Presidential authority in times of emergency: A contemporary appraisal

ONE of the great challenges of modern public law is to reconcile traditional principles relating to the rule of law and the separation of powers with the exigencies of crises which threaten the destruction of society itself.

- By Professor G.L. Peiris

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

To what extent must protective mechanisms developed by systems of law over the ages give way to the need for physical survival in the throes of life-threatening crises? What is the right balance to be struck, as a matter of public policy?

The classic statement is by John Locke, who insisted that, in emergencies, the government should have legally unfettered power “to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it” (Second Treatise of Government). This is an ancient idea which goes back to Roman times, when Cicero, in his famous oration, Pro Milone, declared: “Inter arma silent leges” (“Amid the clash of arms, the laws are silent”).

This received expression in the present century in the work of Carl Schmitt, who insisted that “the sovereign is he who decides on the state of exception” (Political Theology:Four Chapters on the Concept of Sovereignty). According to him, not only is the sovereign’s authority untrammelled during emergency, but the declaration of emergency is his right alone, dependent solely on the exercise of his subjective judgment. This unqualified power springs from the supreme law of nature which is the safety of the people.