States of Emergency - Centre for Policy Alternatives

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Regulations No. 1 of 2005 286 and Emergency (Prevention and Prohibition of Terrorism and SpeciLied Terrorist Activities) Regulations No. 7 of 2006 287 are of particular signiLicance, especially the latter. Both sets of regulations were promulgated in the wake of acts of terrorism: the assassination of Foreign Minister Lakshman Kadirgamar in August 2005 and the attempted assassination of Defence Secretary Gotabhaya Rajapakse in December 2006. Both sets of regulations give rise to serious concerns as to whether they represent an appropriate balance between legitimate national security and public order considerations, on the one hand, and rule of law and legality principles and fundamental human rights, on the other. The 2005 regulations deal with powers of arrest, detention, search and seizure, trial procedure, evidence and admissibility of confession, and various other amendments to ordinary criminal procedure. 288 The 2006 regulations seek to deLine ‘terrorism’ and ‘speciLied terrorist activity’ and to create offences in relation to terrorism and terrorist activities, in particular offences regarding ‘transactions’ with a terrorist group and information relating to terrorism and terrorist activities. Regulation 6 of the 2006 regulations provides that no person or group, including an organisation, shall either individually, as a group, or through other persons engage in (a) terrorism, (b) any 286 Gazette Extraordinary No. 1405/5 of 13 th August 2005 287 Gazette Extraordinary No. 1474/5 of 6 th December 2006 288 Extensive commentary on the impact of these regulations on fundamental rights and their consistency with international standards in the International Commission of Jurists (2008) BrieZing Paper: Sri  Lanka’s Emergency Laws and International Standards, June 2008 (forthcoming publication) 182
speciLied terrorist activity, or (c) any activity in furtherance of (a) or (b). Regulation 7 provides that no person shall, inter  alia, promote, encourage, support, advise, assist or act on behalf of any person or group that is engaged in terrorism or speciLied terrorist activity. Regulation 8 is an unusual provision which provides that no person shall engage in any ‘transaction’ deLined in very wide terms with a person or group acting in contravention of Regulations 6 and 7. However, in the Lirst proviso to Regulation 8, it is provided that ‘for the purposes of facilitating the development of a peaceful political solution, termination of terrorism… maintenance of supplies and services essential to the life of the community, conducting developmental activities, or for any other lawful purpose’ any person including local and international NGOs could in good faith and the written approval of the Competent Authority, 289 engage in any ‘approved transaction’ with persons or groups acting in contravention of Regulations 6 or 7. Moreover, Regulation 9 prohibits the provision of ‘any information which is detrimental or prejudicial to national security’ to any person or group. Regulation 20 deLines ‘terrorism’ as any unlawful conduct which (a) involves the use of violence, force, coercion, intimidation, threats, duress, or (b) threatens or endangers national security, or (c) intimidates a civilian population, or (d) disrupts or threatens public order and the maintenance of supplies and services essential to the life of the community, or (e) causes destruction or damage to property, or (f) endangering a person’s life (other than 289 The Competent Authority is appointed by the President in terms of Regulations 15 and 16. Regulation 17 provides that any person aggrieved by a decision of the Competent Authority is entitled to appeal to the Appeals Tribunal constituted under Regulation 18, which comprises of the Secretaries to the Ministries of Defence, Finance, Nation‐Building, Plan Implementation and Justice. 183
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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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terms, but also that it provides fo
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incomplete reports. Perhaps unsurpr
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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
Page 152 and 153: elation to  the termination
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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 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 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
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Page 218 and 219: Lilanthi  de Silva  v.  The
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Page 226 and 227: The court’s reasoning with regard
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Page 230 and 231: 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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