States of Emergency - Centre for Policy Alternatives

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Preface In May and June 1958, in Ceylon, occurred what were up till then the most serious communal riots in Sri Lanka’s troubled history of ethnic relations. In retrospect, the events of 1958 were mere portents of the horrors that were to come. A contemporaneous journalistic account of what happened was written by Tarzie Vittachi, editor of Asia’s oldest newspaper, the Ceylon Observer, satirical columnist, and intrepid political commentator. In the context of the blanket censorship imposed under Sri Lanka’s Lirst post‐independence experience of emergency rule, the manuscript was published in London under the title Emergency ’58 by Andre Deutsch, in what has now become a classic of Sri Lankan political literature. The book was banned in Ceylon, and Tarzie Vittachi subsequently left the country, under the cloud of death threats. From a strictly dispassionate academic viewpoint, Vittachi’s account is no doubt coloured by his sense of outrage and despair at the communal bestiality that was unleashed, the initially dilatory and subsequently disproportionate response of the State, and the comprehensive failure of democratic political leadership in 1958. However, both the circumstances of the emergency in 1958 and Vittachi’s response to it are of enduring signiLicance. Amidst a conLlagration of ethnic hatred, banal violence and mass nationalist hysteria, Vittachi’s was a lone voice of reason, of moral decency and the courage of deeply held liberal democratic convictions. It is half a century since the watershed of 1958, and a tribute to Vittachi’s prescience then is also a parable of the tragedy of ethnic fratricide in Sri Lanka, where his admonitions continue to go unheeded. 10
The year 2008 also marks the twenty‐Lifth anniversary of the infamy of Black July 1983, which without doubt epitomises the darkest moment in the contemporary history of Sri Lanka. The unspeakable tragedy of this pogrom, a kind of social delirium tremens that afLlicted our society for a few days, and in which we took leave of both our senses and our morality, requires no retelling. It transmogriLied our society, and changed the trajectory of its historical evolution onto a path that ensured, and promises, suppurating conLlict for years. Coincidentally, 2008 is the thirtieth year of the Second Republican Constitution of 1978. The legislature, then named the National State Assembly, formally adopted the constitution on 17 th August 1978, which was certiLied on 31 st August. In terms of Article 172, the constitution was brought into force on 7 th September 1978 by Proclamation of the President. Virtually for the entirety of the period since then, constitutionally unresolved ethno‐political tensions have engulfed Sri Lanka in a violent civil war. One of the deLining characteristics of this war has been its lawless nature. Both the State, and over time its principal protagonist, the Liberation Tigers of Tamil Eelam (LTTE) have been less than solicitous about internationally established basic norms of armed conLlict, especially those concerning international human rights and humanitarian standards in respect of civilians. Any attention that has in fact been paid to these by the armed adversaries, has been due to international exposure and fear of censure. The consequences have been borne by civilians, primarily those living in the North and East. ConLlict in Sri Lanka has also emanated from within the South. Both of the Janatha Vimukthi Peramuna (JVP)’s failed insurrections resulted in massive human rights violations, again perpetrated by both insurgents and the 11
Page 1 and 2: A State of Permanent Crisis Constit
Page 3 and 4: This book is dedicated to J.S. Tiss
Page 5 and 6: 3.   The Neo‐Roman Cons
Page 7 and 8: 6. Fundamental Rights  ....
Page 9: security has been prioritised and t
Page 13 and 14: nationalist political ideology (mir
Page 15 and 16: Needless to say, responsibility for
Page 17 and 18: those who believe in the democratic
Page 19 and 20: the exception discussed below. None
Page 21 and 22: independence or capacity to ensure
Page 23 and 24: einterpretation of its constitution
Page 25 and 26: issues from comparative experience
Page 28: PART I  The Theory and Practice
Page 31 and 32: In their recent comprehensive study
Page 33 and 34: in the process, destroy democracy.
Page 35 and 36: appointment of a dictator according
Page 37 and 38: dictator. 15 The dictator enjoyed a
Page 39 and 40: was the cultural and political etho
Page 41 and 42: siege is therefore a legal institut
Page 43 and 44: In Dicey’s view, the idea of mart
Page 45 and 46: diminish, the acknowledged prerogat
Page 47 and 48: Legislative Accommodation One of
Page 49 and 50: judges to resolve competing claims
Page 51 and 52: other vastly disparate contextual r
Page 53 and 54: than undermine, the rule of law in
Page 55 and 56: Carl  Schmitt:  Sovereign  Di
Page 57 and 58: Schmitt thought that, “…liberal
Page 59 and 60: The centrepiece of Schmitt’s mode
Page 61 and 62:
exception has been declared by the
Page 64 and 65:
CHAPTER III THE NEO‐ROMAN C
Page 66 and 67:
3.1  Comparative  Experience:
Page 68 and 69:
of emergency. It is true that the d
Page 70 and 71:
emergency’. 87 The former remains
Page 72 and 73:
legislation for the peace, order an
Page 74 and 75:
the problem of deLinition plagues t
Page 76 and 77:
to undertake, these jurisdictions m
Page 78 and 79:
whereby each successive extension o
Page 80 and 81:
may override ordinary statutes. As
Page 82 and 83:
natural disasters, and a negative l
Page 84 and 85:
However, the signiLicance of this p
Page 86 and 87:
demonstrate this. 137 Other federat
Page 88 and 89:
two classic constitutional devices
Page 90 and 91:
may be curbed by the judiciary.”
