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The fact that the extension of the State of Emergency was approved by Parliament with reportedly just two opposing votes says more about the paralysis of the political Opposition in the country than the mala fides of the Janatha Vimukthi Peramuna led National Peoples’ Power (NPP) Government in placing the extension before the House in the first instance.

The legality of extending a State of Emergency

There was an odd juxtaposition here. The proverbial ink had not dried on a cautionary statement issued by the Human Rights Commission of Sri Lanka (HRCSL) earlier this week on ‘emerging threats to the freedom of expression and particularly the freedom of journalists to engage in their profession without interference’ when the Government, through its Prime Minister, assured the House that the emergency will not ‘in any circumstances’ be used to ‘suppress the media’ or society.

Apart from soothing platitudes, did any member of the Government actually justify why a State of Emergency, initially issued in the wake of Cyclone Ditwah, continues to be needed when there is manifestly no emergency whatsoever in Sri Lanka? This question has to be asked with all possible force since it impacts on the legal context in which such an emergency can be declared under the Public Security Ordinance (PSO) – and extended.

The Prime Minister was remarkably disingenuous when she attempted to explain the extension on the floor of the House on the basis that ‘there are areas to be rebuilt…under these circumstances, we have been compelled to intervene swiftly.’ ‘This requires the rapid mobilisation of resources including human resources and essential material supplies,‘ she added. This explanation has a richly ironic flavor about it.

Not acting ‘swiftly’ then and now

More so as it is being articulated by a Government which failed to do just that; namely ‘act swiftly’ as a devastating cyclone impacted on vulnerable regions, specially in the hill country. Where is the need for ‘swiftness’ now, pray? And to use a State of Emergency for that purpose speaks to political chicanery of an obnoxious kind. In fact, this has been taken by the NPP Government to an unprecedented extent.

This goes even beyond the far from snow white purposes for which previous Sri Lankan Governments have used the PSO. That unsettling ‘system change’ comes from the bland explanation by ruling politicians that ‘somehow’ it is required. That flies in the face of the reality that post-cyclone relief and rebuilding can be perfectly dealt with under the normal law and administrative processes.

Are there angry crowds storming government offices demanding that they have been discriminated against? No. Is a breakdown of law and order evidenced in relation to the distribution of relief supplies? Palpably, the answer to that question is negative. The fact that district and divisional level administration has been corroded by a creeping ‘JVP-isation’ resulting in allegations of relief supplies being ‘diverted’ to party political factions is a different matter altogether.

Extraordinarily strict justification is needed

Whimpers and murmurs by affected victims that they have been ignored have remained precisely at that grumbling stage only. We must not forget that in terms of Section 2 of the PSO, an extraordinarily strict duty is laid upon the President to declare a State of Emergency. This is where, ‘in view of the existence or imminence of a state of public emergency,’ the President is of the opinion that it is ‘expedient to do so in the interests of public security and the preservation of public order.’

A third ground, namely, ‘the maintenance of supplies and services essential to the life of the community’ is also specified. This is language that is terrifyingly familiar to all of us. During the many decades that Section 2 has been resorted to by Presidential Proclamation with Emergency Regulations being declared thereafter, the basis on which such a situation comes into effect has been dissected, argued over and in some cases, challenged in the apex court.

Mid last year, these were exactly the tensions that surfaced when the Supreme Court was called upon to examine the legality of the issuance of a Proclamation by former President Ranil Wickremesinghe on 17th July 2022, (with effect from 18th July) in the turbulent aftermath of the island wide ‘aragalaya‘ (protests) against the then Rajapaksa Government which was summarily thrown out.

Varying judicial opinions on ‘expediency’

Had the President correctly determined within his discretion, whether a public emergency (or the imminence thereof) existed? The majority held that though ‘serious security implications’ continued which could have very well thwarted the holding of the scheduled election (to elect a President) on 20th July, existed, the executive arm of the State and the ‘writ of governance’ had not been paralyzed.

Further, no protests or violence prevailed outside Colombo and suburbs with curfew being gradually reduced. Therefore, it was ‘highly doubtful’ that a ‘state of public emergency’ existed at that point, it was opined. Even assuming a genuine belief to that effect, the majority held that there was no documentation before the Bench to explain why the President believed it to be ‘expedient’ to issue a Proclamation over ‘the entire country.’

Consequently, the majority decided on an ‘irresistible inference’ that the Proclamation was unreasonable and arbitrary. A cogent dissent by a minority of one took a different view, pointing out that the ‘extraordinary situation’ existing before July 17th, had not dissipated and that the Proclamation had been ‘reasonably issued.’  The President had formed an objective view that a ‘public emergency’ existed, which may even include a ‘temporary upheaval.’

Extending a post-Ditwah emergency

We will not go into other factors that surfaced in this decision (Sathkunanathan v Attorney General and Others, SCM 23.07.2025) but the purpose of the referral is to illustrate the public anxiety with which these decisions are scrutinised as affecting the liberties of citizens. If the original decision to issue a Proclamation declaring a State of Emergency is hedged around by such stringent safeguards, should not a similar weight be given to the extension of the same?

To argue to the contrary is clearly bereft of logic, if one is to be gentle. What was the justification to extend a post-Ditwah emergency over the ‘whole country’, hearkening back to what the Court asked? And to return to the thrust of the point made in the opening paragraphs of this week’s reflection, why was the extension not robustly challenged? Indeed, the Opposition (far more than the Government) is responsible for this.

Merely expending hot air during the parliamentary debate does not discharge that burden. Underlying these concerns, the capitulation of Opposition representatives to a (reconstituted) Constitutional Council’s acceptance of a once rejected Presidential nominee as the Auditor General of Sri Lanka speaks to this same paralysis. It seems that the people must rise up more against the Opposition than the Government, in a manner of speaking.

A dangerously anti-democratic slide 

Underlining the fragility of the new found ‘system change’, it is no coincidence that the HRCSL’s Statement, referred to previously, questions law enforcement officials in investigating allegedly defamatory speech by journalists without due process. That includes the police summoning a journalist in regard to a disturbing allegation of ‘reporting on corruption in the use of public funds’ without informing the reason why he had been summoned.

As the HRCSL has noted, summoning persons without giving reasons for such by police officers violates Circular RTM 101/CRTM 61 issued by the Inspector General of Police (IGP) which is honoured more in its breach than its observance, to borrow from the Bard. Are the police, acting under an NPP Government which promised ‘system change,’ even aware that criminal defamation was abolished in Sri Lanka decades ago?

A State of Emergency frames and protects such abusive behavior. Its extension by a supine Parliament must be roundly condemned as a dangerous ‘normalization’ of emergency law.