States of Emergency - Centre for Policy Alternatives

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would entail a breach of the State’s other international obligations, whether based on treaty or general international law. This is reLlected also in article 5, paragraph 2, of the Covenant according to which there shall be no restriction upon or derogation from any fundamental rights recognised in other instruments on the pretext that the Covenant does not recognise such rights or that it recognises them to a lesser extent.” 268 While it would seem ex facie that the principle of consistency has very broad application, by enabling the Human Rights Committee to pronounce on States’ compliance with other international obligations under treaty or customary international law, it should be noted that in fact, the scope of the principle is circumscribed by the requirement that a derogation under Article 4 must Lirst be admitted for the principle to apply at all. Therefore, other international obligations cannot be implemented through the principle of consistency in Article 4. However, General Comment No. 29 contains the following advice: “Although it is not the function of the Human Rights Committee to review the conduct of a State party under other treaties, in exercising its functions under the Covenant the Committee has the competence to take a State party’s other international obligations into account when it considers whether the Covenant allows the State party to derogate from specific provisions of the Covenant. Therefore, when invoking article 4, paragraph 1, or when reporting under article 40 on the legal framework related to emergencies, States parties should present information on their other international obligations relevant for the protection of the rights in question, in particular those obligations that are applicable in times of emergency. In 268 para.9 170
this respect, States parties should duly take into account the developments within international law as to human rights standards applicable in emergency situations.” 269 269 para.10 171
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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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to the thoughts, feelings, and ener
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executive in favour of the latter,
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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
Page 120 and 121: were the result of an initiative by
Page 122 and 123: All three instruments contain a lis
Page 124 and 125: that it would “…take a State pa
Page 126 and 127: ‘views’ are dependent on the at
Page 128 and 129: terms, but also that it provides fo
Page 130 and 131: incomplete reports. Perhaps unsurpr
Page 132 and 133: has also issued guidelines regardin
Page 134 and 135: advocacy role for its own views, wi
Page 136 and 137: The relevant State Party has an opp
Page 138 and 139: Nothing turns on the question wheth
Page 140 and 141: these rights. Derogation involves p
Page 142 and 143: ights under any circumstances, and
Page 144 and 145: population, to the territorial inte
Page 146 and 147: neither the ECHR nor the ACHR syste
Page 148 and 149: proclaimed a state of emergency. Th
Page 150 and 151: proportionate, in addition to confo
Page 152 and 153: elation to  the termination
Page 154 and 155: ut also the deeply conceptualised b
Page 156 and 157: Covenant (e.g., articles 6 and 7).
Page 158 and 159: Statute of the International Crimin
Page 160 and 161: derogability.  Even  in  time
Page 162 and 163: national security, and the protecti
Page 164 and 165: The Human Rights Committee has repe
Page 166 and 167: equires that States parties provide
Page 168 and 169: The only occasion in which the Huma
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
Page 186 and 187: mens  rea  requirement for any
Page 188 and 189: extraordinary powers to the executi
Page 190 and 191: of almost every human rights norm 2
Page 192 and 193: question whether executive law‐ma
Page 194 and 195: 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
Page 200 and 201: its underlying policy and motivatio
Page 202 and 203: Firstly, the problem of the deLinit
Page 204 and 205: extension requires a special majori
Page 206 and 207: ebellion, the President is empowere
Page 208 and 209: CHAPTER VI FUNDAMENTAL RIGHTS 6
Page 210 and 211: Permissible restrictions on these r
Page 212 and 213: 6.2.1 Structure and Content V
Page 214 and 215: eLlection of the high importance ac
Page 216 and 217: unduly conservative and restrictive
Page 218 and 219: 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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