States of Emergency - Centre for Policy Alternatives

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indeed, ambiguous social subscription to liberal democratic values. In Sri Lanka, moreover, while the constitutional and legal framework relating to emergency powers superLicially resemble that of a constitutional and democratic order, the culture and practice of these powers relate a different story in respect of the legality of ofLicial conduct and of the protection of fundamental rights. Therefore, a proper understanding of Sri Lankan states of emergency must look beyond textual provisions and their judicial interpretation to the more politically sentient cultures and attitudes that inform the exercise of governmental authority. It has also been the case that even the institutional safeguards envisaged by the constitution have been rendered nugatory by the failure of parliamentary review over executive action, both procedurally and in terms of substantive rule‐making. Likewise, both the independence and the capacity of the law enforcement apparatus of the State, including the police, the Attorney General’s Department and the judiciary, are once again becoming a matter of international concern. The Supreme Court as the constitutional guarantor of fundamental rights has had a mixed record. It has been a relatively robust defender of fundamental rights in the past, although the tenor of its jurisprudence has not always corresponded with international trends and standards. More recently, however, the Supreme Court has been responsible, inter  alia, for a shocking retreat from Sri Lanka’s international obligations under the International Covenant on Civil and Political Rights and its enforcement framework under the First Optional Protocol. Other mechanisms such as the national Human Rights Commission have become wholly ineffectual in dealing with challenges on the ground. There is very little conLidence that the institutions of the State are possessed of the necessary will, 20
independence or capacity to ensure the protection of the human rights of its citizens against abuse of emergency powers in the context of escalating conLlict. All of these factors coalesce into what is now an executive praxis and culture that is deeply problematic from the perspective of conLining executive authority within constitutional and statutory limits as well as fundamental rights protection. The prevailing ethos is one in which violations of fundamental rights are widespread, and which is compounded by the re‐emergence of a pervasive culture of impunity. The political backdrop of these developments is the current government’s policy and perspective regarding the resolution of the ethnic conLlict, which is in essence a counter‐insurgency approach, and the manner of its execution since 2005. The reason for disquiet about recent events is that in the pursuit of this strategy, the commitment of the government to protecting fundamental rights and the rule of law appear neither clear nor unequivocal. This is evinced by consistent ofLicial rhetoric that places national security considerations over and above democratic values, and policy decisions and executive action that directly violate human rights. There is a perception that the effectiveness and utility of ofLicial responses by the government to civil society and international pressure on these counts (for example the appointment of the Presidential Commission of Inquiry into human rights violations (CoI) and the International Independent Group of Eminent Persons (IIGEP), and the acrimonious exit of the latter) are compromised by cynicism, indifference and insincerity. This is exacerbated by the lawless perception created by the operation of security and intelligence apparatuses as well as their paramilitary associates in an unregulated and secretive extra‐legal sphere. The consequential atmosphere, in the context of high proLile violations such as abductions, beatings and torture, extra‐judicial executions, 21
Page 1 and 2: A State of Permanent Crisis Constit
Page 3 and 4: This book is dedicated to J.S. Tiss
Page 5 and 6: 3.   The Neo‐Roman Cons
Page 7 and 8: 6. Fundamental Rights  ....
Page 9 and 10: security has been prioritised and t
Page 11 and 12: The year 2008 also marks the twenty
Page 13 and 14: nationalist political ideology (mir
Page 15 and 16: Needless to say, responsibility for
Page 17 and 18: those who believe in the democratic
Page 19: the exception discussed below. None
Page 23 and 24: einterpretation of its constitution
Page 25 and 26: issues from comparative experience
Page 28: PART I  The Theory and Practice
Page 31 and 32: In their recent comprehensive study
Page 33 and 34: in the process, destroy democracy.
