States of Emergency - Centre for Policy Alternatives

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that of the person committing the act), or (g) creating a serious risk to public health and safety, or (h) is designed to interfere with or disrupt an electronic system; and which is aimed at (a) endangering the sovereignty and territorial integrity of Sri Lanka or any other recognised sovereign State, or (b) any other political or governmental change, or (c) compelling the government of Sri Lanka to do or abstain from doing any act, and includes any other unlawful activity which advocates or propagates such unlawful conduct. ‘SpeciLied terrorist activity’ is deLined as any offence speciLied in the PTA, the PSO, Section 3 of the Prevention of Money Laundering Act No. 5 of 2006, Section 3 of the Convention on the Suppression of Terrorist Financing Act No. 25 of 2005, and any offence under Sections 114, 115, 116, 117, 121, 122, 128, 129 of the Penal Code. On the face of the text, the wide, overbroad language of these regulations could lend themselves to abuse, in that, in addition to dealing with activities that the State could legitimately restrain or prohibit in the interests of national security and the suppression of terrorism, they could also serve to curtail legitimate democratic activity and fundamental freedoms, dissent and the autonomy of civil society. In particular the wide range of activities prohibited by Regulation 6, 7 and 8, the deLinition of terrorism in Regulation 20 and the immunity clause, Regulation 19. These provisions are overbroad, drafted in very wide language, and where offences have not expressly been established, they allow for the possible criminalisation of a range of legitimate activities of civil society, and could violate constitutionally protected fundamental rights. 184
It is a cardinal principle of Sri Lankan criminal law 290 and international human rights law 291 that laws creating criminal liability must be framed in clear and precise language. The principle of legality in criminal liability would be infringed if people cannot easily understand the nature of the offence, and if they cannot with sufLicient certainty anticipate what conduct would lead to liability. Under international law, this requirement must be respected even in emergency law‐making in a crisis context of armed conLlict. 292 Vague, ambiguous and unclear legal deLinitions clearly contravene international law. 293 Vague, ambiguous or overbroad language may also fall foul of the constitutional requirements upheld by the Supreme Court, where emergency regulations operate to restrict or abridge fundamental rights. 294 The ‘transaction clause’, Regulation 8, is particularly repugnant to the principle of legality. It is formulated in such a way that virtually any act of, for example, journalists, civil society organisations and even private landlords, can give rise to potential criminal liability. These are strict liability offences and there is no 290 G.L. Peiris (1999) General Principles of Criminal Liability in Sri  Lanka (Colombo: Stamford Lake): Ch.13 291 See e.g. ICCPR Article 4 (2); ECHR Article 15; ACHR Article 27. See also UN Human Rights Committee, General Comment No. 29, para.7 292 Ibid 293 UN Special Rapporteur on the Independence of Judges and Lawyers (1998) UN Doc. E/CN.4/1998/39/Add.1, para.129 294 See Joseph Perera v. Attorney General (1992) 1 SLR 199; Sunila  Abeysekara v. Ariya Rubasinghe, Competent Authority, and Others (2000) 1 SLR 314 185
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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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has also issued guidelines regardin
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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
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Page 164 and 165: The Human Rights Committee has repe
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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 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 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
Page 220 and 221: provided for by the ICCPR Article 4
Page 222 and 223: suppressing opposition aimed at suc
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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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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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