States of Emergency - Centre for Policy Alternatives

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considerably diverge from, and in some cases vitiate, the rights and standards of restrictions established by the ICCPR. Despite this, however, Sri Lanka has made no communication of derogation as required by the procedure set out in Article 4 (3). This is a prima facie violation of a treaty obligation aimed at international monitoring of human rights within States, and thereby diminishes an important device of human rights protection in Sri Lanka. Finally, attention needs to be drawn to the unique nature of the international legal obligations undertaken by State ratifying the ICCPR. Once States have acceded to the Covenant, they have no right of unilateral withdrawal and would continue to be bound by the treaty despite contrary intention, unless all other States Parties agreed to such withdrawal. In Fact Sheet No. 15, the OfLice of the High Commissioner for Human Rights provides the following explanation: “Unlike many treaties, the concluding provisions of the Covenant do not provide for denunciation of the treaty allowing a State party to withdraw from the treaty regime. In these circumstances, the [Human Rights] Committee has taken the view that in the light of the particular character of human rights treaties such as the Covenant, which extend basic rights and freedoms to persons within a State party’s jurisdiction, these rights and freedoms may not be withdrawn once conLirmed. Accordingly, once a State has ratiLied the Covenant, it is not permitted to withdraw from its obligations by denouncing the treaty.” 224
1.4.1  The  Singarasa  Case  and  Sri  Lanka’s  International  Obligations The case of Singarasa  v.  Attorney  General  (2006) concerned an application for revision and / or review of an earlier decision of the Supreme Court upholding the conviction of the petitioner on charges under emergency regulations and the PTA. The application was made on the basis of the views of the Human Rights Committee in respect of Communication 1033 of 2000 that had been made by the petitioner, availing himself of the right of individual communication provided by the First Optional Protocol to the ICCPR. In the course of the judgment, Silva C.J., speaking for the court, went on to make some remarkable pronouncements that are of major signiLicance not only for human rights protection in Sri Lanka, but which also throws into question the fulLilment of fundamental international obligations by the Sri Lankan State. The reasoning of the court is perplexing when assessed against widespread contemporary thinking regarding the judicial role in the protection of human rights, and appears to depart from modern developments in international human rights and comparative public law in several respects. Moreover, the court adopts an attitude to the interpretation of sovereignty as laid down in the constitution that can reasonably be described as outmoded, and is inconsistent with the State’s undertaking of international obligations under the ICCPR and the First Optional Protocol. In view of the relatively uncomplicated, although limited, reception of international human rights norms evidenced in the fundamental rights jurisprudence of the Supreme Court in the past, the Singarasa judgment represents a strident departure from previous judicial attitudes. 225
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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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equires that States parties provide
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The only occasion in which the Huma
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would entail a breach of the State
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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
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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 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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