States of Emergency - Centre for Policy Alternatives

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CHAPTER VI FUNDAMENTAL RIGHTS 6. Fundamental Rights 6.1. Chapter III: Sri Lanka’s Constitutional Bill of Rights 6.2. General Observations on Fundamental Rights Framework 6.2.1. Structure and Content 6.2.2. Judicial Protection of Fundamental Rights 6.2.3. Restrictions on Fundamental Rights: Limitations and Derogations 6.3. Restrictions on Fundamental Rights: International Standards 6.4. Sri Lanka’s International Obligations: ICCPR 6.4.1. The Singarasa Case (2006) and Sri Lanka’s International Obligations 6.4.2. The Supreme Court Advisory Opinion on the ICCPR (2008) 208
Certain civil and political rights, as are guaranteed by the Sri Lankan constitution are set out in Chapter III. Sri Lanka’s Lirst post‐independence constitution did not contain a bill of rights, apart from a general anti‐discrimination clause in Section 29. While the First Republican Constitution of 1972 did indeed contain a bill of fundamental rights, it has generally been accepted that it was a much weaker framework than that envisaged by the 1978 Constitution. Certain socio‐economic principles are enunciated in Chapter IV as ‘directive principles of State policy’, which neither create rights nor are justiciable. Sri Lanka acceded to the International Covenant on Civil and Political Rights in 1980 (including the Inter‐State Complaints Procedure), and its First Optional Protocol (Individual Complaints Procedure) in 1997. In November 2007, Parliament enacted the International Covenant on Civil and Political Rights (ICCPR) Act No.56 of 2007. Despite its title, however, this law is not aimed at the domestic recognition of the ICCPR as a whole. 6.1 Chapter III: Sri Lanka’s Constitutional Bill of Rights Basic democratic rights declared and recognised by Chapter III of the constitution include the right of freedom from torture or cruel, inhuman or degrading punishment (Article 11); freedom of thought, conscience and religion (Articles 10 and 14 (1) (e)); rights relating to the security and liberty of the person including freedom from arbitrary arrest, detention and punishment (Article 13); freedom of speech and expression including publication (Article 14 (1) (a)); freedom of peaceful assembly and association (Articles 14 (1) (b), (c) and (d)); freedom to enjoy and promote culture and language (Article 14 (1) (f)); freedom of movement and right of return (Article 14 (1) (h)); and freedom of lawful occupation (Article 14 (1) (g)). 209
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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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Covenant (e.g., articles 6 and 7).
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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
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Page 184 and 185: that of the person committing the a
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Page 202 and 203: Firstly, the problem of the deLinit
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Page 212 and 213: 6.2.1 Structure and Content V
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Page 218 and 219: Lilanthi  de Silva  v.  The
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Page 236 and 237: CHAPTER VI CONCLUSION “…unsee
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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
Page 256 and 257: 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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