States of Emergency - Centre for Policy Alternatives

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to make law because it is he who decides the fundamental or existential issues of politics. So Schmitt’s understanding of the state of exception is not quite a legal black hole, a juridically produced void. Rather, it is a space beyond law, a space which is revealed when law recedes leaving the legally unconstrained state, represented by the sovereign, to act.” 60 Therefore, in exceptional situations, political decision‐makers cannot be and are not constrained by a  priori  rules. Politics and not law, and political actors unconstrained by legality, constitute the essence and only real actors in the sphere of the political. In his view, “The speciLic political distinction to which political actions and motives can be reduced is that between friend and enemy.” 61 Dichotomising between friends and foes as the basic reducible political relationship means that conLlict is inevitable. But the manifestation of this dichotomy in conLlict – its most extreme form (i.e., the exception) – gives political life real meaning: “The exceptional case has an especially decisive meaning which exposes the core of the matter. For only in real combat is revealed the most extreme consequence of the political grouping of friend and enemy. From this most extreme possibility human life derives its speciLically political tension.” 62 Moreover, since the exception deLined in this way “…is sufLiciently strong to group human beings effectively according to friend and enemy,” 63 every aspect of human existence becomes political. Thus the extreme case of the exception actually becomes the norm of human existence. 60 Ibid 61 Schmitt (1976), op cit., p.26 62 Schmitt (1976), op cit., p.26 63 Ibid, pp.37, 38 58
The centrepiece of Schmitt’s model of emergency powers is the sovereign dictatorship, the principal characteristic of which is the suspension of the entire existing legal order. 64 SigniLicantly, the sovereign dictator acting under emergency powers can “…actively… change the existing legal order and transform it, in whole or in part, into something else.” 65 As Gross and Ní Aoláin observe, “The norm becomes subservient to the exception, thereby reversing the relationship between the two. In fact, Schmitt eliminates altogether the notion of the normal and replaces it with the exception.” 66 By replacing the existing legal order with the exception, Schmitt renders the exception the only valid general rule. The exception as general rule thus is not only norm‐less (having replaced the ordinary legal system), it also becomes exception‐less: that is, because Schmitt’s exception as general rule admits of no separation between normality and emergency (i.e., the state of exception), there can be no exception from the exception. 67 The consequence is a permanent state of exception (i.e., emergency under the sovereign dictatorship). In Schmitt’s view, legal norms presuppose the existence of a condition of normality. A normal, ordinary state of affairs is not merely a ‘superLicial presupposition’ that jurists choose to ignore or not; it is goes to the ‘immanent validity’ of legal norms. Thus, 64 Carlo Galli (2000) ‘Carl Schmitt’s Antiliberalism: Its Theoretical and  Historical Sources and its Philosophical and Political Meaning’ 21 Cardozo  Law Review 1597 65 Gross and Ní Aoláin: p.164 66 Ibid 67 Oren Gross (2000) ‘The Normless Exception and Exceptionless Exception:  Carl Schmitt’s Theory of the Emergency Powers and the ‘Norm‐Exception’  Dichotomy’ 21 Cardozo Law Review 1825 59
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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
Page 7 and 8: 6. Fundamental Rights  ....
Page 9 and 10: security has been prioritised and t
Page 11 and 12: The year 2008 also marks the twenty
Page 13 and 14: nationalist political ideology (mir
Page 15 and 16: Needless to say, responsibility for
Page 17 and 18: those who believe in the democratic
Page 19 and 20: the exception discussed below. None
Page 21 and 22: independence or capacity to ensure
Page 23 and 24: einterpretation of its constitution
Page 25 and 26: issues from comparative experience
Page 28: PART I  The Theory and Practice
Page 31 and 32: In their recent comprehensive study
Page 33 and 34: in the process, destroy democracy.
Page 35 and 36: appointment of a dictator according
Page 37 and 38: dictator. 15 The dictator enjoyed a
Page 39 and 40: was the cultural and political etho
Page 41 and 42: siege is therefore a legal institut
Page 43 and 44: In Dicey’s view, the idea of mart
Page 45 and 46: diminish, the acknowledged prerogat
Page 47 and 48: Legislative Accommodation One of
Page 49 and 50: judges to resolve competing claims
Page 51 and 52: other vastly disparate contextual r
Page 53 and 54: than undermine, the rule of law in
Page 55 and 56: Carl  Schmitt:  Sovereign  Di
Page 57: Schmitt thought that, “…liberal
Page 61 and 62: exception has been declared by the
Page 64 and 65: CHAPTER III THE NEO‐ROMAN C
Page 66 and 67: 3.1  Comparative  Experience:
Page 68 and 69: of emergency. It is true that the d
Page 70 and 71: emergency’. 87 The former remains
Page 72 and 73: legislation for the peace, order an
Page 74 and 75: the problem of deLinition plagues t
Page 76 and 77: to undertake, these jurisdictions m
Page 78 and 79: whereby each successive extension o
Page 80 and 81: may override ordinary statutes. As
Page 82 and 83: natural disasters, and a negative l
Page 84 and 85: However, the signiLicance of this p
Page 86 and 87: demonstrate this. 137 Other federat
Page 88 and 89: two classic constitutional devices
Page 90 and 91: may be curbed by the judiciary.”
Page 92 and 93: each department the necessary const
Page 94 and 95: normative expectations of the accom
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Page 98 and 99: executive powers, and indeed tolera
Page 100 and 101: so clearly and blatantly transgress
Page 102 and 103: conLlict, but the character of the
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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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ecognised in Article 15 may be vali
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its underlying policy and motivatio
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Firstly, the problem of the deLinit
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extension requires a special majori
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ebellion, the President is empowere
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CHAPTER VI FUNDAMENTAL RIGHTS 6
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Permissible restrictions on these r
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6.2.1 Structure and Content V
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eLlection of the high importance ac
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unduly conservative and restrictive
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Lilanthi  de Silva  v.  The
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provided for by the ICCPR Article 4
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suppressing opposition aimed at suc
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considerably diverge from, and in s
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The court’s reasoning with regard
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embrace judicial activism, in not o
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With regard to the Linding of uncon
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own judgment in Singarasa reLlect
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legal assistance, interpreter and s
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CHAPTER VI CONCLUSION “…unsee
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certain commitments, and then actin
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TABLE OF CASES A  Publication
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Nagamani  Theivendran  v.  Th
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PROCLAMATIONS  AND EMERGENCY 
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Yala National Park Regulation 7 of
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Establishment of a new Department o
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BIBLIOGRAPHY A Bruce Ackerman (2004
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J.A.L. Cooray (1995) Constitutional
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European Commission for Democracy t
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Oren Gross and Fionnuala Ní Aolái
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K Robert N. Kearney (1971) Trade 
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Herbert Marx (1970) ‘The  Emerg
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Eugene V. Rostow (1945) ‘The Ja
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UN Special Rapporteur on the Indepe
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