States of Emergency - Centre for Policy Alternatives

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unduly conservative and restrictive tests for excluding its review over the executive. 335 Even though there is some previous case law, 336 perhaps the watershed in the Supreme Court’s attitude towards a more robust role in the protection of fundamental rights is marked by the case of Joseph  Perera  v.  Attorney  General (1987), reported in 1992. 337 The case primarily concerned freedom of expression and its permissible restriction under emergency regulations. Speaking for the majority, Sharvananda C.J., held the purported exercise of emergency powers (including the restriction of fundamental rights) was not unbounded in law. The Court interpreted the ouster clause in the PSO narrowly and asserted its competence to review the validity of emergency regulations against an objective test of necessity based on the proximity or rationality of the restrictive measure and the aim sought to be secured. What came to be known as the ‘rational nexus test’ (essentially a general requirement of reasonableness) in Joseph  Perera  has been later developed by the Supreme Court into an even more sophisticated test in respect of determining the procedural and substantive validity of emergency powers. 338 Joseph  Perera  also signalled a wider space for a conception of freedom of expression based on the UDHR, establishing that 335 See for e.g., the dicta of Wanasundera J. in Thadchanamoorthy v.  Attorney General and Others (1978‐79‐80) 1 SLR 154; and Velmurugu v.  Attorney General and Another (1981) 1 SLR 406 336 See for e.g., Vivienne Gunawardene v. Perera (1983) 1 SLR 305; Sudath  Silva v. Kodituwakku (1987) 2 SLR 119; Edirisuriya v. Navaratnam (1985) 1 SLR 100; Nanayakkara v. Perera (1985) 2 SLR 375 337 Joseph Perera v. Attorney General (1992) 1 SLR 19 338 See Sunila Abeysekera v. Ariya Rubesinghe (2000) 1 SLR 314 216
estrictions based on public order or national security must demonstrate that the impugned speech would undermine the public order or was an incitement to the commission of an offence. The case established the precedent for a series of later cases in respect of freedom of expression where the Supreme Court adopted more stringent standards of scrutiny for purported restrictions. 339 The establishment of a more robust standard of accountability in Joseph Perera has also inLluenced the Supreme Court’s case law in respect of arrest and detention and the right of personal liberty and security set out in Article 13. The court has developed a body of rules in this respect that Lill the considerable gaps in the constitutional and statutory texts in favour of fundamental rights. While the argument must surely not be overstated, this has contributed to establishing at least some basic standards of the rule of law, fundamental rights and reasonableness of executive and administrative action during states of emergency. 340 Despite these developments, it was observed earlier that the vesting of original jurisdiction in the Supreme Court in respect of fundamental rights has inhibited the coherence of the constitutional jurisprudence on the bill of rights. For example, in 339 See for e.g., Amaratunga v. Sirimal and Others (1993) 1 SLR 264; Shantha Wijeratne v. Vijitha Perera (2002) 3 SLR 319; Karunatilleke v.  Dissanayake No.1 (1999) 1 SLR 157 340 See Wickramabandu v. Herath (1990) 2 SLR 348; Seetha Weerakoon v.  Mahendra (1991) 2 SLR 172; Gamini Perera v. Rajaguru (1997) 3 SLR 141; Sunil Rodrigo v. Chandrananda de Silva (1997) 3 SLR 265; Vinayagamoorthy v. The Army Commander and Others (1997) 1 SLR 113; Jayaratne and Others v. Chandrananda de Silva (1992) 2 SLR 129; Abeyratne Banda v. Gajanayake (2002) 1 SLR 365; and under the PTA, Weerawansa v. The Attorney General and Others (2000) 1 SLR 387 217
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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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Statute of the International Crimin
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derogability.  Even  in  time
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national security, and the protecti
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The Human Rights Committee has repe
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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
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
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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
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Page 202 and 203: Firstly, the problem of the deLinit
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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 218 and 219: Lilanthi  de Silva  v.  The
Page 220 and 221: provided for by the ICCPR Article 4
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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
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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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