Classification of Emergency Powers: An analysis

Updated: Sep 16

Authored By:

Aishwarya Malewar(Research Intern)


Each nation may encounter national crises stemming from war, invasive occupation, armed uprisings, terrorist threats, natural disasters, epidemics or other forms of crisis or catastrophe. Democratic governments, though, can pose specific difficulties when coping with crises, because the constitutionally protected freedoms and structural checks and balances synonymous with a representative constitutional system may be obstacles to rapid decision-making which can impede successful intervention.[4]

Constitutions are also structured to regulate the abuse of authority, using mechanisms such as bicameralism, presidential veto power, super resolutions, and legislative adjudication today. To some extent, these tests represent a kind of mistrust of those who wield the State 's authority, at least in terms of defending human rights, and that mistrust is at its highest when it comes to exercising executive power. Even British legislative provisions empower judges to intervene with the executive, provided they can be convinced that statutory law does not permit an administrative procedure.[6]

The need for powers that transcend ordinary limits originated in ancient Rome along with the idea of a minimal republican, or parliamentary, government. Faced with a direct threat to the constitutional system itself, the Roman Senate could decide to nominate a dictator for a period not exceeding six months. However, the tyrant wielded unrestrained power at that period, constrained only by the individual's loyalty to the republic itself. This conservative purpose is reflected in the fact that the executive is not permitted to use emergency powers to make any permanent changes to the legal/constitutional system. Emergency powers, exercised in this conservative manner, have long been regarded as a vital and, perhaps, even an essential component of a liberal constitutional government — that is, a government that protects rights. They are the answer to overcoming the problem these governments face when they are either under foreign or internal attack.[6]

The dictator was appointed to save or preserve the existing system, not to destroy or replace the existing one. This provision was first revived in the modern era by Niccolò Machiavelli, who defended a ruler's assignment of extraordinary power to enable a society and its political institutions to be safeguarded. John Locke and Jean-Jacques Rousseau shared the belief that a representative framework needed the capacity to cope with unpredictable and urgent challenges.

Public emergency cases require both derogations from the usual norms of human rights and improvements in the allocation of duties and powers within the various State bodies. Derogations from universal human rights are an especially significant concern as history has demonstrated that the most serious human rights abuses continue to occur in emergency states. Nevertheless, as for crises, the key universal human rights laws of our day include a derogation provision. The European Convention on Human Rights and Fundamental Freedoms (ECHR, Article 15) allows derogations in cases of "war or other public emergencies that threaten the nation's way of life." The International Covenant on Civil and Political Rights ( ICCPR, Article 4) applies to an "international emergency that threatens the survival of a country," while the American Convention on Human Rights (ACHR, Article 27) applies to a "war, public risk or other general emergency threatening the freedom or security of a State".[4]

Emergency laws are required as they allow the State to respond quickly to emergencies while ensuring the exercise of emergency powers under the rule of law. If well-structured and correctly implemented, emergency laws provide a tool for democracy's self-defence — a means to guarantee political stability while having the capacity required to tackle significant risks and problems within the context of a representative system.

Many constitutions include clauses about emergencies. There is no emergency law as such in a handful of nations, but there are guidelines that must be enforced in the case of invasion, invasion threat or other emergencies. No emergency law occurs in the ordinary sense of the term in Norway, Denmark, Luxembourg, Sweden and Austria, but what is required is a prolonged transition of statutory authority if the Parliament is unable to comply and fulfil its duties. Parliament passed a Law in Norway in 1950, which provides further expertise. In emergency or warlike times, to the executive branch.

This activity was particularly important in Weimar Germany's constitution, which came into effect following the First World War. The Weimar constitution's emergency clauses were used more than 200 times, primarily to counter violent rebellion and immediate threats to sustaining the constitutional structure itself. Nevertheless, in the early 1930s, these laws were gradually used to address a wide variety of social and domestic issues like economic collapse.[2]

Although these clauses possibly allowed Weimar Germany to survive, in the end, these clauses also helped Adolf Hitler to regain and consolidate his authority, officially implementing the emergency powers of the constitution as chancellor in 1933. Through the prose of the lawyer Carl Schmitt, Hitler's abuse of power gained theoretical support, arguing that no government would provide for all contingencies and that the executive must be able to function outside the boundaries of ordinary law if constitutional democracy itself is to endure.[2]

In 1976, in response to the continued existence of four declared national emergencies, the oldest of which had been in place for forty years, Congress in the US enacted the National Emergencies Act, codified at 50 U.S.C. 1601-51. The Act did not cancel the pending declarations of emergency, but set an expiry deadline for all proclaimed emergencies, with no further steps being taken. It also called for a range of termination strategies, including the mandatory termination of a national emergency every year on its anniversary, if the President refuses to move to renew it.[1]

An example of emergency in the US would be, on 14 September 2016, the state of emergency proclaimed in Proclamation 7463 in response to the terrorist attacks of September 11 was scheduled to expire until recently. Nevertheless, by following the protocol defined under the National Emergency Act, the then President Obama extended the state of emergency beyond that given deadline.[3]

