Rights, emergencies and judicial review

Abstract

Recurrent periods of Emergency rule in Malaysia, Sri Lanka and Bangladesh provide the background for a comparative examination of constitutional emergency powers, individual rights, and judicial review. The basic premise of this study is that the invocation of a state of emergency can never justify an abrogation of constitutional government and, in this regard, the role of the Court is crucial. This work examines the extent to which the Court has performed its expected role, identifies problems in the approaches to interpretation which have been adopted, and explores alternative approaches to constitutional interpretation and judicial review. The first part of the thesis examines the operation of constitutional rights, their derogations during an Emergency, and the mechanisms of Emergency rule. Following this, three chapters examine, in detail, the approaches of the Courts in adjudicating issues of rights during states of emergency. The last part subjects conventional jurisprudence to a critical inquiry and explores alternative judicial techniques. An approach to constitutional adjudication based on a radical exposition of "law", the nature of citizens’ rights, and a proper theory of judicial review is advocated in the concluding chapter.