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Did (then) Acting President Ranil Wickremesinghe abuse his powers in issuing a Proclamation declaring an island-wide State of Emergency on 17th July 2022, thereafter promulgating Emergency Regulations under Section 5 just a few days following the ‘peoples aragalaya’ (struggle) in the wake of former President Gotabaya Rajapaksa fleeing the country?

A two to one response

This deceptively simple question was answered by a three member Bench of the Supreme Court in a divided opinion this week with two Justices (Y Kodagoda J with outgoing Chief Justice Murdu Fernando) affirming an abuse of power while one Justice (A Obeysekere J) delivered a strong dissent. That judicial division was not over the power of the Courts to judicially review Proclamations issued by the President.

This principle had (in any event) been powerfully articulated more than two decades ago by the late Justice MDH Fernando (Semasinghe v Karunatilleke, 2003).  Rather it was over the manner of discretion to be exercised by the President upon being satisfied (objectively) that a State of Emergency has arisen in the country or the imminence of the same. The majority ruled that thereafter the President could choose to issue a Proclamation under Section of the Public Security Ordinance (PSO, No 25 of 1947) or interalia resort to ‘other options’ under Sections 12, 16 and 17 in Part III.

On July 17th, that discretion had not been exercised reasonably on July 17th and reasons thereto were not properly evidenced. Disagreeing, the dissent affirmed that the only course open to the President upon being satisfied of a State of Emergency was to issue a Proclamation under Section 2 which is thereafter approved by Parliament as a check on executive power. I will revert to aspects of these varying judicial opinions later but a common acknowledgement across both was the seriousness of the ground situation that prevailed across the country at the time.

Recalling the tumult of 2022

Peaceful protests held against the Rajapaksa Presidency by citizens in the wake of Sri Lanka declaring bankruptcy, with severe disruptions to essential supplies had metamorphosed into exceedingly violent attacks by government instigated goons on protestors. Counter-attacks by protestors resulted in widespread burning of state and private properties. The assault of government politicians culminated in the death of a parliamentarian together with his security officer and a near-invasion of the Prime Minister’s official residence.

As the momentum of the ‘aragalaya’ gathered force, the Prime Minister (Mahinda Rajapaksa) resigned. Mr Wickremesinghe was appointed his successor. But with the situation steadily escalating, the President’s official residence itself was attacked on 9th July 2022 leading to the former President ignominiously escaping through the back door of his residence. These were scenes eerily reminiscent of the American Central Intelligence Agency (CIA) instigated regime changes in Latin America during the 1950’s through to the 1970’s and beyond.

On 13th July, protests at Polduwa Junction with calls made by instigators, including front-rankers of the current Government (my words) to ‘occupy Parliament’ were foiled by the police and the armed forces. Elsewhere, a mercifully brief (again, my words) invasion of the state run Rupavahini television station occurred with incoherent protestors proudly announcing that henceforth only protest news would be telecast. Meanwhile the former President fled in a humiliating search for asylum overseas.

Challenging the Proclamation of a ‘State of Emergency’

Mr Wickremesinghe was then appointed as Acting President with an island-wide curfew declared. Undeterred, the inter-university students’ federation said that it would hold a ‘large-scale’ protest against the appointment of the Acting President on 19th July. On that same day, protestors forcibly occupied the Prime Minister’s office. That was the factual backdrop to the Emergency Proclamation issued on 17th July declaring a State of Emergency and the Regulations promulgated thereafter, later approved by Parliament.

The Proclamation was primarily challenged on two grounds, first that it had been signed by the Secretary to the President not by the Acting President (which objection was generally withdrawn by the petitioners later). Secondly and more substantively, it was contended that there was no ‘public emergency’ at the time to ‘warrant’ the Proclamation being applicable to the entire country. Rather, this device had been resorted to as a tool to stifle ‘public dissent’ and was an ‘unreasonable decision’ by the executive.

Parties had agreed before Court that the impugned Emergency Regulations (later amended and then lapsed) were never enforced. Regardless, the ground reality was as grave as it could ever have been in all our troubled post-independence history.  In brief, the Court considered inter alia, whether the making of a Proclamation under Section 2 of the PSO could be judicially reviewed, the nature of the power vested in the President thereby and the manner in which that power could be judicially reviewed as well as the lawfulness of the impugned Proclamation.

Subjective discretion assessed on objective grounds

Weighing the questions, the majority concluded that as at 17th July, when the Proclamation was issued with effect from 18th July, ‘an extraordinary situation’ having ‘serious security implications existed…’ which could have very well thwarted the holding of the scheduled election (to elect a President) on 20th July. Even so, had the President correctly determined within his subjective discretion under the PSO, whether there was a public emergency (or the imminence of a public emergency)?

It was reiterated that there is no ouster of jurisdiction and that the Court is within its power to review a Proclamation made under Section 2 of the PSO. The majority stated that it was incumbent to ‘probe deeper and consider whether the decision had been taken in good faith, with due diligence, objectively, reasonably and without arbitrariness…a ‘state of emergency’ was far more serious than a ‘temporary upheaval of law and order.’

And though the factual situation leading up to 17th July was serious, the executive arm of the State and the ‘writ of governance’ had not been paralysed. Further, no protests or violence had prevailed outside the capital and its suburbs with the curfews being gradually reduced by that date. T was therefore ‘highly doubtful’ that a ‘state of public emergency’ existed at that point.

An ‘irresistible’ inference that
is not so ‘irresistible’

Even assuming a genuine belief to that effect, the majority opined that there was no document or affidavit before Court to explain why the Acting President thought it ‘expedient’ to issue a Proclamation declaring a State of Emergency in respect of the entire country. Consequently, the ‘irresistible inference’ was that this decision had been reached on unreasonable and arbitrary grounds.

But as the dissent in this case acutely demonstrates, the ‘irresistible’ nature of this judicial ‘inference’ is by no means, all that clear. The dissent disagreed that an ‘extraordinary situation’ existing before July 17th, had dissipated by then; this was by no means the case on the face of documents before Court with further evidence not being needed. The Proclamation had been ‘reasonably issued.’

Indeed, once the President has formed an objective view that a ‘public emergency’ exists, which may even include a temporary upheaval, there is no need to consider ‘other options’ (ie; resorting to Sections 12, 16 and 17 in Part III). In fact, there is no requirement for a ‘State of Emergency’ or the imminence of the same in regard to those ‘other options. That pre-condition is solely in respect of issuing a Proclamation under Section 2 which is of an immediate and urgent nature.

Who decides the ‘emergency’?

These variances in judicial opinions will lend good colour to ongoing debates on the PSO and the President’s powers. Certainly the rider to the majority ruling that the impugned Proclamation was illegal but holding that the Court had ‘not imposed its own judgment over that of the President on whether or not the ground situation warranted or justified the acts,’ will attract inevitable scrutiny.

Let us hope that Sri Lankan legal academics will rise to that challenge.