There had been several court cases pertaining to unprecedented happenings and developments that ended up with democratically elected President Gotabaya Rajapaksa having to flee the country on 13 July, 2022, with mobs in hot pursuit, in the guise of angry, suffering civilians from the unprecedented economic crisis.
The Bar Association of Sri Lanka (BASL) was the first to move the Supreme Court against the economic crisis. The BASL filed two fundamental rights applications in the SC on 25 March, 2022, less than a week before the launch of Aragalaya, demanding the resignation of President Rajapaksa.
In spite of different descriptions regarding the launch of Aragalaya, the writer would like to consider the protest directed at President Rajapaksa’s private residence at Pangiriwatte, Mirihana, on the evening of31 March, 2022, as the beginning of the sinister campaign by its architects here and abroad, especially the latter to bury the Rajapaksas, both politically and physically. One major reason for their resentment was the Rajapaksas relatonship with China. The Rajapaksa government obviously failed to recognise the developing threat, fuelled by destruction of public services as a result of the economic crisis.
Having judged the rapid deterioration of the economy, in the run-up to the Pangiriwatte protest, where well organised groups overwhelmed the police and the military, fundamental rights applications were filed by the then BASL President Saliya Pieris PC, Deputy President, Anura Meddegoda PC, Secretary, Rajeev Amarasuriya (incumbent BASL President), Treasurer Rajindh Perera, and Assistant Secretary Pasindu Silva.
The petitioners were represented by Dr. K. Kanag-lsvaran PC, Uditha Egalahewa PC, Suren Gnanaraj and Pulasthi Hewamanne, instructed by G.G. Arulpragasam.
Declaring that their fundamental rights, under Articles 11, 12(1), 13(4),14(1)(g),14(1)(h) and 14A of the Constitution, were being violated, or in imminent danger of infringement by the actions and/or inaction of the State, including the Attorney General, the Cabinet-of-Ministers, the Governor of the Central Bank, the Secretary to the Treasury, Secretaries to several Ministries, the Ceylon Electricity Board, the Ceylon Petroleum Corporation and the State Pharmaceutical Corporation.
They wanted the SC to direct the Cabinet-of-Ministers, and/ or any other respondents, to immediately consult all the relevant stakeholders and independent experts to formulate and implement an action plan to provide uninterrupted access to and to provide concessions in relation to the prices of essential goods and services to the people, including LP gas, fuel, electricity, milk powder, medicines and food.
Subsequently, BASL filed a motion requesting the SC to take up cases urgently. The BASL also amended the affidavit to categorise those who accepted Cabinet portfolios after the appointment of Ranil Wickremesinghe as the Premier on May 12, 2022, as respondents.
However, the BASL, in late October 2022, suspended the action taken against the Wickremesinghe-Rajapaksa administration. By then Wickremesinghe was in the process of taking tangible measures to improve the ground situation. When the writer sought an explanation from the BASL as to why the cases that had been filed over the deterioration of the economy had been suspended as the situation remained critical, BASL President Pieris said, on 02 November, 2022: “It was laid by not withdrawn. Our Counsel thought that at the moment there is nothing the court can do further. It can be revived again.” The BASL move eased pressure on the Wickremesinghe-Rajapaksa government.
Merril Gunaratne is perhaps the first and the only ex-law enforcement officer to warn President Rajapaksa’s government of the impending threat. Responding to The Island queries regarding the violent Pangiriwatte protests that overwhelmed the police and the military, as well as clashes at Rambukkana, on 19 April, Gunaratne asserted that the police should quickly adopt a contingency plan to meet large scale, often violent and simultaneous protests as the turmoil was unlikely to end soon. Gunaratne said so on 20 April, 2022 (Ex-top cop urges police to be prepared for any eventuality as protests also have political undertones, The Island, 21 April, 2022).
The Rajapaksa government didn’t heed Gunaratne’s advice. Instead, the government arrested the senior officer in charge of the Kegalle Division for ordering the police to open fire on a violent mob at Rambukkana. Gunaratne pointed out that the police resorted to firing, after about 15 hours, after protesters blocked both the railway line and major roads, via Rambukkana, the former with a lethal incendiary device in the form of a commandeered petrol bowser. Gunaratne underscored that though protests erupted on 31 March, 2022, and quickly spread to the provinces, the police refrained from firing till 19 April, 2022.
RW’s response
Wickremesinghe brazenly exploited Aragalaya to his advantage, and that of his political party, despite the UNP having been reduced to just one National List slot in Parliament at the previous general election, under his leadership.
Having fully backed a high profile ‘Gota-go-Home’ campaign, Wickremesinghe changed his strategy the moment he accepted the premiership of the Sri Lanka Podujana Peramuna (SLPP)-led government, on the invitation of President Rajapaksa. That was 12 May, 2022. For Wickremesinghe there was no turning back. With an eye on the presidency, Wickremesinghe pressed ahead with his strategy, in the wake of an utterly foolish decision, on the part of Temple Trees, to unleash UPFA goons on the Galle Face protesters on 09 May. Aragalaya had been fully prepared and geared to mount a counter attack on a scale that reduced the Rajapaksa government to a Pradeshiya Sabha, within 24 hours. The Temple Trees attack gave Aragalaya the opportunity to unleash countrywide violence on a scale that took the government by surprise.
