States of Emergency - Centre for Policy Alternatives

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A state of emergency is brought into being by Proclamation made by the President, 273 which brings into operation the provisions of the Public Security Ordinance as amended. 274 This includes the power to make emergency regulations by the President having the legal effect of overriding, amending or suspending the provisions of any law except the constitution. 275 The same applies to statutes of Provincial Councils, which may be overridden, amended or suspended by emergency regulations. 276 The sole discretion in issuing a Proclamation declaring a state of emergency is vested in the President, but which must be forthwith communicated to Parliament. 277 The Proclamation is at Lirst instance valid for a period of fourteen days and any continuation in force is subject to the approval of Parliament. 278 If Parliament does not approve a Proclamation made under Article 155 (3), the declaration of emergency immediately ceases to be valid or of any force in law (but without prejudice to anything lawfully done thereunder). 279 The Chapter sets out detailed rules as to how the approval of Parliament is to be obtained including provision for its immediate summoning if it stands adjourned, prorogued or dissolved. Subject 273 Article 155 (3) 274 Article 155 (1) 275 Article 155 (2) 276 Article 155 (3A) introduced by the Thirteenth Amendment to the Constitution (1987) 277 Article 155 (4) 278 Article 155 (6) 279 Article 155 (8) 178
to parliamentary approval, a Proclamation of a state of emergency operates for a period of one month, and may be further extended by one month at a time, although it may be revoked earlier. 280 Before their repeal by the Tenth Amendment to the Constitution in 1986, the original paragraphs (8) and (9) of Article 155 provided that where a state of emergency has been in operation for a period of ninety consecutive days, or ninety days in aggregate within a period of six months, a resolution passed by a majority of twothirds of members was required for a valid parliamentary approval of the continuing state of emergency. This safeguard is no longer available. There was no provision for judicial oversight or review over the declaration or anything done in good faith under a state of emergency in Chapter XVIII, which makes Parliament the sole oversight and control mechanism of the executive during an emergency. However, Article 154J (2), which was introduced by the Thirteenth Amendment to the Constitution (1987), seeks to prohibit judicial review in respect of the making of the Proclamation. Some commentators have suggested that this was a response by the government to the Supreme Court’s decision in Joseph  Perera  v.  Attorney  General (1992) 281 where the Court narrowed down the ouster clause in the PSO in respect of the promulgation of emergency regulations, and for the Lirst time, struck down an emergency regulation as unconstitutional. 282 280 Article 155 (5) 281 Joseph Perera v. Attorney General (1992) 1 SLR 199 (decided in March 1987, eight months before the enactment of the Thirteenth Amendment in November 1987) 282 Radhika Coomaraswamy & Charmaine de los Reyes (2004) ‘Rule by  Emergency: Sri Lanka’s Postcolonial Constitutional Experience’ I.CON, Vol.2, No.2, 272 at p.287 179
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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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that it would “…take a State pa
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‘views’ are dependent on the at
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Page 132 and 133: has also issued guidelines regardin
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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
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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
Page 174 and 175: CHAPTER V SRI  LANKA’S  CON
Page 176 and 177: emergency without having to look ov
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 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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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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