States of Emergency - Centre for Policy Alternatives

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All three instruments contain a list of non‐derogable rights. 198 However, the Human Rights Committee has clearly stated that a State may not derogate from the obligation to protect a derogable right except without a high standard of justiLication, which will be subject to the Committee’s anxious scrutiny. It has also stated that even where a right may be derogable under the ICCPR, it may not in effect be derogable if it is part of the peremptory norms of international law. 199 Like in the national constitutional systems we considered before, the ICCPR and the regional regimes require an explicit declaration or proclamation of a state of emergency. While some national systems also extend this procedural safeguard by requiring public notice, notiLication has a prominent role in the international regimes. The ICCPR, the ECHR and the ACHR require notiLication of derogations to the relevant treaty bodies as well as to other state parties to the treaty (except the ECHR). They also require States to provide reasons for the derogation and to notify termination. In General Comment No. 29, the Human Rights Committee has stressed the importance of these procedural safeguards to ensure that States are not permitted excessive recourse to Article 4 ICCPR, so that emergencies must be ‘ofLicially proclaimed’, and that notiLication of derogation should “…include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding their law.” 200 198 Article 4 (2) ICCPR; Article15 (2) ECHR; Article 27 (2) ACHR 199 UN Human Rights Committee (2001) General Comment No. 29: States of Emergency (Article 4), CCPR/C/21/Rev.1/Add.11 (31 st August 2001): para.11; hereinafter General Comment No.29 200 Ibid, para.17 122
But as Gross and Ní Aoláin observe, “In theory, these [procedural] mechanisms are reasonably well equipped to cope with the inception of an emergency. Their fundamental weakness revolves, however, around the willingness of states to be constrained by such procedures, and the willingness of international (and domestic) judicial and quasi‐judicial bodies to enforce them robustly at the preliminary juncture.” 201 The validity of these observations are borne out by the Sri Lankan experience. The domestic judicial attitude as represented by the Supreme Court to co‐operating with the treaty regime and enforcing the ICCPR, especially in relation to the First Optional Protocol has been one of outright hostility. In this context, the issue of enforcement of the ICCPR within the jurisdiction of Sri Lanka becomes an issue, which we discuss below. 202 All three systems impose the principle of proportionality in respect of any derogating measure, as well as consistency with other international obligations. The purpose of proportionality is to ensure that a clear necessity for extraordinary measures restricting fundamental rights is established. In General Comment No. 29, the Human Rights Committee goes even further to state 201 Gross and Ní Aoláin: p.261 202 The issue has come to a head in the debate about the renewal of the ‘GSP Plus’ tariff beneLits scheme of the European Union for Sri Lanka, which requires ‘ratiLication and full implementation’ by the beneLiciary country of 27 international treaties including the ICCPR: see Centre for Policy Alternatives (2007) ‘Press Release on the Draft Bill Purporting to  enact the International Covenant on Civil and Political Rights (ICCPR)’, 3 rd October 2007; Rohan Edrisinha & Asanga Welikala (2008) ‘GSP Plus’  BeneKits: The Need for Constitutional Amendment’ available at http:// www.cpalanka.org/Newspaper_Articles/Article_on_ICCPR.pdf; Rohan Edrisinha & Asanga Welikala (2008) ‘GSP Plus and Constitutional Reform:  What We Did and Did Not Say’, The Sunday Island, 26 th June 2008; discussion in Chapter 6, infra 123
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A State of Permanent Crisis Constit
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This book is dedicated to J.S. Tiss
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3.   The Neo‐Roman Cons
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6. Fundamental Rights  ....
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security has been prioritised and t
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The year 2008 also marks the twenty
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nationalist political ideology (mir
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Needless to say, responsibility for
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those who believe in the democratic
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the exception discussed below. None
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independence or capacity to ensure
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einterpretation of its constitution
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issues from comparative experience
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PART I  The Theory and Practice
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In their recent comprehensive study
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in the process, destroy democracy.
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appointment of a dictator according
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dictator. 15 The dictator enjoyed a
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was the cultural and political etho
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siege is therefore a legal institut
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In Dicey’s view, the idea of mart
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diminish, the acknowledged prerogat
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Legislative Accommodation One of
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judges to resolve competing claims
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other vastly disparate contextual r
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than undermine, the rule of law in
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Carl  Schmitt:  Sovereign  Di
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Schmitt thought that, “…liberal
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The centrepiece of Schmitt’s mode
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exception has been declared by the
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CHAPTER III THE NEO‐ROMAN C
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3.1  Comparative  Experience:
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of emergency. It is true that the d
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emergency’. 87 The former remains
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Page 84 and 85: However, the signiLicance of this p
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Page 110 and 111: CHAPTER IV STANDARDS GOVERNING
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Page 140 and 141: these rights. Derogation involves p
Page 142 and 143: ights under any circumstances, and
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Page 148 and 149: proclaimed a state of emergency. Th
Page 150 and 151: proportionate, in addition to confo
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PART II  The Sri Lankan Experie
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CHAPTER V SRI  LANKA’S  CON
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emergency without having to look ov
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A state of emergency is brought int
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Chapter XVIII was predicated on the
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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
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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
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struck down a detention order after
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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
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CHAPTER VI CONCLUSION “…unsee
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certain commitments, and then actin
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TABLE OF CASES A  Publication
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Nagamani  Theivendran  v.  Th
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PROCLAMATIONS  AND EMERGENCY 
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Yala National Park Regulation 7 of
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Establishment of a new Department o
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BIBLIOGRAPHY A Bruce Ackerman (2004
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J.A.L. Cooray (1995) Constitutional
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European Commission for Democracy t
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Oren Gross and Fionnuala Ní Aolái
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K Robert N. Kearney (1971) Trade 
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Herbert Marx (1970) ‘The  Emerg
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Eugene V. Rostow (1945) ‘The Ja
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UN Special Rapporteur on the Indepe
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