States of Emergency - Centre for Policy Alternatives

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Establishment of a new Department of Civil Security, Gazette Extraordinary No. 1462/20 of 13 September 2006 2008 Government NotiLications, Gazette Extraordinary No. 1458/5 of 15 August 2006 Emergency Miscellaneous Provisions and Powers Regulation (Amendment), No. 1 of 2005, Gazette Extraordinary No. 1458/5 of 15 August 2006 Appointment of Commissioner‐General of Essential Services, Gazette Extraordinary No. 1458/5 of 15 August 2006 Emergency Miscellaneous Provisions and Powers Regulation (Amendment), No. 1 of 2005, Gazette Extraordinary No. 1456/27 of 3 August 2006 Emergency Miscellaneous Provisions and Powers Regulation (Amendment), No. 1 of 2005, Gazette Extraordinary No. 1456/4 of 31 July 2006 Government NotiLications, Gazette Extraordinary No. 1456/4 of 31 July 2008 Fuel Storage High Security Zones Regulations, No. 4 of 2006, Gazette Extraordinary No. 1455/37 of 28 July 2006 Colombo High Security Zone Regulations, No. 3 of 2006, Gazette Extraordinary No. 1452/28 of 8 July 2006 Emergency Miscellaneous Provisions and Powers Regulation (Amendment), No. 1 of 2005, Gazette Extraordinary No. 1450/18 of 21 June 2006 Emergency Miscellaneous Provisions and Powers Regulation (Amendment), No. 1 of 2005, Gazette Extraordinary No. 1448/21 of 8 June 2006 Emergency Miscellaneous Provisions and Powers Regulation (Amendment), No. 1 of 2005, Gazette Extraordinary No. 1442/16 of 27 April 2006 Revoking of Temporary Suspension of Regulation No. 2 of 2005, Gazette Extraordinary No. 1442/13 of 25 April 2006 248
Administration of Local Authorities Regulation, No. 1 of 2006 Gazette Extraordinary No. 1441/8 of 19 April 2006 Establishment of Prohibited Zone Regulations No. 1 of 2006, Gazette Extraordinary No. 1438/8 of 27 March 2006 Emergency Miscellaneous Provisions and Powers Regulation (Amendment), No. 1 of 2005, Gazette Extraordinary No. 1414/22 of 13 October 2005 Temporary Suspension of Regulation No. 2 of 2005, Gazette Extraordinary No. 1411/14 of 21 September 2005 Emergency Miscellaneous Provisions and Powers Regulation No. 1 of 2005, Gazette Extraordinary No. 1405/14 of 13 August 2005 Proclamation by the President declaring a State of Emergency throughout Sri Lanka, Gazette Extraordinary No. 1405/13 of 13 August 2005 The Prevention of Terrorism (Temporary Provisions) Act, Gazette Extraordinary No. 1400/17 of 8 July 2005 High Security Zone (President’s House and its Environs) Regulations No. 1 of 2005, Gazette Extraordinary No. 1400/17 of 8 July 2005 Emergency Miscellaneous Provisions and Powers Regulation No. 1 of 2005, Gazette Extraordinary No. 1378/23 of 3 February 2005 Emergency Miscellaneous Provisions and Powers Regulation No. 1 of 2005, Gazette Extraordinary No. 1374/15 of 6 January 2005 249
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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
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Regulations No. 1 of 2005 286 and E
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that of the person committing the a
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mens  rea  requirement for any
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extraordinary powers to the executi
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of almost every human rights norm 2
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question whether executive law‐ma
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merits as well as the statement of
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struck down a detention order after
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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 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
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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 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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