States of Emergency - Centre for Policy Alternatives

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may override ordinary statutes. As Gross and Ní Aoláin note, “…in order to prevent repetition of the mistakes that led to the destruction of the Weimar constitutional experiment…modern constitutional provisions often proscribe any change or modiLication of the constitution itself during an emergency, or at least any change to, or modiLication of, the nature of the regime and its core constitutional norms.” 121 Nonetheless, two prominent examples of liberal democratic constitutions permitting fairly broad suspension of constitutional provisions during times of emergency are those of the Swiss confederation and the Irish Republic. Under the doctrine of régime  des pleins  pouvoirs (regime of plenary powers), the Swiss federal government can act to safeguard the confederation’s security, independence, neutrality or economic interests in emergencies, when the legislature cannot meet or the legislative process can no longer function. While such an extreme assumption of power by the federal government would be deemed unconstitutional normally, in the circumstances it becomes operational, the doctrine offers practically no limits, apart from Switzerland’s obligations under the European Convention of Human Rights, on the power of the federal executive. Likewise, the constitution of the Irish Republic contains a bizarre provision, Article 28.3.3°, which suspends the constitution including fundamental rights in times of emergency through the 121 For e.g. Article 89 (4) of the French Constitution; Articles 187, 196 of the Belgian Constitution; see Gross and Ní Aoláin: p.60‐61. Under Article 155 of the Sri Lankan constitution, the President is empowered to make emergency regulations which can override the provisions of any ordinary law, but not the provisions of the constitution. This is salutary. But in practice, rule by emergency powers have become so endemic, and executive accountability so weak, that emergency rule‐making often strays into the sphere of the unconstitutional: see Chapter 5, infra 80
provision of a blanket legal overriding power, to both legislative and executive action during a time of emergency. The only legal limitation on its invocation is its purposes (i.e., grave emergencies), which if bridged allows the government to virtually re‐write the constitution through emergency measures. It would seem that the most salient counter against abuse of such provisions is the extra‐legal one of deeply rooted liberal democratic cultures in these countries (for example, the Swiss provisions have only been invoked twice: during the two world wars), preventing the unhappy political experiences under such provisions as Article 96 (1) of the Algerian constitution which provides that ‘during a period of state of war, the Constitution is suspended [and] the President of the Republic assumes all the powers.’ The principal device of fundamental rights protection in democratic constitutional orders is the bill of rights, which provides a fortiLied bulwark of citizens’ liberty, especially individual rights, against ordinary politics and beyond the reach of democratic majorities. During times of emergency this protection assumes critical signiLicance. Yet at the same time, emergencies are also the times during which the enjoyment of some rights may need to be curtailed. Democratic constitutions adopt one of two techniques in resolving this problem: (a) a positive list approach, whereby the constitution identiLies which rights and freedoms may be restricted under emergency powers; (b) the negative list approach, whereby the constitution sets out explicitly which rights and freedoms may not be so restricted even in the midst of acute crisis. Article 15 (7) of the Sri Lankan constitution reLlects the former approach, whereas Section 37 of the South African constitution is the international exemplar of the latter. Some constitutions take a mixed approach adopting a positive list for 81
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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
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 and 58: Schmitt thought that, “…liberal
Page 59 and 60: The centrepiece of Schmitt’s mode
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 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
Page 104 and 105: who use them to attack or undermine
Page 106 and 107: to the thoughts, feelings, and ener
Page 108 and 109: executive in favour of the latter,
Page 110 and 111: CHAPTER IV STANDARDS GOVERNING
Page 112 and 113: The past Live decades - the post Wo
Page 114 and 115: adaptation in human rights law of t
Page 116 and 117: interpreting these provisions. Subs
Page 118 and 119: interpreted this to mean “…a si
Page 120 and 121: were the result of an initiative by
Page 122 and 123: All three instruments contain a lis
Page 124 and 125: that it would “…take a State pa
Page 126 and 127: ‘views’ are dependent on the at
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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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