“Liar, Liar! Sarong On Fire”: Sri Lankan President & Prime Minister Caught Lying To Cover Their Inaction
Thishya Weragoda
“The buck must ALWAYS passed FROM here” must be the sign on top of President Maithripala Sirisena’s table. It must also be on the tables of several Ministers of the Government including the Prime Minister. In fact it must have been there on the tables when they got to the respective offices. Their predecessors too must have had it when they got there too. It is a hallmark of Sri Lankan politics to pass the buck.
However passing the buck in the magnitude we have seen in the last 5 days is unprecedented. The President, Prime Minister and the State Minister of Defense all have dodged their responsibilities. The blame has conveniently been shifted to the Inspector General of Police and the Defense Secretary who are being forced to resign in the aftermath.
The President, during a discussion with religious leaders on 26th April 2019 said, inter alia that there are no laws that allow for the banning of the NTJ. The Prime Minister in an interview with SkyNews (UK) said that there are no laws in place to arrest returning ex-ISIS fighters as joining a foreign terrorist group is not a crime.
Both these comments by the President and the Prime Minister are highly irresponsible and erroneous and makes Sri Lanka look like a primitive nation whose laws have not caught up with the 21st century. In fact both statements are outright lies. Although it is true to an extent, that our Parliament has not legislated to catch up with the advancements of the world, we do have the necessary legal framework to cover both situations which were referred to by the President and the Prime Minister.
National Defense and Maintenance of Public Security
It is a basic concept that we, the sovereign citizens, waive “our natural rights in favor of the State, which by its protection, reconcile equality and freedom”.[1] This is considered as the social contract of a functioning democracy. Therefore in exchange for protection, equality and freedom, we abdicate our sovereign rights in favour of the State.
Article 4(b) of the Constitution of the Republic enacts that “the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People”. Thus there is a direct obligation on the incumbent President to ensure the defence of the Republic both from internal and external aggressions. Further, the President has the sole discretion to declare war and peace, and that discretion is the only discretion exercised by the President which is not subject to judicial review by the Supreme Court[2] in any Fundamental Rights application.[3]
For the maintenance of good order and peace of any democratic Republic, laws that provide for exigencies and emergencies are essential. Although in ordinary course, the Legislature must make laws that applies for situations, in emergency situation where ordinary public life is in danger, the executive must have the power to make laws that takes back control of the situation. In Sri Lanka this aspect is covered by the Public Security Ordinance.
Article 155 of the Constitution gives legal validity to the Public Security Ordinance. It enacts inter alia that any regulations, made under the Public Security Ordinance has the legal effect to override, amend or suspend the operation of any law or Statue of the Provincial Councils, except the provisions of the Constitution. – This is an important safeguard in the Constitution. It ensures that an eccentric President cannot suspend the operation of the Constitution and declare himself king, by proclaiming that there is an emergency. There are further safeguards that are placed in the Constitution to ensure that an overzealous President does not arrogate unimaginable powers unto himself. Any proclamation of emergency must be forthwith be communicated with the Parliament, and approved by Parliament within 14 days of being issued. Emergency declared by Proclamation is valid for a period of 30 days only, and must be extended by the President every 30 days and all such extensions must be approved by Parliament and if Parliament does not approve such proclamation, the proclamation of emergency shall immediately cease to be valid. These important constitutional safeguards and prominence is given to the Public Security because the President is expected to react swiftly and diligently to emergencies only and not to abuse the powers entrusted with him.
State of Emergency and Emergency Regulations
It is in this background the Public Security Ordinance must be assessed. In terms of Section 2 of the Public Security Ordinance, the President in his absolute discretion may declare that an emergency situation has arisen and bring Part II of the Ordinance into operation. Until such Order is issued, Part II of the Public Security Ordinance remains inoperative. Although the calamitous events took place on Sunday 22nd April 2019, since the President was overseas, Emergency could not be declared until a day later.[4]
By the aforesaid Order, Part II of the Public Security Ordinance was brought into force, no regulations in terms of Section 5 were issued immediately thereafter. Originally the Government Printer’s website indicated that the Emergency Regulations were to be published under Gazette Extraordinary No. 2120/04. However, it was only available on 24rd April 2019 at 7AM under Gazette Extraordinary No. 2020/05 giving a strong indication that the Emergency Regulations were in fact not actually published on 22nd April 2019 as indicated in the Order. Adding further to the mystery the Gazette Extraordinary No. 2120/04 was published on 23rd April 2019 calling the Tri-Forces to maintain public Order. In fact it was only on 23rd April 2019, a whole 2 days later that the tri-forces were deployed to maintain public security. Although the changes and delays in publishing the Gazettes seems so trivial in the larger scheme of things, it clearly demonstrates that the President nor his public officials had any preparedness to respond to any form of emergency.