A suggestion of emergency authority was at the root of the termination of habeas corpus in 1861 by President Lincoln, without Legislative consent. Lincoln argued that the Southern revolt created an emergency that gave him the unprecedented power of suspending the writ arbitrarily. With Chief Justice Taney sitting as judge, Maryland's Federal District Court overturned the suspension in Ex Parte Merryman,2 though Lincoln ignored the order.[1]

Likewise, President Roosevelt exercised emergency authority when issuing Executive Order 9066 ordering all Japanese Americans living on the West Coast to be held in internment camps during World War II. It has declared war before, the U.S. Supreme Court found that Congress had recognized a continued emergency. Consequently, the President had behaved by delivering the order in compliance with the stated intent of Congress, which was to respond to the war emergency. As a result, the U.S. In Korematsu v. the United States 3, the Supreme Court upheld Executive Order 9066 as a constitutional exercise of Presidential Commander in Chief and emergency powers.

In Executive Order 10340, Harry Truman announced the use of emergency measures as he confiscated private steel factories which were not producing steel because of a labour dispute in 1952. Despite the Korean War raging, Truman asserted that if the government failed to supply him with the necessary support required to keep the military well-equipped, he could not fight a war effectively. However, the U.S. Supreme Court dismissed the contention in Youngstown Sheet & Tube Co. v. Sawyer,4 rulings 6-3 that neither Commander in Chief nor any alleged emergency powers granted the President the right to arbitrarily take private property without Legislative approval.[1]

In Switzerland, there are no clear clauses in the Federal Constitution on Law of emergency, in the common sense of the term. However, many options can be discerned. This is a Total Power policy. The Swiss doctrine acknowledges that if the Federal Assembly is unable to meet or the usual legislative process can no longer be pursued, the Federal Council is expressly allowed by the Constitution to take any appropriate steps to protect the stability, freedom and neutrality of the republic, its national economic interests, etc., even though they are unconstitutional. The Federal Assembly has the authority to approve this "state of emergency" before it will meet.[5]

The Italian Constitution only applies to the war-state (Article 78). In the case of battle, the Chambers' term can be prolonged by a statute until the conclusion of the conflict. The ban of the death penalty infliction is relaxed in cases provided for by the rules of military war. The authority of army judges can be expanded by law; exceptions to the rules on appeal to the Cassation Court against judgments of army judges are allowed, and the Chambers are allowed to grant the Cabinet the required powers in compliance with the conditions of the case. Such a transition can not, however, entail the complete removal of Parliament's powers.[5]

Not mentioning the Constitutions of Japan, Luxembourg and San Marino doesn't mention any rule for an emergency at all. Although the Police Law allows the Prime Minister to declare a state of emergency in Japan, this does not, in the ordinary sense of the word, constitute an emergency rule since the law does not confer extraordinary powers.[5]

There is just one form of emergency law in a handful of countries (Cyprus, Malta, Liechtenstein). For example, in Cyprus, a Proclamation of Emergency may be issued in the event of war or other public danger threatening the nation's life. Similarly, the Slovak Constitution calls for the law of emergency without stating the reasons. There are references in ordinary law to different forms of emergency regulation, such as military warning status, natural hazards and catastrophes. However, in most situations, there are various types of emergency law for dealing with different kinds of emergencies concerning the situation 's severity.[5]

Three specific forms of emergency are also stated in the Hungarian Constitution: state of siege, state of war, state of public risk. In case of war or imminent danger of external military invasion, the state of siege is imposed. In this case, a National Defense Council shall be established to exercise the powers of the Government, the President of the Republic and other powers delegated by the National Assembly to it. The Chairman of the National Defense Council is the Republic 's President. The members include the National Assembly chief, heads of political party parties appointed at the National Assembly, prime secretaries, secretaries, general of the army. Throughout the case of extreme and aggressive actions that endanger the civil order or natural or economic accidents, the state of emergency is proclaimed. During the state of emergency, the President of the Republic shall take extraordinary steps through decrees. Finally, in situations of less serious risks to public order the state of public danger is declared and Public defense, allowing the government to issue decrees that may challenge existing legislation.[5]

Many administrations, however, have illegally used emergency powers — unnecessarily prolonging or renewing emergency states, often use emergency powers not to preserve political normality but to circumvent usual mechanisms of democratic oversight, intimidate opponents, manipulate votes, censor the press, often eventually set aside a nominally democratic constitution and impose a dictatorial system. Paraguay under Stroessner and Egypt under Mubarak are infamous examples, where the emergency laws were regularly revived and systematically used to suppress nonviolent opposition. Hence, considerable caution must be taken in Designation of clauses on emergency powers in the constitution. The challenge is that of finding away.[3]

