States of Emergency - Centre for Policy Alternatives

einterpretation of its constitutional sphere as well as go beyond
to the politics of self‐legitimation.
From these preliminary observations it is clear that an analytical
framework capable of fully explaining states of emergency in Sri
Lanka needs to address a number of factors. Firstly, it must
provide a sound theoretical and comparative basis for analysis and
critique. Secondly, it must deal with the textual provisions of the
Sri Lankan constitutional and legal dispensation and their judicial
interpretation. But, thirdly, it must also go beyond legal text and
judicial interpretation to an examination of the attendant political
culture and ofLicial attitudes to the exercise of these powers. The
issues relating to the third consideration, however, are so complex
and wide as to justify treatment in another book, and are therefore
only dealt with in a cursory fashion here.
Accordingly, the analytical framework of this paper draws on the
theory, practice and legal scholarship on states of emergency to
articulate three models of emergency powers: (a) the models of
legal accommodation, with particular focus on the Roman model
of constitutional accommodation; (b) the libertarian model of
constitutional perfection; and (c) the models of extra‐legality, with
a particular reference to the work of Carl Schmitt. While the
institutional variations of these models as applied in international
experience and constitutions are diverse and not necessarily as
conceptually neat as the theoretical articulation of the models
would suggest, the political challenges and legal problems they
seek to address are, perhaps unsurprisingly, remarkably similar.
That is, the question of how to rationalise the provision of public
authority for dealing with extreme and violent crises; and in
constitutional democracies the dilemmatic choices this problem
poses for the preservation of the core values of the democratic
order, in particular, fundamental human rights and the rule of law.
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