Page 35 and 36: appointment of a dictator according
Page 37 and 38: dictator. 15 The dictator enjoyed a
Page 39 and 40: was the cultural and political etho
Page 41 and 42: siege is therefore a legal institut
Page 43 and 44: In Dicey’s view, the idea of mart
Page 45 and 46: diminish, the acknowledged prerogat
Page 47 and 48: Legislative Accommodation One of
Page 49 and 50: judges to resolve competing claims
Page 51 and 52: other vastly disparate contextual r
Page 53 and 54: than undermine, the rule of law in
Page 55 and 56: Carl  Schmitt:  Sovereign  Di
Page 57 and 58: Schmitt thought that, “…liberal
Page 59 and 60: The centrepiece of Schmitt’s mode
Page 61 and 62: exception has been declared by the
Page 64 and 65: CHAPTER III THE NEO‐ROMAN C
Page 66 and 67: 3.1  Comparative  Experience:
Page 68 and 69: of emergency. It is true that the d
Page 70 and 71:
emergency’. 87 The former remains
Page 72 and 73:
legislation for the peace, order an
Page 74 and 75:
the problem of deLinition plagues t
Page 76 and 77:
to undertake, these jurisdictions m
Page 78 and 79:
whereby each successive extension o
Page 80 and 81:
may override ordinary statutes. As
Page 82 and 83:
natural disasters, and a negative l
Page 84 and 85:
However, the signiLicance of this p
Page 86 and 87:
demonstrate this. 137 Other federat
Page 88 and 89:
two classic constitutional devices
Page 90 and 91:
may be curbed by the judiciary.”
Page 92 and 93:
each department the necessary const
Page 94 and 95:
normative expectations of the accom
Page 96 and 97:
proved able, or indeed willing, to
Page 98 and 99:
executive powers, and indeed tolera
Page 100 and 101:
so clearly and blatantly transgress
Page 102 and 103:
conLlict, but the character of the
Page 104 and 105:
who use them to attack or undermine
Page 106 and 107:
to the thoughts, feelings, and ener
Page 108 and 109:
executive in favour of the latter,
Page 110 and 111:
CHAPTER IV STANDARDS GOVERNING
Page 112 and 113:
The past Live decades - the post Wo
Page 114 and 115:
adaptation in human rights law of t
Page 116 and 117:
interpreting these provisions. Subs
Page 118 and 119:
interpreted this to mean “…a si
Page 120 and 121:
were the result of an initiative by
Page 122 and 123:
All three instruments contain a lis
Page 124 and 125:
that it would “…take a State pa
Page 126 and 127:
‘views’ are dependent on the at
Page 128 and 129:
terms, but also that it provides fo
Page 130 and 131:
incomplete reports. Perhaps unsurpr
Page 132 and 133:
has also issued guidelines regardin
Page 134 and 135:
advocacy role for its own views, wi
Page 136 and 137:
The relevant State Party has an opp
Page 138 and 139:
Nothing turns on the question wheth
Page 140 and 141:
these rights. Derogation involves p
Page 142 and 143:
ights under any circumstances, and
Page 144 and 145:
population, to the territorial inte
Page 146 and 147:
neither the ECHR nor the ACHR syste
Page 148 and 149:
proclaimed a state of emergency. Th
Page 150 and 151:
proportionate, in addition to confo
Page 152 and 153:
elation to  the termination
Page 154 and 155:
ut also the deeply conceptualised b
Page 156 and 157:
Covenant (e.g., articles 6 and 7).
Page 158 and 159:
Statute of the International Crimin
Page 160 and 161:
derogability.  Even  in  time
Page 162 and 163:
national security, and the protecti
Page 164 and 165:
The Human Rights Committee has repe
Page 166 and 167:
equires that States parties provide
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 206 and 207:
ebellion, the President is empowere
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
Page 228 and 229:
embrace judicial activism, in not o
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
Page 256 and 257:
Oren Gross and Fionnuala Ní Aolái
Page 258 and 259:
K Robert N. Kearney (1971) Trade 
Page 260 and 261:
Herbert Marx (1970) ‘The  Emerg
Page 262 and 263:
Eugene V. Rostow (1945) ‘The Ja
Page 264 and 265:
UN Special Rapporteur on the Indepe
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