States of Emergency - Centre for Policy Alternatives

natural disasters, and a negative list in respect of security‐related
or man‐made crises. 122
Indeed, the South African bill of rights (both in terms of breadth
and depth of scope, and the general limitations clause) in general,
and Section 37 in particular, represents perhaps the best
international practice in the protection of fundamental human
rights during a time of emergency. 123 Among the human rights
safeguards built into the South African emergency regime is the
procedural framework which gives a central role to the legislature
over declaration, and comprehensive judicial review over all
aspects of emergencies. On the other hand are the substantive
protections including the list of non‐derogable rights, the explicit
establishment of limits on permissible derogations, and the
domestic justiciability of international human rights within the
emergency regime. Together, these are what Klug calls the ‘own
internal rules of interpretation’ of the South African bill of
rights. 124 Against such a sophisticated treatment of human rights
in states of emergency, the Sri Lankan framework seems
rudimentary and primitive.
As in the South African case, some constitutions make reference to
the State’s international obligations in respect of international
human rights instruments and their derogation standards. 125
These are highly constructive sources of both positive rights as
122
For examples of all three approaches, see Gross and Ní Aoláin: p.8
123
Cheadle, Davis & Haysom (2002), op cit., Ch.31
124
Heinz Klug, ‘South
Africa:
From
Constitutional
Promise
to
Social
Transformation’ in Jeffrey Goldsworthy (2006) Interpreting
Constitutions:
A
Comparative
Study (Oxford: Oxford UP): Ch.6 at p.281
125
Another example is Article 23 of the Finnish Constitution
82