States of Emergency - Centre for Policy Alternatives

neither deLines a state of emergency, nor enumerates the
conditions under which a declaration becomes legally available. 84
This is the approach of the Sri Lankan constitution as well.
Chapter XVIII of the constitution is entirely a procedural
framework, which imposes no objective conditionalities on the
presidential discretion in respect of a declaration of a state of
emergency. However, these constitutional provisions are premised
on the statutory elaboration of, inter
 alia, the presidential
discretion with regard to a declaration. Accordingly, the Public
Security Ordinance No. 25 of 1947 as amended (PSO) provides
that such a declaration may be made where, in the opinion of the
President, there exists or imminently exists a state of public
emergency which requires emergency powers to be used ‘in the
interests of public security and the preservation of public order, or
for the maintenance of supplies and services essential to the life of
the community.’ 85
Other constitutions resolve the deLinitional problem by providing
for a several types of emergency regime. Broadly, these fall into
two categories: those that provide for a dual structure of
emergency regime, and those that envisage a multiple structure.
Many of the post‐communist Eastern European constitutions
provide a dual structure of emergency regime, 86 as do the
constitutions of the Netherlands and Portugal. The Dutch
constitution differentiates between a ‘state of war’ and a ‘state of
84
Articles 38, 39, Basic Law: The Government, 1780 SH (2001); see also
Baruch Bracha (2003) ‘Checks
and
Balances
in
a
Protracted
State
of
Emergency
–
The
Case
of
Israel’ 33 Israel
Yearbook
on
Human
Rights
123
85
Section 2 (1) of the PSO
86
See Venelin I. Ganev (1997) ‘Emergency
Powers
and
the
New
East
European
Constitutions’ 45 American
Journal
of
Comparative
Law 585
69