States of Emergency - Centre for Policy Alternatives

estrictions based on public order or national security must
demonstrate that the impugned speech would undermine the
public order or was an incitement to the commission of an offence.
The case established the precedent for a series of later cases in
respect of freedom of expression where the Supreme Court
adopted more stringent standards of scrutiny for purported
restrictions. 339
The establishment of a more robust standard of accountability in
Joseph
Perera has also inLluenced the Supreme Court’s case law in
respect of arrest and detention and the right of personal liberty
and security set out in Article 13. The court has developed a body
of rules in this respect that Lill the considerable gaps in the
constitutional and statutory texts in favour of fundamental rights.
While the argument must surely not be overstated, this has
contributed to establishing at least some basic standards of the
rule of law, fundamental rights and reasonableness of executive
and administrative action during states of emergency. 340
Despite these developments, it was observed earlier that the
vesting of original jurisdiction in the Supreme Court in respect of
fundamental rights has inhibited the coherence of the
constitutional jurisprudence on the bill of rights. For example, in
339
See for e.g., Amaratunga
v.
Sirimal
and
Others
(1993) 1 SLR 264;
Shantha
Wijeratne
v.
Vijitha
Perera
(2002) 3 SLR 319; Karunatilleke
v.
Dissanayake
No.1
(1999) 1 SLR 157
340
See Wickramabandu
v.
Herath
(1990) 2 SLR 348; Seetha
Weerakoon
v.
Mahendra
(1991) 2 SLR 172; Gamini
Perera
v.
Rajaguru
(1997) 3 SLR 141;
Sunil
Rodrigo
v.
Chandrananda
de
Silva
(1997) 3 SLR 265;
Vinayagamoorthy
v.
The
Army
Commander
and
Others
(1997) 1 SLR 113;
Jayaratne
and
Others
v.
Chandrananda
de
Silva
(1992) 2 SLR 129;
Abeyratne
Banda
v.
Gajanayake
(2002) 1 SLR 365; and under the PTA,
Weerawansa
v.
The
Attorney
General
and
Others
(2000) 1 SLR 387
217