Had someone in authority bothered to act on advice offered by ex-Senior DIG Gunaratne the government could have had a mechanism to respond to the overwhelming threat. But President Rajapaksa was insistent on not spilling any blood.
The way Aragalaya activists set ablaze Premier/Acting President Wickremesinghe’s private residence, at Kollupitiya, on the night of 09 July, must have influenced his decision to take specific measures to regain control of the situation the moment he received appointment as the 9th President.
The SLPP threw its weight behind Wickremesinghe, at the expense of their own Dullas Alahapperuma, who suffered a humiliating defeat in Parliament. Gotabaya Rajapaksa, in his widely read ‘Conspiracy to oust me from the presidency,’ justified the SLPP choosing Wickremesinghe to complete the remainder of his five-year term. The author asserted that only Wickremesinghe could have handled the developing situation at that time.
The SLPP move divided the party and led to its total ruination of the setup. From a commanding position in Parliament at the time where the SLPP had a staggering 145 members (2020 to 2024), the indomitable party is now reduced to just three members, including Namal Rajapaksa. The SLPP National Organiser had been so unsure of himself, he entered Parliament through the National List. Let us get back to Wickremesinghe’s strategy to consolidate his position soon after the Parliament elected him the President. The UNP leader obviously acted on the premise that political authority couldn’t be consolidated unless he cleared protesters from government buildings. Although, initially, some believed, and asserted, that Aragalaya would de-escalate soon after Wickremesinghe received the Premier appointment, it was not so. The SLPP failed to realise that Wickremesinghe wouldn’t be satisfied with merely completing Gotabaya Rajapaksa’s term but wanted to contest the next presidential election, with the backing of the then ruling plan. But first Wickremesinghe had to take full control of the situation. Within hours after taking oaths as the President, Wickremesinghe unleashed the military on Galle Face protesters, who rather strangely melted into thin air after having threatened to die for the country for a system change.
On the orders of the President, who is also the Commander-in-Chief of the armed forces, the military evicted Galle Face protesters on the night of 21 July, 2022. Wickremesinghe had the blessings of the top SLPP leadership to restore government control. Wickremesinghe appeared to have been prepared to face any eventuality when he ordered the July 21st night crackdown to end mob violence. The move surprised those who had hitherto considered Wickremesinghe as their man.
The US, Canada and the UK objected to Wickremesinghe’s actions.
SC faults Prez
Nearly a dozen people challenged Wickremesinghe’s actions in the Supreme Court. The SC recently ruled that Wickremesinghe, in his capacity as Acting President, was wrong in declaring an emergency on 17 July, 2022, and ordered the Attorney General to issue instructions to future presidents on similar actions.
Justice Yasantha Kodagoda declared that the emergency declaration of 17 July, 2022, and regulations on 18 July, “are a nullity and are deemed to have never had the recognition of the law.”
“The Attorney General is directed to, within three (03) months from the date of this Judgment, incorporate the principles of law contained in this Judgment into a detailed legal advisory, and forward such advisory to the Office of His Excellency the President for necessary consideration,” Justice Kodagoda said.
“A copy of that advisory is to be filed on record in this Court”.
The outgoing Chief Justice Murdu Fernando agreed. That was her last ruling before retirement. But Justice Arjuna Obeyesekere dissented.
Before presenting Justice Obeyesekere’s opinion, let me identify the petitioners, namely former member of the Human Rights Commission Attorney-at-Law Ambika Sathkunanathan, Attorney-at-Law Wewala Pandithage Namini Thathprabha Panditha and Rusiru Tharinda Egodage (Liberal Youth Movement of Sri Lanka), Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu, Attorney-at-Law Atham Lebbe Aazath and LL.B. graduate and a student of the Sri Lanka Law College Laxmanan Sanjeev, and Head of Programmes at the Law and Society Trust T.M.P. Sandun Thudugala.
The Attorney General has been named a respondent in terms of Article 35(1) of the Constitution as at the time of filing fundamental rights petitions Wickremesinghe served as the President.
Petitioners challenged issuing a proclamation under section 2 of the Public Security Ordinance, No. 25 of 1947 (as amended) on a countrywide state of Emergency on 17th July, 2022. On the following day, Wickremesinghe promulgated Emergency Regulations under section 5 of that Ordinance. The Petitioners challenged both the issuance of the Proclamation and the promulgation of Emergency Regulations. Asserting that the situation on the ground didn’t require such a response, they considered the Acting President’s decisions an abuse of power.
Regardless of the petitioners’ assertion that the situation on the ground hadn’t warranted such a response, during hearing of the case, the Counsel, who appeared for the petitioners, agreed with the Deputy Solicitor General, appearing for the respondents, that on 19th July a large mob forcibly entered and occupied the Prime Minister’s Office, situated at Flower Road, Colombo 7.