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each department the necessary const
Page 94 and 95:
normative expectations of the accom
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proved able, or indeed willing, to
Page 98 and 99:
executive powers, and indeed tolera
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so clearly and blatantly transgress
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conLlict, but the character of the
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who use them to attack or undermine
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to the thoughts, feelings, and ener
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executive in favour of the latter,
Page 110 and 111:
CHAPTER IV STANDARDS GOVERNING
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The past Live decades - the post Wo
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adaptation in human rights law of t
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interpreting these provisions. Subs
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interpreted this to mean “…a si
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were the result of an initiative by
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All three instruments contain a lis
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that it would “…take a State pa
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‘views’ are dependent on the at
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terms, but also that it provides fo
Page 130 and 131:
incomplete reports. Perhaps unsurpr
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has also issued guidelines regardin
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advocacy role for its own views, wi
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The relevant State Party has an opp
Page 138 and 139:
Nothing turns on the question wheth
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these rights. Derogation involves p
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ights under any circumstances, and
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population, to the territorial inte
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neither the ECHR nor the ACHR syste
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proclaimed a state of emergency. Th
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proportionate, in addition to confo
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elation to  the termination
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ut also the deeply conceptualised b
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Covenant (e.g., articles 6 and 7).
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Statute of the International Crimin
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derogability.  Even  in  time
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national security, and the protecti
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The Human Rights Committee has repe
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equires that States parties provide
Page 168 and 169:
The only occasion in which the Huma
Page 170 and 171:
would entail a breach of the State
Page 172 and 173:
PART II  The Sri Lankan Experie
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CHAPTER V SRI  LANKA’S  CON
Page 176 and 177:
emergency without having to look ov
Page 178 and 179:
A state of emergency is brought int
Page 180 and 181:
Chapter XVIII was predicated on the
Page 182 and 183:
Regulations No. 1 of 2005 286 and E
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that of the person committing the a
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mens  rea  requirement for any
Page 188 and 189:
extraordinary powers to the executi
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of almost every human rights norm 2
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question whether executive law‐ma
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merits as well as the statement of
Page 196 and 197:
struck down a detention order after
Page 198 and 199:
ecognised in Article 15 may be vali
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its underlying policy and motivatio
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Firstly, the problem of the deLinit
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extension requires a special majori
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ebellion, the President is empowere
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CHAPTER VI FUNDAMENTAL RIGHTS 6
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Permissible restrictions on these r
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6.2.1 Structure and Content V
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eLlection of the high importance ac
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unduly conservative and restrictive
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Lilanthi  de Silva  v.  The
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provided for by the ICCPR Article 4
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suppressing opposition aimed at suc
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considerably diverge from, and in s
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The court’s reasoning with regard
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embrace judicial activism, in not o
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With regard to the Linding of uncon
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own judgment in Singarasa reLlect
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legal assistance, interpreter and s
Page 236 and 237:
CHAPTER VI CONCLUSION “…unsee
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certain commitments, and then actin
Page 240 and 241:
TABLE OF CASES A  Publication
Page 242 and 243:
Nagamani  Theivendran  v.  Th
Page 244 and 245:
PROCLAMATIONS  AND EMERGENCY 
Page 246 and 247:
Yala National Park Regulation 7 of
Page 248 and 249:
Establishment of a new Department o
Page 250 and 251:
BIBLIOGRAPHY A Bruce Ackerman (2004
Page 252 and 253:
J.A.L. Cooray (1995) Constitutional
Page 254 and 255:
European Commission for Democracy t
Page 256 and 257:
Oren Gross and Fionnuala Ní Aolái
Page 258 and 259:
K Robert N. Kearney (1971) Trade 
Page 260 and 261:
Herbert Marx (1970) ‘The  Emerg
Page 262 and 263:
Eugene V. Rostow (1945) ‘The Ja
Page 264 and 265:
UN Special Rapporteur on the Indepe
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