The Centre for Policy Alternatives (CPA) is pleased to publish the fifth paper in the CPA Working Papers on Constitutional Reform, on States of Emergency: Issues for Constitutional Design, by Dr Asanga Welikala (Research Fellow, CPA).
Designing the constitutional framework governing states of emergency is a major task for constitution-makers, especially in post-colonial societies such as Sri Lanka, where emergencies have been extended, the abuse of emergency powers extensive. The legal provision for states of emergency – for government during times of acute crisis – presents a fundamental challenge for those who believe in the democratic form of government, human rights, and constitutionalism. Balancing the recognition that the state must be empowered to take extraordinary measures to deal with violent challenges and crises threatening the life of the community, is the need to ensure safeguards for the core of the democratic order. In a constitutional democracy, it is only the assurance of an appropriate balance between these competing objectives that ultimately justifies the conferral of extraordinary powers on the state. If the state, in response even to armed and violent challenge, is allowed to habitually override the core democratic values of the constitutional order such as fundamental human rights, the rule of law, and the separation of powers, then the moral and political justification for constitutionally providing for emergency powers is fatally undermined. Thus the theory and practice relating to states of emergency in constitutional democracies concern certain overarching themes such as the fundamental distinction between emergency and normalcy (and accordingly the separation of treatment between exceptional measures and ordinary law and processes). Flowing directly from this is the concern to limit the operation of emergency powers in time; to establish requirements of justification prior to invocation of these powers; the mechanisms for approval, oversight and accountability; and to regulate the substantive reach of emergency powers, especially where fundamental rights are implicated.
This Working Paper is intended to identify and discuss in comparative context the issues that ought to receive the attention of drafters as Sri Lanka undertakes reforms through the current process in the Constitutional Assembly. At the end of the paper the author sets out a checklist of questions that constitution-makers can use to determine if they have considered all the issues germane to the design of a normatively defensible, effective, and well-ordered system of emergency powers that can deal with future crises in a better way than has been our experience so far.
Download the PDF of the Working Paper here.