It would be pertinent to mention that the Aragalaya mob murdered SLPP lawmaker Amarakeerthi Athukorale, and his police bodyguard, in broad daylight, at Nittambuwa, on 09 May, 2022, and the abortive bid to take control of Parliament on 13 July, 2022. The respondents asserted that the move against the Parliament was meant to prevent the proposed election of a President (SLPP backed Wickremesinghe, Dullas Alahapperuma sponsored by SJB, and NPP’s Anura Kumara Dissanayake, were in the fray) to complete Gotabaya Rajapaksa’s five-year term.
Although the SC ruling made no reference to the JVP/NPP, the role played by the JVP in that operation against the Parliament is all too well known.
Before thebpolice and the armed forces brought the situation under control, the Aragalaya activists had snatched two T-56 Chinese assault rifles, three magazines and 60 rounds of ammunition. Several police and military personnel suffered injuries.
Essentially, Wickremesinghe’s decision to declare a countrywide emergency should be considered, taking into consideration the incidents on 09 May, 09 July and 13 July 13. The SC was told that Wickremesinghe acted on the advice given by the IGP, Secretary to the Ministry of Defence and the Public Security Minister.
In the section headlined ‘Conclusions reached by Court regarding the factual scenario,’ Justice Kodagoda stated the following: “The events of 2022 referred to by both the Petitioners and the Respondents associated with the Aragalaya and in respect of which some amount of evidence has been placed before this Court are certainly unprecedented in the annals of the history of this country. Though there may be debate regarding the possible causes, motivating factors, socio-political dimensions, whether or not there was any external interference or involvement, justification, lawfulness or otherwise of the individual incidents that constituted the Aragalaya as well as the Aragalaya as a whole, identities of those involved both directly and indirectly, outcomes, immediate and long-term implications, etc., the events themselves have become part of the publicly known recent history of this country.”
A dissenting opinion
Justice Arjuna Obeyesekere, respectfully disagreed with the majority opinion that Wickremesinghe’s proclamation at issue is arbitrary, an abuse of power, illegal, and hence a violation of the fundamental rights of the People of this Country guaranteed by Article 12(1) of the Constitution. Justice Obeyesekere declared that his own evaluation of the situation and the relevant law led him to a different conclusion. Obeyesekere’s thought-provoking opinion is a must read for lawmakers and all those who are genuinely concerned about the circumstances President Gotabaya Rajapaksa was forced to flee the country on 13 July, 2022, and the then Speaker Mahinda Yapa Abeywardena’s confirmation of external intervention in Aragalaya on 21 March, 2024.
Why did Abeywardena wait or so long to make that disclosure? If the SLPPer hadn’t been subjected to a no-confidence motion by the Opposition for alleged violation of constitutional provisions as head of the Constitutional Council at the voting to approve the appointment of Deshabandu Tennakoon as the IGP.
Speaker Abeywardena inadvertently confirmed National Freedom Front (NFF) leader Wimal Weerawansa’s shocking claim of US intervention in Aragalaya made in March 2023. Writer Sena Thoradeniya, in his must read Galle Face Protest; Systems Change or Anarchy? launched a couple of months later explained the US role in overthrowing Gotabaya Rajapaksa.
Speaker Mahinda Yapa Abeywardena revealed in Parliament that he had been asked by some foreign powers to take over the executive presidency while the country was in crisis owing to the Aragalaya protests.
Abeywardena alleged that the objective of those who made that request was to create another Libya or Afghanistan here. They did not want to resolve the crisis or restore law and order to protect this country. Declaring that during Aragalaya, many parties had pressured him to accept the post of Executive President, Abeywardena claimed that there were both local and foreign forces. “I was asked to name a Prime Minister and Cabinet-of-Ministers and rule the country.
“However, I was determined to uphold democracy,” the Speaker said, adding that he was surprised to see some of those who asked him to become the President of the country had signed the no-faith motion against him.
In support of his dissenting opinion, Justice Obeyesekere referred to paragraph 47 of the majority decision. He pointed out that an extraordinary situation which had serious security implications existed in Sri Lanka at the time President Wickremesinghe declared a state of emergency on 18 July, 2022. The bid to surround Parliament on 13 July, 2022, may have caused the sabotage of the scheduled election in Parliament on 20 July, 2022, in terms of Article 40(1) (C) of the Constitution. Therefore, in the majority opinion, too, on the day President Wickremesinghe declared a countywide emergency, there was a serious situation involving a deterioration of law and order in the country.
Justice Obeysekere emphasised that once the President is satisfied that there existed a state of public emergency he could make the proclamation under Section 1. The justice declared that there was no need to choose between Section 2 of the Ordinance on the one hand, and inter alia Sections 12, 16 and 17 in Part III of the Ordinance on the other.
Having meticulously explained the basis on which he formed dissenting opinion, Justice Obeyesekere declared that the fundamental rights of the petitioners guaranteed by Article 12(1) have not been infringed by Wickremesinghe by making of the disputed proclamation. Obeyesekere dismissed all applications, without costs.
