States of Emergency - Centre for Policy Alternatives

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ebellion, the President is empowered to give the provincial Governors directions as to the manner in which the executive power exercisable by the Governor is to be exercised. Article 154K provides that where a Governor or any Provincial Council has failed to comply with any presidential directions, the President is entitled to hold that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the constitution. Article 154L provides that where the President is satisLied that the administration of a Province cannot be carried on in accordance with the constitution, he may by proclamation (a) assume to himself the powers and function vested in a Provincial Council or Governor and (b) declare that the powers of the Provincial Council shall be exercisable by Parliament. Article 154M provides that Parliament may confer the legislative power of the Provincial Council on the President. These provisions represent very broad powers for the centre to intervene in the devolved provincial sphere in a crisis. The broader debate about devolution is beyond the scope of the present discussion, but the Thirteenth Amendment framework is further evidence as to how regional autonomy can be countervailed when in conLlict with other policy of objectives that come into play during a crisis. While Sri Lanka is certainly not unique in this respect, 327 the danger of providing such wide unilateral powers to a single central authority of course is that the possibility of abuse is never far away. 327 See Chapter 3, section 3.1.3, supra 206
5.4.4  Checks and Balances The two traditional constitutional devices in this regard are judicial review and the separation of powers. It has already been noted how the provision of parliamentary oversight, while reLlective of compliance with international standards, has in practice been largely ineffective. While the Sri Lankan framework is riddled with ouster clauses, we have seen above how the courts have attempted to narrow down the scope of their preclusion from reviewing the exercise of emergency powers. The courts’ role in relation to the enforcement of fundamental rights is discussed more fully in the following chapter. However, it is submitted that excluding judicial review of the exercise of emergency powers is symptomatic of an approach that has now become obsolete, and that international best practice is reLlected in Section 37 (3) of the South African constitution, which allows judicial review of all aspects of an emergency including declaration, extension, and legislation. Moreover, introducing comprehensive judicial review must be accompanied by the reform of the substantive legal framework relating to fundamental rights by the inclusion of features such as the enumeration of non‐derogable rights and concepts of accountability such as necessity, proportionality, and consistency with international obligations; only then could the potential of judicial review be fully realised. 207
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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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advocacy role for its own views, wi
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The relevant State Party has an opp
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Nothing turns on the question wheth
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these rights. Derogation involves p
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ights under any circumstances, and
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population, to the territorial inte
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neither the ECHR nor the ACHR syste
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proclaimed a state of emergency. Th
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proportionate, in addition to confo
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elation to  the termination
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ut also the deeply conceptualised b
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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
Page 170 and 171: would entail a breach of the State
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 184 and 185: that of the person committing the a
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 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
Page 224 and 225: considerably diverge from, and in s
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
Page 232 and 233: own judgment in Singarasa reLlect
Page 234 and 235: legal assistance, interpreter and s
Page 236 and 237: CHAPTER VI CONCLUSION “…unsee
Page 238 and 239: certain commitments, and then actin
Page 240 and 241: TABLE OF CASES A  Publication
Page 242 and 243: Nagamani  Theivendran  v.  Th
Page 244 and 245: PROCLAMATIONS  AND EMERGENCY 
Page 246 and 247: Yala National Park Regulation 7 of
Page 248 and 249: Establishment of a new Department o
Page 250 and 251: BIBLIOGRAPHY A Bruce Ackerman (2004
Page 252 and 253: J.A.L. Cooray (1995) Constitutional
Page 254 and 255: 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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