States of Emergency - Centre for Policy Alternatives

and exercise, and that in exceptional circumstances, such as states
of emergency, some rights may be require to be temporarily
suspended. From the recognition of these necessities and the
consequent distinction between limitations and derogations Llow
a set of detailed rules that govern the substantive and procedural
dimensions of limitations and derogations, including the
constitutional enumeration of absolutely non‐derogable rights.
Moreover, the development of international best practice in
respect of limitations shows that the preference now is to
entrench a single limitation clause in the bill of rights which sets
out the general principles to be used in determining the scope of
permissible limitations themselves. In other words, the concern is
to ‘limit the limitations’ so as to protect the essence of a right from
being extinguished in the name of permitted restrictions. An
instructive example of the latter approach is Section 36 of the
South African Constitution. 342
Similar to the ICCPR, however, the Sri Lankan bill of rights adopts
the older approach which involves attaching restrictions based on
different justiLications to speciLic rights. Article 15 employs the
term ‘restrictions’ and in its enumeration of permissible
restrictions encompasses both limitations (e.g. for the protection
of the rights of others) and derogations (i.e., restrictions based on
national security). However, the Sri Lankan bill of rights does not
follow the ICCPR in expressly setting out a list of non‐derogable
rights. These are identiLied by implication as described above.
It is to be further noted, that the rights which are not susceptible
to restriction under the constitution are not as extensive as those
342
See also Halton Cheadle, ‘Limitation of Rights’ in Cheadle, Davis &
Haysom (2002), op cit., Ch.30; ECHR Article 18; ACHR Articles 27, 29 and
30
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