A Landmark Judgment in Sri Lanka’s Constitutional History
Photo courtesy of The National
A historic and far reaching ruling was delivered by the Supreme Court of Sri Lanka on July 23. The court ruled that emergency regulations imposed by then Acting President Ranil Wickremesinghe violated fundamental rights. These regulations were used to disperse peaceful protesters at Galle Face at the height of the aragalaya in July 2022. This decision is a key moment in Sri Lanka’s democratic development. It reinforces the importance of constitutional freedoms and the rule of law even in times of national crisis.
On July 17, 2022 in the midst of an unprecedented economic collapse and mass civil unrest, President Wickremesinghe declared a State of Emergency with effect from July 18, 2022 under the powers granted by Sec. 2 of the Public Security Ordinance. The emergency regulations to provided sweeping powers the police and armed forces, including the authority to search, arrest and detain individuals without due process. This proclamation was formalised through Gazette Extraordinary No. 2288/30.
A day later the government introduced the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 2022 via Gazette Extraordinary No. 2289/07. While some claimed that public protests had to stop because of the State of Emergency declaration, these claims were false. A declaration of emergency does not change the existing laws and fundamental rights guaranteed by the constitution. It allows the president to issue emergency regulations that can override any law but they cannot override the constitution.
These emergency regulations were largely identical to those issued in May 2022 by former President Gotabaya Rajapaksa through Gazette Extraordinary No. 2278/23 but with two notable and more draconian changes; Sections 408–426 of the Penal Code were added under Regulation 12, criminalising acts such as causing “mischief” with harsher penalties including life imprisonment. And under Regulation 17(2), the permissible detention period before production before a magistrate was extended from 24 to 72 hours without judicial oversight. The regulations were imposed in the immediate aftermath of mass civilian protests demanding political accountability, transparency and relief from soaring inflation and shortages.
The petition and Fundamental Rights challenge
In SC FR No. 26/2022, several civil society actors filed Fundamental Rights petitions challenging the legality of the emergency declaration and the associated regulations. The petitioners included Dr. Paikiasothy Saravanamuttu (Centre for Policy Alternatives), Ambika Satkunanathan (former Human Rights Commissioner) and the Liberal Youth Movement represented by Thathprabha Panditha, Atham Lebbe Aazath and Sandun Thudugala.
Central to their argument was the contention that these emergency measures violated several fundamental rights enshrined in the constitution. First and foremost was Art. 11, which guarantees freedom from torture and from cruel, inhuman or degrading treatment. The petitioners raised concerns that the extended powers of arrest and detention without prompt judicial oversight created conditions ripe for abuse and mistreatment, particularly during prolonged detentions without legal representation.
They also pointed to a breach of Art. 12(1), which ensures the right to equality and equal protection under the law. By targeting peaceful protestors and treating them as criminals under vaguely defined or exaggerated offences, the emergency regulations effectively discriminated against those exercising their democratic rights undermining the very principle of equal treatment before the law. The petitioners emphasised that the regulations violated key protections related to arrest, detention and the right to a fair trial as guaranteed under Articles 13(1), 13(2) and 13(5). These constitutional provisions ensure that individuals are protected from arbitrary arrest, must be informed of the reasons for their arrest, brought promptly before a judge and presumed innocent until proven guilty. By extending the detention period to 72 hours and limiting access to legal counsel, the regulations stripped individuals of these safeguards, exposing them to serious rights violations.
The petitioners argued that the regulations encroached on Art. 14(1)(a) and (d), which protect the freedom of speech and the right to peaceful assembly. These are core democratic freedoms, and the right to protest especially in a time of national crisis which should be protected, not criminalised. By banning assemblies and using state force to dismantle protest sites such as Galle Face Green, the government, they argued, acted in direct violation of the constitution.
A victory for democracy
The Supreme Court bench comprising Chief Justice Murdu Fernando, Justice Yasantha Kodagoda and Justice Arjuna Obeysekera delivered a majority ruling in favor of the petitioners.
Justice Yasantha Kodagoda, delivering the majority opinion, held that the “emergency regulations were arbitrary and unreasonable, failing to meet the constitutional standards of necessity and proportionality”. He concluded that the measures clearly violated Art. 12(1) of the constitution, which guarantees all citizens equal protection under the law.
Importantly, the court rejected a preliminary objection by the Attorney General’s Department, which claimed that the Supreme Court lacked jurisdiction under Art. 126. The court reaffirmed that it does, indeed, have constitutional authority to review and rule on alleged violations of fundamental rights even when they stem from executive declarations of emergency. In a powerful statement, Justice Kodagoda declared that “the imposition of emergency law cannot override constitutional protections and that such powers must be exercised with restraint and justification.”
As a result of its findings, the Supreme Court declared the Emergency Regulations void, ruling that they were unconstitutional and infringed on fundamental rights. The court also held that the emergency declaration itself violated key constitutional protections and ordered the government to pay legal costs to the petitioners.
Dissenting opinion
In a separate opinion, Justice Arjuna Obeysekera dissented from the majority ruling. He maintained that the emergency declaration and associated regulations were justified under the circumstances, arguing that they did not infringe upon fundamental rights and were proportionate given the volatile national context. He stated that “I am of the view that it was reasonable for the President to have come to the conclusion that the situation that prevailed in the Country as at 17th July 2022 was certainly an extraordinary and serious situation which had serious security implications giving rise to a state of public emergency and the imminence thereof, and involved a deterioration of law and order in the country. Parliament was to meet on the 20th to elect a new President. If what occurred at the Polduwa junction on 13th July 2022 could have given rise to “Parliament being virtually encircled by protesters (by blocking the other roadways as well),” and “if not brought under control in a timely and effective manner, had the possible effect of thwarting the holding of the scheduled election in Parliament on 20th July 2022”, then, it was imperative that steps as provided for by law be taken. In my view, democracy demanded the Executive to act swiftly and decisively.”
Justice Obeysekera’s view, while grounded in an appreciation of the broader crisis, was ultimately outweighed by the majority’s focus on constitutional fidelity and the protection of civil liberties.
Legal representation and impact
Under Art. 126 of the Constitution, people can directly petition the Supreme Court if their fundamental rights are violated. Art. 132(3) states that the court’s decision is final and must be followed by the state and public authorities. This emphasises the judiciary’s duty to protect individual freedoms. As a result, these rulings become part of the legal system and must be followed by lower courts in future cases with similar facts or legal issues.
This judgment is not merely a legal milestone; it is a resounding affirmation of democratic values, civic courage and the enduring power of constitutional safeguards. In the words of the petitioners; “You are born with rights. You are born with liberty. These freedoms are not gifts from any government – they are yours by nature. And when they are violated, you have every right – and every reason – to stand up and reclaim them”.
The ruling stands as a moral and legal victory for every Sri Lankan committed to freedom, dignity and justice. It affirms that peaceful protest is a protected right, that government actions are subject to constitutional scrutiny and that young people and civil society movements can hold even the most powerful accountable.
In a time when repression seemed overwhelming, this case proved that justice was still possible and that the constitution was not just a document. It is a strong reminder to all citizens that freedom is not given; it is upheld through action, courage and law.
