States of Emergency - Centre for Policy Alternatives

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CHAPTER V SRI  LANKA’S  CONSTITUTIONAL  AND  LEGAL  FRAMEWORK  REGARDING  STATES  OF  EMERGENCY 5. Sri Lanka’s Constitutional and Legal Framework regarding States of Emergency 5.1. The Constitutional and Statutory Framework: Chapter XVIII and the PSO 5.1.1. Emergency Regulations 5.2. Special Anti‐Terrorism Powers: The PTA 5.3. Judicial Review of States of Emergency 5.4. General Observations on Constitutional Framework on Emergencies 5.4.1. The DeLinition of ‘State of Public Emergency’ 5.4.2. Declaration, Extension and Termination 5.4.3. Legal Effects 5.4.4. Checks and Balances 174
The framers of the Second Republican Constitution of 1978 clearly perceived the declaration and the conduct of government in a state of emergency to be purely political and administrative matters; primarily the prerogative or right of the executive and to the extent oversight was contemplated, they vested Parliament with that responsibility. Whether this was driven purely on considerations of executive convenience or whether it was symptomatic of an underlying tendency to authoritarianism is a moot point. 270 More palpable is the fact that those involved in the making of this particular constitutional scheme shared a political and legal philosophy that drew copiously from Dicey and Austin: in other words, imperial‐era British legal doctrines about omnicompetence, plenary power, strong government, and commandtheory positivism. This is why perhaps a recent commentator – with distinct overtones of the Diceyan conception of martial law and the common law doctrine of necessity – felt able to make the extraordinary assertion that: “The subject of public security itself has been located within the constitution in chapter XVIII. By subjecting this area to the constitution the framers of the constitution have indicated that there is a natural aversion for the use of this subject for political and personal ends. The executive power of the land is free to declare an 270 See Parliamentary Series No.14 of the Second National State Assembly (1978) Report of the Select Committee of the National State Assembly  appointed to consider the revision of the Constitution, 22 nd June 1978: p. 141; Dissenting Report of the Members of the Sri Lanka Freedom Party: p. 149; Draft Article 149 on Public Security: p.602. See also A.J. Wilson (1980) The Gaullist System in Asia: The Constitution of Sri Lanka  (1978) (London: Macmillan): pp.54‐56; The ‘architect’ of the 1978 Constitution, President J.R. Jayewardene, Lirst articulated his case for a presidential executive in December 1966, in a speech to the Ceylon Association for the Advancement of Science, cited in Wilson (1980), op cit., p.1. 175
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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
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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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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
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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
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Page 156 and 157: Covenant (e.g., articles 6 and 7).
Page 158 and 159: Statute of the International Crimin
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Page 168 and 169: The only occasion in which the Huma
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Page 172 and 173: PART II  The Sri Lankan Experie
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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
Page 192 and 193: question whether executive law‐ma
Page 194 and 195: merits as well as the statement of
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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
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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
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Page 218 and 219: Lilanthi  de Silva  v.  The
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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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