Emergency regulations and differing court interpretations

The Supreme Court this week dismissed two Fundamental Rights petitions filed challenging President Anura Kumara Dissanayake’s decision to impose Emergency Regulations following Cyclone Ditwah. A three-member bench presided by Chief Justice Preethi Padman Surasena gave the ruling after considering the submissions and refused leave to proceed with the petitions and dismissed them in limine (at the outset).

The Additional Solicitor General appearing for the Attorney General informed Court that the Emergency Regulations were promulgated by the President in anticipation of an emergency situation in the country, and that the President’s authority to take decisions during such emergency situations should not be curtailed.

The President promulgated the emergency regulations under the powers vested him under the Public Security Ordinance  on 29 November, and its nearing three months since the law was put in place. The unprecedented situation  warranted the special laws in place but there are questions as to why the emergency regulations are still in place given the emergency situation has now passed and the normal laws are adequate to deal with the current situation.

In comparison to the SC ruling on the imposition of the Emergency Regulations by the current President, take the judgement given by the SC in July last year by a majority decision in which it ruled that Fundamental Rights had been violated by the then Acting President Ranil Wickremesinghe by his orders to disperse unruly protesters from Galle Face on 17 July 2022, by using to Emergency Regulations under the Public Security Act. Two of the three judges on the bench headed by then  Chief Justice of Justice Murudu Fernando held that the Emergency Regulations promulgated by the then Acting President under Section 2 of the Public Security Act were arbitrary, and therefore, invalid.

However, Justice Arjuna Obeysekara who was the dissenting judge, in a separate judgment, stated that the declaration of Emergency Regulations by the Acting President did not constitute a violation of fundamental human rights.

Let’s take the case of the current President’s decision to impose emergency regulations. The devastation cause by cyclone Ditwah was unprecedented and needed the deployment of additional troops and procuring of services for which the emergency laws were needed. As the Attorney General’s representative told the SC, correctly so, the President’s authority to take decisions during such emergency situations should not be curtailed.

In contrast, take the case of July 2022, when the then Acting President-imposed emergency regulations. He was acting in the absence of a President who had fled the country and after the first flush of euphoria of Gotabaya Rajapaksa hurried departure, the country was fast descending into near anarchy. Unless some has short term memory loss, it’s not easy to forget that both SJB leader Sajith Premadasa and current President Dissanayake were chased off by mobs gathered at Galle face Green and both men got away in the nick of time without grievous injury or even worse. Government buildings were forcibly occupied, houses set on fire and there were unruly mobs at large.

Then there were some who are now ministers in government inciting crowds to burn down the Parliament, the very building in which they now sit in air-conditioned comfort and sing praises of democracy.

In such an ensuing situation what does an Acting President do but use the powers at his disposal which are there for the very purpose of dealing with an emergency situation.

But at least two judges of the SC felt  that the then Acting President had violated fundamental rights by acting to prevent the country from descending to anarchy and the possible destruction of the democratic  structure of the country including the judiciary.

In a healthy democracy, citizens should be free to question everyone and everything including the application of the law. Hence citizens should study such judgments and make a critical analysis about them. The e law must be above individuals and applying the law equally is what keeps a democracy vibrant and enforces the public faith in all their pillars of the State.