SC judgment on former President Sirisena’s “dismal failure”

The SC judgment concluded in its lengthy judgment that former President Maithripala Sirisena has been lax in affording the protection and guarantees enjoined under the Constitution and other laws and he has breached his duty to protect. Thus we hold that he has infringed the fundamental rights enshrined under Article 12(1) and 14(1)(e) of the Constitution.

It stated that this dismal failure on the part of the former President Sirisena resulted in disastrous consequences for this country and not only lives were lost and properties destroyed but inter racial tension and inter-ethnic hatred began to raise their ugly heads causing the very fabric of this nation to be broken and become fragile. There were fear psychosis, apprehension and interethnic alienation that were palpable.

It also held that the National Security Council (NSC) had been in existence for several years and it would appear that it had functioned without any legal framework. It was given statutory recognition under the Public Security Ordinance in terms of Emergency (National Security Council) Regulation No 1 of 1999 published in Gazette Extraordinary No 1081/19 and dated 27th May 1999.

This subordinate legislation established an NSC with the President as its head, tasked with the maintenance of national security with authority to direct security operations and matters incidental to it. This Court heard submissions that prior to January 2015, the NSC used to meet every week on Wednesdays under the chairmanship of the President, before which an intelligence coordination meeting was held on Tuesdays presided over by the Secretary, Defence.

This arrangement paved the way for many an aspect of national security to be thrashed out at these meetings and intelligence and other useful information used to be freely exchanged at these meetings. It is how the executive was kept apprised of the national security situation in the country and that facilitated the discussion of all matters pertaining to national security.

It would appear that under the presidency of the former President Sirisena the NSC meetings were sporadic and not regular. If one were to formulate policies with regard to national security and exercise supervision over the security echelons of the Government, the NSC was a useful tool in the hands of the President but a notorious misappreciation of the duties and functions of the Minister of Defence has led to an appalling lack of appreciation of the importance of the National Security Council.

The dangers posed by Zahran and his terrorist outfit could have been effectively appreciated and dealt with had this mechanism been in place but its efficacy had been lost on the then President. The Court finds that there was no meeting summoned for of either ICM or NSC after 9 April 2019 and in our view, it is a serious lapse having regard to the nature of intelligence information received and following the 16 April 2019 dry run explosion.

It would appear that despite the 1999 Gazette which provided for the Constitution of the NSC, the attendance at the NSC had been determined solely by the President with no reasons given for the exclusion of key members who should have been an indispensable part of security and intelligence briefings such as the Prime Minister, State Minister for Defence and the IGP.

There was extensive submission that the Prime Minister was kept out of the NSC and was not provided with any information. 105 All this is a stark reality that strikes this Court as a serious omission on the part of the then President.

In 2019 there had been only two NSC meetings convened by him. One was on 14th January before the discovery of the Wanathawilluwa explosives and arms cache and the next on 19th February. This was one of the largest discoveries of explosives after the end of the war in 2009. It cannot be gainsaid that the former President Sirisena was made aware of these discoveries at Wanathawilluwa.

In these circumstances it was obligatory on the part of the former President Sirisena to have convened the NSC every week and put in place a mechanism to address the threat posed by Zahran and his cohorts. This was never done much to the discomfiture and dislocation of the security apparatus. It has to be pointed out that only after the bombs ripped through the nooks and crannies of this country, wisdom dawned upon the importance of NSC meetings.

This dismal failure on the part of the former President Sirisena resulted in disastrous consequences for this country and not only lives were lost and properties destroyed but inter racial tension and inter-ethnic hatred began to raise their ugly heads causing the very fabric of this nation to be broken and become fragile. There were fear psychosis, apprehension and interethnic alienation that were palpable through the length and breadth of the country.

The due care with which the Minister of Defence must have exercised his wide powers in the greater good of the country was totally non-existent having regard to the evidence that has been placed before this Court. The consistent declaration of this Court that “Public Trust” doctrine is not a mere matter of contract bears particular repetition at this stage.

“We are not concerned with contractual rights, but with the safeguards based on the Rule of Law which Article 12 provides against the arbitrary and unreasonable exercise of discretionary powers. Discretionary powers can never be treated and unfettered unless there is compelling language; when reposed in public functionaries, such powers are held in trust, to be used for the benefit of the public, and for the purpose for which they have been conferred-not at the whim and fancy of officials, for political advantage or personal gain.