News
SC majority decision nullifies 2022 state of emergency, but dissenting judge strongly defends its validity
View(s):- CJ Fernando and Justice Kodagoda say normal laws such as CCPA and Police Ordinance
were sufficient to bring the situation under control - Justice Obeysekera, however, insists then President Wickremesinghe’s decision
was “not unreasonable or irrational”
A majority decision of the Supreme Court this week determined that the State of Emergency invoked by then Acting President Ranil Wickremesinghe on July 17, 2022, had infringed upon the fundamental rights of citizens.
Justice Yasantha Kodagoda, PC, with Chief Justice Murdu N.B. Fernando, PC, agreeing, thus held both the proclamation of emergency, dated July 17, and the emergency regulations issued thereunder on July 18, to be a nullity—meaning they are deemed never to have had legal recognition or force.
There was no basis in law to conclude that the Acting President when making the emergency proclamation, “had acted objectively, in good faith, with due diligence, reasonably, and without any arbitrariness”.
And while there was no evidence to conclude it was orchestrated by mala fide intent or collateral motives, Justice Kodagoda held that the “impugned decision to issue a proclamation under section 2 of the Public Security Ordinance was illegal and is therefore a nullity”.
In his dissenting opinion, Justice Arjuna Obeyesekere disagreed with the majority’s conclusion that the proclamation was arbitrary, an abuse of power, illegal, or a violation of fundamental rights.
Justice Obeyesekere held that the situation on July 17 did objectively amount to a “state of public emergency”, citing the widespread unrest, occupation of official residences, and the threat to the parliamentary election of a new president (scheduled for July 20, 2022) as sufficient grounds. He pointed out that the Inspector General of Police, the Minister of Public Security, and the Secretary to the Ministry of Defence had all urged the declaration of an emergency.
Fundamental rights petitions SCFR 246, 261, 262, 274 & 276/2022 filed by several parties were taken up for consideration. While the majority decision allowed these applications—and awarded litigation costs from the State—Justice Obeysekere held that he would have dismissed all of them with costs.
Justice Kodagoda found it “highly doubtful” whether the ground situation on July 17 had objectively amounted to “a State of public Emergency” as required by Section 2 of the Public Security Ordinance (PSO).
He considered four questions: Whether the factual circumstances that prevailed as of July 17, 2022, disclosed “a situation of exceptional gravity threatening the legitimate interests” protected by the PSO? Whether the President’s opinion that it was expedient to declare a State of Emergency was formed on an objective, rational and demonstrable basis? Whether the measures contemplated were proportionate to the threat posed? And whether the invocation of emergency powers aligned itself “with the principles of legality, proportionality, good faith and public interest.”
Several matters must be considered, Justice Kodagoda held. Firstly, the police could have used the Code of Criminal Procedure Act (CCPA) to disperse an unlawful assembly; to obtain a magisterial order to, inter alia, remove an obstacle to a public thoroughfare; and to obtain a magisterial order to, inter alia, prevent or stop a protest scheduled for July 19 from taking the form of any unlawful or illegal activity, or an impending protest on July 20 from amounting to a transgression of the law.
Secondly, when an unlawful assembly takes place, the CCPA allows any magistrate or police officer not below the rank of an Inspector of Police to command such unlawful assembly to disperse. It also empowers a magistrate to, inter alia, direct that an unlawful obstruction or nuisance be removed from any path (including roadway) which may be lawfully used by the public.
Thirdly, since the armed forces had been called out under the PSO, it would’ve been possible to “secure their assistance to augment the police in law enforcement for the purpose of preventing a transgression of the law, arresting and taking into custody those who commit offences, and thereafter initiating criminal justice measures”.
Fourthly, it had been possible to declare a curfew in the period running up to and covering the duration of the election scheduled for July 20, 2022, to prevent a blockade of the gateway to Parliament and the intimidation of parliamentarians.
Fifthly, the CCPA and the Police Ordinance could have been invoked in respect of possible instances of intimidation, harm, obstruction, wrongful restraint, or wrongful confinement of MPs, “thereby dealing with those who conspire, attempt, commit and abet the commission of offences in terms of the law”.
Sixthly, given that the State (admittedly) had advanced notice of the calling of a protest on July 19 and was able to predict that such a protest may flow over to the following day, “it was certainly feasible for the police to have put in place an effective and measured law enforcement strategy to ensure that the scheduled election in Parliament takes place without any unlawful hindrance.”
Seventhly, both the then Inspector General of Police and the then Minister of Public Security “merely requested the Acting President to declare curfew by declaring a State of Emergency” without providing justification for their request.
Finally, the Secretary to the Ministry of Defence had also not given reasons for suggesting a State of Emergency to be declared and had not indicated as to why the alternative courses of action in his view would not be effective.
Justice Obeyesekera disagreed with the majority’s view that the then Acting President ought to have considered other options once a State of Emergency was established. He argued that the “very nature of the situation of public emergency requires a decision maker to act decisively and within a short space of time”.
“While I agree that a serious situation involving a deterioration of law and order in the country had arisen, the majority opinion goes on to conclude that there was no evidence placed by the Acting President to establish that this serious situation had given rise to the existence of a state of public emergency,” Justice Obeyesekere observes. “This is where the divergence of views between the majority opinion and myself starts…”
He takes the view that events, the nature of which he has narrated, “viewed from an objective standpoint, point to the existence of an unprecedented state of public emergency, and that, viewed from a subjective viewpoint, it was expedient in the interests of public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community for the Acting President to have issued the impugned proclamation.”
Justice Obeyesekere determines that Parliament’s requirement to review the Proclamation within 14 days “serves as the necessary check, rather than mandating an exhaustive evaluation of alternatives by the President in an urgent situation”.
While agreeing that a decision-maker should provide reasons, he argued that this was an “extraordinary” case where the events were “public knowledge” and “unfolded before the very eyes of the People,” thus requiring no further elaboration from the President.
He noted that the President’s communication to the Speaker confirmed he was “fully conscious of the requirements of the law”. He suggested that in such unprecedented circumstances, it was “inaction rather than action that should have been put under the microscope”.
Justice Obeyesekera concluded that the President’s decision was “not unreasonable or irrational” and that any “sensible/reasonable authority acting with due appreciation of its responsibilities could have decided to arrive at such a decision”. Therefore, he held that the fundamental rights of the petitioners were not infringed by the proclamation.
While the dissenting judge also found the emergency regulations to be “prima facie overbroad and arbitrary” (in that significant amendments were introduced barely a few days after their promulgation), he considered individual scrutiny to be an academic exercise since the regulations were not extended and no one was prosecuted under them.
The Supreme Court directed the Attorney-General to, within three months from the date of the judgement, incorporate the principles of law contained therein into a detailed legal advisory and to forward such advisory to the Office of the President for necessary consideration.
The AG was also directed to consider the petitioners’ submissions regarding the overbroad, vague, and arbitrary nature of past emergency regulations and to advise the President’s Office accordingly.
The best way to say that you found the home of your dreams is by finding it on Hitad.lk. We have listings for apartments for sale or rent in Sri Lanka, no matter what locale you're looking for! Whether you live in Colombo, Galle, Kandy, Matara, Jaffna and more - we've got them all!