States of Emergency - Centre for Policy Alternatives

Supreme Court was initially restrained in the engagement of its
fundamental rights jurisdiction under Article 126 of the 1978
Constitution, which contemplated a more robust role for the court
in the enforcement of justiciable positive rights against executive
and administrative action.
Thus for example in Yasapala
 v.
 Wickremasinghe (1980), the
Supreme Court held that the President was the sole arbiter of the
circumstances necessitating a Proclamation of emergency and was
not bound to state reasons for that decision. Sharvananda J. held
that, “It is not competent for the Court to examine whether a
Regulation was reasonable in the circumstances or likely to
achieve the object of defusing the emergency. It is not the objective
fact but the subjective
opinion
of
the
President that it is necessary
or expedient to pass a regulation that is a condition of the
regulation‐making power.” 315 His Lordship relied on a number of
Commonwealth cases, but primarily on the opinion of Lord Greene
M.R. in Carltona
Ltd
.v.
Commissioners
of
Works
(1943) to the effect
that. “All that a Court can do is to see that the power which it is
claimed to exercise is one which falls within the four corners of
the powers given by the legislature and to see that those powers
are exercised in good faith. Apart from that, the Courts have no
power at all to inquire into the reasonableness, the policy, the
sense or any other aspects of the transaction.” 316
However, the Supreme Court soon started developing a more
assertive role. In Edirisuriya
 v.
 Navaratnam
 (1985), the Court
315
Yasapala
v.
Wickremasinghe (1980) 1 FRD 143 at 155‐156, emphasis added;
Janatha
Finance
and
Investments
v.
Liyanage
(1982) 2 FRD 373
316
Carltona
Ltd
.v.
Commissioners
of
Works (1943) 2 All ER 560 at 564; see also
Bhagat
Singh
v.
King
Emperor
(1931) AIR 111 (PC); H.W.R. Wade & C.F. Forsyth
(1994) Administrative
Law (7 th Ed.) (Oxford: Clarendon Press): p.442 et seq.
195