States of Emergency - Centre for Policy Alternatives

In their recent comprehensive study of the theory and practice of
states of emergency, Gross and Ní Aoláin 1 have advanced three
broad conceptual models that facilitate a more systematic
understanding of states of emergency and the competing issues
they involve. The typology used by Gross and Ní Aoláin is the
analytical framework adopted in this chapter. These are (a) the
models of accommodation; (b) the ‘business as usual’ model; and
(c) the extra‐legal measures model.
In Gross and Ní Aoláin’s exposition of the models of
accommodation, they introduce three classical concepts, viz., the
Roman dictatorship, the French état
 de
 siege, and the British
concept of martial law. In modern comparative context, they also
discuss three categories of accommodation, viz., constitutional,
legislative, and interpretive accommodation. Many of these models
provide useful theoretical and comparative insights for analysis of
the Sri Lankan experience, but we focus more speciLically on the
neo‐Roman models of constitutional accommodation for two
reasons: Lirst, because the Sri Lankan constitutional and legal
framework (i.e., its textual provisions) belongs within this
conceptual category; second, because this analysis and critique of
the Sri Lankan framework is premised upon the liberal
constitutionalist assumption of separation between emergency
and normalcy as discussed in the previous chapter.
The ‘business as usual’ model, which is based on ‘notions of
constitutional absolutism and perfection,’ entertains no deviation
from ordinary rules and norms of legal conduct even in times of
emergency. This commitment to the constitutional order is
absolute in the sense that there is no substantive difference of
1
Oren Gross and Fionnuala Ní Aoláin (2006) Law
in
Times
of
Crisis:
Emergency
Powers
in
Theory
and
Practice (Cambridge: Cambridge UP);
hereinafter Gross and Ní Aoláin
31