Presidential authority...

VI. Imaginative features of the evolving law

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The limits of judicial review in this setting emerge clearly from impeccable precedents across the world. Legitimacy of the Proclamation of Emergency issued in Sri Lanka by the Acting President on 17 July 2022, assessed in light of these precedents, admits of no doubt.

The dominant test is that based on proportionality. The salient requirement is that the impugned measure should clearly realise or advance its underlying purpose, that “the use of such means would rationally lead to realisation of the law’s purpose”(A. Barak). In terms of a comparative assessment of the harm inflicted on constitutional rights and the benefit accruing to the public interest, intervention by the Executive should come down heavily on the side of the latter as opposed to the former (A.P. Brady).

The basis of justification is that the risk of harm sought to be averted should be very high, an overriding public interest being placed at stake in a situation where the outcome is perilously uncertain (J.Zander). Gravity of the risk and the extent of impending harm are the governing factors.

Evaluated against these criteria, the Sri Lankan Emergency Proclamation of 17 July 2022 passes the test with ease. In the backdrop of the nerve centres of the Executive Administration having fallen to the control of a violent mob, and the attempted extension of their initiative to the precincts of Parliament, where a crucial vote was scheduled within a matter of days for the election of the President of the Republic, in keeping with constitutional procedure, the Proclamation clearly served the purpose of ensuring unimpeded access to Parliament for legislators to perform their constitutional duty. Prevention of this by unlawful force would have presaged nothing less than the collapse of constitutionalism and the descent of the country into anarchy.