States of Emergency - Centre for Policy Alternatives

higher threshold of justiLication as to the existence or imminence
of the actual emergency situation than is required by the Sri
Lankan law.
5.4.2
Declaration,
Extension
and
Termination
In the manner judicially interpreted, determining the imminence
or existence of the conditions described in Section 2 (1) is a
subjective matter of sole presidential discretion. However, courts
will review the exercise of powers that become operational
consequent to such a proclamation, in respect of promulgating
emergency regulations and administrative decisions, to determine
whether such regulations and decisions are intra
vires, bona
Kide,
have a rational nexus with the aims allowed by statute, and are
within with scope of the restrictions of fundamental rights
permitted by Article 15 of the constitution.
The Sri Lankan framework for declaration is thus consistent with
international standards to the extent that it requires a formal
proclamation, and thereby satisLies the principle of proclamation.
The principle of proclamation, by publicising the declaration of a
state of emergency, 324 is key to ensuring legality and the rule of
law by promoting access to and foreseeability of the emergency
measures to be taken. It, however, is outdated and inconsistent
with international standards in several respects.
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Section 2 (1) provides that the proclamation of a state of emergency is
to be published in the government Gazette, and Section 2 (7) requires that
notice of the approval of a proclamation by Parliament shall, as soon as
may be convenient, be published in the Gazette. The inaccessibility of the
Gazette to the general public is, of course, another matter.
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