States of Emergency - Centre for Policy Alternatives

eLlection of the high importance accorded to fundamental rights
by the constitutional order introduced in 1978. 329 However, case
law from the early years of the constitution evinces a general
attitude of difLidence in developing its fundamental rights
jurisdiction, and showed extreme deference to the executive in
circumstances of public emergency. This changed later when the
Supreme Court demonstrated a more aggressive approach to
holding the executive to account and in developing its
fundamental rights jurisprudence.
Thus, the rendering of the Supreme Court as a court of Lirst
instance has resulted in a mixed experience. On the one hand, the
Supreme Court has been able to assert itself against the executive
in states of emergency in a way a lower court would have found
difLicult. This was especially true during the late 1980s and 1990s
when the Supreme Court was at its apogee as the guardian of
fundamental rights against a rampant executive in a particularly
challenging security context. On the other hand, the theoretical
clarity and the development of general principles with regard to
the judicial interpretation of the bill of rights have suffered as a
result of case law dominated by questions of fact.
The judicial response to review of procedural and substantive
executive action in states of emergency will be discussed further
below. Given, however, that during the thirty years of existence of
the present constitution, the state of emergency has been the
norm rather than the exception, the vast majority of fundamental
329
See Parliamentary Series No.14 of the Second National State Assembly
(1978) Report
of
the
Select
Committee
of
the
National
State
Assembly
appointed
to
consider
the
revision
of
the
Constitution, 22 nd June 1978: p.
141; Draft Chapter III: p.526; See also A.J. Wilson (1980) The
Gaullist
System
in
Asia:
The
Constitution
of
Sri
Lanka
(1978) (London:
Macmillan): Ch.6
214