States of Emergency - Centre for Policy Alternatives

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own judgment in Singarasa reLlects on the commitment of the Sri Lankan State to human rights and its obligations at international law in respect of a multilateral treaty, that is a foundation stone of the international legal system today. 6.4.2 The Supreme Court Advisory Opinion on the ICCPR In March 2008, the President submitted a reference under Article 129 (1) of the constitution to obtain the opinion of the Supreme Court on two questions of law: 1. Whether the legislative provisions cited in the reference that have been taken to give statutory recognition to civil and political rights in the International Covenant on Civil and Political Rights (ICCPR) of the United Nations adhere to the general premise of the Covenant and whether individuals within the territory of Sri Lanka would derive the beneLit and the guarantee of rights as contained in the Covenant through the medium of the legal and constitutional processes prevailing in Sri Lanka 2. Whether the said rights recognised in the Covenant are justiciable through the medium of legal and constitutional process prevailing in Sri Lanka Four intervenient petitioners, including the Centre for Policy Alternatives (CPA), were permitted by court to make submissions. The opinion was published in the press (The  Nation, 30 th March 2008), albeit without the schedule of legal provisions alluded to in the opinion in the following terms: “On the basis of the submissions of the Additional Solicitor General, the observations of Court and submissions of other counsel, for purposes of clarity 232
a comprehensive schedule annexed hereto was prepared with two columns. The column on the left gives the particular Article of the Covenant and the column on the right gives the legislative compliance within Sri Lanka and the relevant pronouncements made by the Supreme Court and the other Courts to further strengthen the guarantee of rights recognised in the Covenant.” This has not been publicly available, and it is therefore difLicult to verify its claims in respect of the compliance of Sri Lankan law with the ICCPR. The Supreme Court dismissed all of the submissions on seven speciLic matters made by counsel for the intervenient petitioners, mainly on the ground that many of these of submission were based on hypotheses. The court came to the conclusion that “…the legislative measures referred to in the communication of…the President dated 4.3.2008 and the provisions of the Constitution and of other law, including the decisions of the Superior Courts of Sri Lanka give adequate recognition to the Civil and Political Rights contained in the International Covenant on Civil and Political Rights and adhere to the general premise of the Covenant that individuals within the territory of Sri Lanka derive the beneLit and guarantee of rights contained in the Covenant” and “that the aforesaid rights recognised in the Covenant are justiLiable through the medium of the legal and constitutional process prevailing in Sri Lanka.” It is difLicult to agree with the Supreme Court, given that the opinion did not contain a full and reasoned basis on which its conclusions can be defended. For example, in relation to the ICCPR Act No. 56 of 2007, the court conLined itself to reiterating the claims made in the preamble – which is a total misnomer given the substance of the Act – and did not consider the fact that the ICCPR Act contains only four main substantive rights‐conferring provisions in Sections 2, 4, 5 and 6 (viz., the right to be recognised as a person before the law; entitlements of alleged offenders to 233
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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
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CHAPTER V SRI  LANKA’S  CON
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emergency without having to look ov
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A state of emergency is brought int
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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 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
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Page 218 and 219: Lilanthi  de Silva  v.  The
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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
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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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