Discussions of emergency powers are not limited to the West, of course, and have been especially important in Eastern Europe, Africa, Latin America, and South Asia, where recently formed governments struggled with challenges to their existence and the misuse of decentralized authority, notably in India in 1971, Russia in the 1990s, and the former Yugoslavia.[2]

A careful balance needs to be struck in creating a constitution between, on the one hand, the need for fair deliberation in decision-making and, on the other, the need for swift and immediate action. Similarly, the obligation to uphold civil liberties and human rights must be weighed against the responsibility to defend the state and important national interests which can also include restricting those freedoms.[3]

Demands for municipal democracy need to be weighed against the need for cohesion, effective administration and resource sharing. There is no set relation between those goals. This will change, with different goals taking priority at various times and in different conditions. In normal times, a representative government will prioritize participation and deliberation in decision-making, but swift and decisive executive action in times of emergency may have greater priority.

Similarly, in times of peace, a constitution may put the highest importance on the preservation of private property rights and the rule of law, but in a big conflict, the State 's authority to direct national capital in the interests of national survival may be given priority. This need for stability, if there is to be a democratic constitution. The traditional argument in favour of emergency powers in emergencies without a catastrophic collapse. Citing a well-known proverb in this sense, esteemed US judge Richard Posner claimed: 'A constitution that will not bend will break.'.

For example, an earthquake that affects a part of the country can catastrophically diminish civil local authorities' capacity to delivering essential services and national military intervention capable of 'aiding civil power' may be necessary to save lives, even if this means exceeding their usual constitutional limits.[1]

The Constitution foresees two types of emergency rule for the majority of our countries. There are emergency law and the state of war in Spain, Greece, Romania, Lithuania, Poland and Russia. They 're the state of emergency and the state of war in Slovenia and Albania. The Constitution applies to a state of security in Finland, and law on a ready condition has since been introduced under the Constitution. The State of Readiness Act (1991) includes provisions that are valid in non-war or insurrection emergencies too.

In February 2019, President Donald Trump announced a national emergency to obtain money for the building of a wall at the southern boundary that Congress previously specifically refused. Many Americans were unaware of the announcement that a broad series of rules grant the president vastly expanded authority during crises. Based on prior work, the Brennan Center has established 123 legislative forces that could become applicable to the president when he declares a national emergency, including those used by the authority president Trump to help create the wall. A further 13 statutory powers become available when Congress declares a national emergency.[4]

Conclusion

There are two major justifications for making statutory arrangements for emergency powers: one is that normal parliamentary institutions suited to defending democracy are too inefficient to use in emergency circumstances and that special institutions are required to maintain the government itself. In his Discourses, Machiavelli elegantly claimed this justification:

Roman structures, [the dictatorship] is one that needs to be regarded and numbered among those that made the longevity of an empire so great: for without a comparable system, the cities would have prevented such remarkable dangers only with difficulty; for the usual orders of the republic pass gradually, so that no council or governor may do something for himself, but I do. Remedies are more harmful because they have to be introduced to conditions that cannot wait for time, and Republics should also have a common approach between their institutions. And the Venetian Republic (who is outstanding among modern Republics) has assigned power to a select number (few) of people so that they can agree on all matters of immediate needs without broader consultation.

The second and one explaining statutory emergency measures we insisted on preserving or isolating the daily activities of civil structure and what happens in an emergency situation. This is the argument in favour of statutory dualism: the idea that two legal systems should have rules, one that works under regular situations to secure rights and liberties and one that is ideal for dealing with emergency circumstances.

There is a persistent tendency to cause emergency laws to spill over into the workings of the regular legal system. Rights and liberties will be forever changed under the pressure of violent attacks – actual or distorted. In the classical dictatorship, this is far less possible; republican rulers lack the right to unilaterally change the legal system. We've concluded that the current threats derive from the growing need for equality or political legitimacy. Perhaps the forces given in this new model are more relevant to the role of handling emergencies. The older, republican style might not even be available to us any more.

References

1. Jurkowski, Stephanie, 2007, Emergency Powers, Cornell Law School, Available athttps://www.law.cornell.edu/wex/emergency_powers

2. Silverstein, Gordon, 2007, Encyclopedia of Governance, SAGE Publications, Available athttps://www.britannica.com/topic/emergency-powers

3. Bulmer, Elliot, 2018, Emergency Powers, International Institute for Democracy and Electoral Assistance, Available at http://aceproject.org/ero-en/emergency-powers-international-idea-2018

4. Anonymous, 2018, A Guide to Emergency Powers and Their Use, Brennan Center for Justice at New York University School of Law, Available at http://aceproject.org/ero-en/emergency-powers-international-idea-2018

5. Özbdun Ergun and Turhan Mehmet, 1995, Emergency Powers, European Commission For Democracy Through Law (VeniceCommission), Available at https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-STD(1995)012-e

6. Ferejohn, John, and, Pasquino, Pasquale, 2004, The law of the exception: A typology of emergency powers, Oxford University Press and New York University School of Law.

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