliament.

(7) Upon the revocation of a Proclamation referred to in paragraph (6) of this Article within a period of four teen days from the date on which the provisions of any law relating to public security shall have come into op eration or upon the expiry of such a Proclamation in ac cordance with the provisions of paragraph (6), no Procla mation made within thirty days next ensuring shall come into operation until the making thereof shall have been approved by a resolution of Parliament.

150[Repealed]

151[(8)] If Parliament does not approve any Proclamation bringing such provisions as are referred to in paragraph (3) of this Article into operation, such Proclamation shall, immediately upon such disapproval, cease to be valid and of any force in law but without prejudice to anything lawfully done thereunder.

152[(9)] If the making of a Proclamation cannot be communicated to and approved by Parliament by reason of the fact that Parliament does not meet when summoned, nothing 153[contained in paragraph (6) or (7), of this Article], shall affect the validity or operation of such Proclamation:

Provided that in such event, Parliament shall again be summoned to meet as early as possible thereafter.

71.1

The President may, by Proclamation published in the Gazette, declare that a state of public emergency exists in Sri Lanka or any part thereof, where— (a) the security of Sri Lanka or any part thereof is threatened by war, external aggression, armed rebellion, or grave acts of terrorism (National Emergency); or (b) the Government of a Province cannot be carried on in accordance with the provisions of the Constitution (President’s Rule); or (c) the financial stability or credit of Sri Lanka or any part thereof is threatened (Financial Emergency).

71.2

Every Proclamation under paragraph (1) shall be laid before Parliament, shall cease to operate at the expiration of fourteen days unless approved by a resolution of Parliament, and may be extended by further resolutions of Parliament for periods not exceeding three months at a time.

71.3

A Proclamation declaring a National Emergency under paragraph (1)(a) may be made before the actual occurrence of war, aggression, rebellion, or terrorism if the President is satisfied that there is imminent danger thereof.

71.4

The satisfaction of the President in declaring a state of public emergency under Article 70 shall be subject to judicial review by the Constitutional Court on the application of any citizen.

71.5

The Constitutional Court shall have the power to examine whether the Proclamation was issued on the existence of relevant material, whether such material was considered by the President, and whether the declaration was made in good faith and without mala fides.

71.6

If the Constitutional Court finds that the Proclamation was not justified by the circumstances, it may declare such Proclamation to be void ab initio or from such date as it may determine.

71.7

A Proclamation under Article 71 shall, while in operation— (a) empower the President to make such regulations as appear to him to be necessary or expedient for securing public security, the defence of Sri Lanka, the maintenance of public order, the maintenance of essential supplies and services, or the financial stability of the country; (b) not invalidate any provision of the Constitution, but may authorize such derogation from the fundamental rights contained in Chapter III as may be strictly required by the exigencies of the situation, provided that such derogation is consistent with the Republic’s obligations under international law; (c) not diminish the powers or affect the functioning of the Constitutional Court, the Supreme Court, or the Judicial Service Commission.

Article 72: THE PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION (OMBUDSMAN)

i Drafted from public input and research by civic organizations.

Current Constitutional Text

(1) Parliament shall by law provide for the establishment of the office of the Parliamentary Commissioner for Administration (Ombudsman) charged with the duty of investigating and reporting upon com plaints or allegations of the infringement of fundamental rights and other injustices by public officers and officers of public corporations, local authorities and other like institu tions, in accordance with and subject to the provisions of such law.

166[(2) The Parliamentary Commissioner for shall, 167[Subject to the approval of the Constitutional Council,] be appointed by the President and shall hold office during good behaviour.]

(3) The salary of the Parliamentary Commissioner for Administration shall be determined by Parliament and shall not be diminished during his term of office.

(4) The office of the Parliamentary Commissioner for Administration shall become vacant –

(a) upon his death;

(b) on his resignation in writing addressed to the President;

(d) on his removal by the President on account of ill health or physical or mental infirmity; or

(e) on his removal by the President on an address of Parliament.

168[(5) Whenever the Parliamentary Commissioner for Administration is unable to perform and discharge the duties and functions of his office, the President shall, 169[Subject to the approval of the Constitutional Council,] appoint a person to act in his place.]

72.1

(c) There shall be a Parliamentary Commissioner for Administration (Ombudsman) who shall be appointed by the President on the recommendation of the Constitutional Council. (b) The Ombudsman shall be a person of recognised integrity and competence in public administration, law, or the investigation of grievances, and shall be independent in the performance of his functions, subject only to the Constitution and the law. (c) The Ombudsman shall hold office for a term of five years and shall not be eligible for reappointment.

72.2

The Ombudsman shall have the power to investigate any allegation of maladministration, including— (a) any decision, recommendation, act, or omission of any Ministry, Department, Provincial Council, local authority, or public corporation; (b) any practice or procedure of such bodies that results in injustice or hardship; and (c) any failure to perform a statutory or public dut

72.3

The jurisdiction of the Ombudsman shall extend to the conduct of all public officials, including members of the Police and Armed Forces, save and except the President, Judges of the Superior Courts, and the Attorney-General in the performance of judicial or prosecutorial functions

72.4

For the purposes of such investigation, the Ombudsman shall have the powers of a court to— (a) summon and enforce the attendance of any person and examine them on oath; (b) require the discovery and production of any document or record; and (c) requisition any public record from any court, office, or authority.

72.5

The Ombudsman may commence an investigation upon a complaint made by any affected person or group, or on his own motion

72.6

Where, after investigation, the Ombudsman is of the opinion that there has been maladministration, he shall report his findings and recommendations to the relevant authority and to the Minister in charge of the subject. If no remedial action is taken within a reasonable time, he shall submit a special report to Parliament.

72.7

Parliament shall, by law or Standing Order, provide for the procedure of the Ombudsman and for the implementation of his recommendations.

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Chapter 9: Public Security

Article 71: Declaration of Public Emergency

Current Constitutional Text

Article 72: THE PARLIAMENTARY COMMISSIONER FOR ADMINISTRATION (OMBUDSMAN)

Current Constitutional Text

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