States of Emergency - Centre for Policy Alternatives

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Covenant (e.g., articles 6 and 7). However, it is apparent that some other provisions of the Covenant were included in the list of non‐derogable provisions because it can never become necessary to derogate from these rights during a state of emergency (e.g., articles 11 and 18). Furthermore, the category of peremptory norms extends beyond the list of non‐derogable provisions as given in article 4, paragraph 2. States parties may in no circumstances invoke article 4 of the Covenant as justiLication for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.” 250 It is obvious that there is little meaning in classifying rights as fundamental and non‐derogable, if provision is also not made for their enjoyment. In this respect, speciLically important considerations are that they should be enforceable through the availability of an effective remedy, and that they should be enjoyed without discrimination. In the logic of the scheme of the ICCPR, therefore, during a state of emergency these two principles also become non‐derogable in their application to those rights expressly entrenched as non‐derogable. Thus, a State cannot deny an effective remedy against the violation of non‐derogable rights, and a State cannot in fact discriminate in the enforcement or application of non‐derogable rights, on the pretext that it cannot in law derogate from those rights. 251 250 para.11 251 General Comment No. 29 afLirms the right to an effective remedy in paras.14, 15 and 16, and the principle of non‐derogation in para.8 156
The second type of principle established by the ICCPR, which is by implication non‐derogable although not expressly set out in Article 4 (2), are those provided for in Article 5. Article 5 (1) prevents any State Party, group or person from engaging in any activity aimed at the destruction of any right recognised by the ICCPR, or limiting any right to a greater extent than is provided for in the ICCPR. Article 5 (2) also contains the prohibition on using any provision of the ICCPR as a pretext for limiting or derogating from human rights that are guaranteed, by either municipal law or other treaty, to a greater extent than the ICCPR. Implicit is also the principle that permitted restrictions cannot be used for any other purpose than the one prescribed by the ICCPR. Thirdly, the provisions relating to the implementation machinery are also deemed to be non‐derogable. As we have seen, the ICCPR implementation machinery, with their dependence on State Party co‐operation, may seem weak enough. But to allow States to derogate from those provisions citing a state of emergency would be to totally defeat the checks and oversight provided by these mechanisms. Thus, it is essential to the scheme of the ICCPR that these provisions be regarded as non‐derogable. The current practice of the Human Rights Committee devotes serious attention to the principle of non‐derogation, its scope, nature and application. In addition to the three areas considered above, General Comment No. 29, has now added a plethora of other principles and rights of international law that it would consider to be non‐derogable. BrieLly, these are (not being a conclusive list): • Crimes against humanity (para.12, and for jurisdictional purposes the Committee would take into account the Rome 157
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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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legislation for the peace, order an
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the problem of deLinition plagues t
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to undertake, these jurisdictions m
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whereby each successive extension o
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may override ordinary statutes. As
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natural disasters, and a negative l
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However, the signiLicance of this p
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demonstrate this. 137 Other federat
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two classic constitutional devices
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may be curbed by the judiciary.”
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each department the necessary const
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normative expectations of the accom
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proved able, or indeed willing, to
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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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Page 110 and 111: CHAPTER IV STANDARDS GOVERNING
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Page 122 and 123: All three instruments contain a lis
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Page 130 and 131: incomplete reports. Perhaps unsurpr
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Page 138 and 139: Nothing turns on the question wheth
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Page 142 and 143: ights under any circumstances, and
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Page 148 and 149: proclaimed a state of emergency. Th
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Page 172 and 173: PART II  The Sri Lankan Experie
Page 174 and 175: 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
Page 184 and 185: that of the person committing the a
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Page 190 and 191: of almost every human rights norm 2
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Page 200 and 201: its underlying policy and motivatio
Page 202 and 203: Firstly, the problem of the deLinit
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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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