States of Emergency - Centre for Policy Alternatives

ecognised in Article 15 may be validly imposed through
emergency regulations, is to be found in the unanimous judgment
of the Supreme Court delivered by Amerasinghe J. in Sunila
Abeysekera
 v.
 Ariya
 Rubesinghe
 (2000). 321 In this decision,
Amerasinghe J. considerably expanded the test of rational nexus
and the general concept of reasonableness by enunciating a tripartite
test of constitutionality for emergency regulations seeking
to restrict fundamental rights. The court explicitly based this test
on that established in the European Convention of Human Rights
which involves an exploration into whether restrictions are
prescribed by law, have a legitimate aim, and are necessary in a
democratic society. 322
Thus, in addition to the bare requirement of legality established by
the constitution, it would appear that the courts have now added
public law concepts such as necessity, rationality, reasonableness
and proportionality as procedural and substantive requirements
of justiLication expected of the executive in the exercise of
emergency powers where they restrict or inhibit fundamental
rights.
5.4
General
Observations
on
the
Constitutional
Framework
on
Emergencies
The preceding description of the general constitutional and
statutory framework governing states of emergencies, its judicial
interpretation, as well as the special counterterrorism legislation
321
Sunila
Abeysekara
v.
Ariya
Rubasinghe,
Competent
Authority,
and
Others
(2000) 1 SLR 314
322
See Asanga Welikala (2000) ‘The
Censorship
Case:
An
Immanent
Critique’,
Moot
Point, Vol.4 (Colombo: Centre for Policy Alternatives): p.8
198