States of Emergency - Centre for Policy Alternatives

The judicial or quasi‐judicial control over the declaration of an
emergency is a distinct if related matter. There are two aspects to
this: (a) judicial control by domestic courts; and (b) control by
international treaty bodies such as the Human Rights Committee.
With regard to oversight by domestic courts there is divergence
between different countries, wherein countries such as South
Africa have unequivocally provided that all aspects of a state of
emergency, including its declaration, are comprehensively
susceptible to judicial review, 235 whereas others such as Sri Lanka
have expressly ousted judicial review in respect of the
declaration. 236
With regard to Article 4, the Human Rights Committee’s oversight
role over declarations, facilitated by the reporting mechanisms
established by the ICCPR (discussed in general terms in the
previous section), represents the international control mechanism
of that treaty. For many years, the Committee was restrained from
taking a more robust approach in this respect due to the
dominance of principles such as State sovereignty, which were
keenly defended particularly by countries belonging to the
socialist bloc. 237 However, the Committee seems now to be
adopting a more vigorous role. In General Comment No. 29, it
stated:
“Before a State moves to invoke article 4, two
fundamental conditions must be met: the situation must
amount to a public emergency which threatens the life of
the nation, and the State party must have ofLicially
235
Section 37 (3) of the South African Constitution
236
Article 154J (2) of the Sri Lankan Constitution
237
Oraá: p.49, fn.51
147