States of Emergency - Centre for Policy Alternatives

proved able, or indeed willing, to check the executive under the
extensive use of Article 48, originally used to address Germany’s
severe economic crises following World War I. 166 This set the
precedent for the Nazis once they had taken a foothold within the
democratic institutions, to use the constitution itself to demolish
democracy and (what remained of) the constitutional order,
through measures such as the Ermaechtigungsgesetz, by which the
Reichstag
 abdicated all its powers under the constitution to the
executive. Thus, towards the end of the Weimar republic, Article
48 had become virtually the sole source of governmental power,
its other parts and the ordinary legal system completely nulliLied.
There is a further issue of salience in the Weimar experience as
Gross and Ní Aoláin point out, endorsing an observation of
Rossiter’s: “Finally, and perhaps most importantly, the German
people lacked any real sense of constitutionalism and deep
appreciation of democracy, being accustomed to, and supportive
of, an authoritarian regime.” 167 This resonates with the apposite
observation Machiavelli made, in an implied indictment of his
fellow Florentines, in respect of the Roman dictatorship. The
lesson seems to be therefore that the ultimate guarantee of
constitutional government is the disposition of society to reject
the abuse of power, rather than the perfection of the paper
constitution.
The Sri Lankan experience with states of emergency has not
fortunately degenerated into extra‐constitutional dictatorship or
the suspension of the constitution, but it has been an experience
of authoritarianism and human rights violations nonetheless.
166
Between 1919 and 1932, Article 48 was invoked more than 250 times:
Rossiter (1948), op cit., pp.37‐60
167
Gross and Ní Aoláin: p.85; Rossiter (1948), op cit., p.71
96