States of Emergency - Centre for Policy Alternatives

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.
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