States of Emergency - Centre for Policy Alternatives

Firstly, the problem of the deLinition of what constitutes a state of
emergency discussed in the previous section, which facilitates
rather than imposes the necessary constraints on the act of
declaration.
Secondly, there is no attempt in the Sri Lankan law to ensure that
the power of declaration is not abused, or availed of too easily. The
principle of exceptional threat in Article 4 (1) of the ICCPR and
Section 37 (1) (b) of the South African constitution require that a
declaration of a state of emergency should be an act of last resort
once the normal measures are exhausted or inadequate, and then
only where it is necessary to restore peace and order. Indeed, in
Sri Lanka the opposite is the case where the exclusive discretion in
respect of proclamation is vested (with judicial approval) in the
President who is entitled to exercise that discretion according to
the dictates of his personal opinion, and without any statutory (or
judicial) circumscription of that broad discretion. The absence of a
constitutional or statutory requirement of necessity results not
only in the too‐frequent use of the power; it also means that there
is no consideration of the proportionality of a declaration to the
threat sought to be averted.
Thirdly, Section 3 of the PSO precludes judicial review of a
proclamation of a state of emergency. While this may have
accorded with notions of the separation of powers in the 1940s, it
has now certainly become an anomalous anachronism. Per
contra,
Section 37 (3) (a) of the South African constitution expressly
empowers any competent court to decide on the validity of a
declaration of a state of emergency.
Article 155 (5) of the constitution provides for the extension of a
state of emergency for a period of one month at a time, subject to
approval of Parliament by simple majority. Given that Parliament
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