States of Emergency - Centre for Policy Alternatives

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.
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