7

Emergency powers
Victor V Ramraj and Menaka Guruswamy
7.1 Emergency powers and constitutionalism
Emergency powers pose a serious challenge to one key objective of modern
constitutionalism— limiting state power. How, if at all, can a legal order respond
to an emergency within a constitutional framework? Is it consistent with the
general aims of constitutionalism for a constitution to authorize the suspension
of constitutional guarantees, in whole or in part, in times of emergency? There
are also important questions about the definition of ‘emergency’, for the
meaning ascribed to this idea and the power to decide when an emergency exists
are themselves contentious. The definition chosen affects the ability of a legal
order to respond to the emergency in a manner consistent with its fundamental
normative commitments. Basic questions about the nature of constitutional
government are never that far from seemingly innocuous questions about
emergency powers.
Modern constitutionalism may have formalized and institutionalized the
principles limiting the power of the sovereign within a professional bureaucratic
state. Yet, unwritten political and social norms still play an important role in
constraining government, even in times of emergency, in ways that are not
always apparent on an exclusively positivist or normative account of law. While
we might be tempted to think of the conundrum of emergency powers as posing
a challenge only to the integrity of modern, liberal– democratic constitutional
government, the challenge of remaining true to the virtues of good government
in the face of crisis has ancient roots. For example, in Ottoman times, the law of
the Shari’a imposed standards of governance ‘that, when violated, could result in
[the sovereign’s] dismissal or even assassination’ and that for ‘political power to
acquire any legitimacy, it had to meet these standards, and conduct itself in a
morally and legally responsible way’ (see Hallaq). And Confucian principles
have been said to include a ‘right of revolution … against tyrannical rulers even
in extreme situations’ (Chen 2004, 12)—a principle that resonates with John
Locke’s belief that the right to revolt against a tyrannical ruler provided the
ultimate constraint on the abuse of extraordinary powers such as the prerogative
—‘the Power of doing Publick good without a Rule’.1
It is also important from a legal–historical perspective to recognize the impact
of colonialism on the development of emergency powers. This can be seen, for
example, in the controversy over Jamaica Governor John Eyre’s brutal response
to the Morant Bay rebellion in 1865, which sparked a larger debate over the
limits of martial law (Kostal). Western legal thinking has also been shaped by
the experience of emergency powers in Weimar Germany, apartheid South
Africa, and Northern Ireland, the latter two again connected to colonialism. And
many contemporary discussions of emergency powers remain inextricably linked
to the 11 September 2001 attacks on the United States.
The chapter begins with a brief survey of the history of emergency powers and
some of the defining events that have shaped contemporary approaches to
emergency powers. It provides an analytic roadmap for approaching emergency
powers before outlining the formal or structural elements of constitutional
emergency powers and the substantive limits imposed on their exercise. The
chapter then considers the interplay between domestic and international legal
principles governing the exercise of emergency powers. It concludes by
reflecting on the relationship between emergency powers and modern
constitutionalism, and on the methodological challenges of comparative
constitutional law.
7.2 Approaching emergency powers
In our contemporary, post-colonial world order, a layer of formal legality
extends seamlessly around the globe, but the depth of the social penetration of
formal constitutional law differs dramatically. In some countries it has been said
that an unwritten cultural constitution (Eoseewong; Ginsburg) has more
influence than the formal written constitution and better explains the constraints
imposed on and experienced by government. This may be true in societies where
formal law has not penetrated deeply into the popular understanding of
government, or where—as in many fragile, post-conflict situations—the formal
institutions of government are simply too weak. It is important to bear in mind
the societal context in thinking about formal legal approaches to emergency
powers precisely because these powers are often invoked, when they are
formally invoked, in vastly different social and political contexts, and in
societies with distinct understandings of the importance of formal law (Mattei).
That said, within the formal framework of modern constitutional government,
two approaches to emergency powers have emerged whose provenance can be
traced, at least in part, to differences between common law and civil law
traditions. The first approach is based on the civil law tradition, which in turn
can be traced to the institution of a ‘constitutional dictatorship’ in Roman law.2
On this approach, emergency powers are expressly incorporated into and
governed by the formal provisions of the constitution. Under the Roman model
as it emerged over time, the consuls, in times of ‘grievous war or serious civil
unrest’, could, with the approval of the Senate, appoint a dictator with almost
absolute power, restrained in the duration of the appointment and the specificity
of purpose—the ultimate purpose being the restoration of the constitutional
order. The dictator was also dependent on the Senate for finances and had no
civil jurisdiction.
The modern successor of the Roman model was the French state of siege (état
de siege), which began as a military institution but was gradually transformed
into a legal institution for responding to crises within a constitutional framework.
On this model, as it evolved and migrated around the civil-law influenced world,
the circumstances that trigger the powers, the procedure by which they are
invoked, the body that is empowered to make decisions, the limits on those
powers, and the procedure for returning to ordinary constitutional government
are all governed by principles set out ex ante in the constitution itself. A clear
distinction is envisioned between ordinary constitutional government and the
extraordinary exercise of emergency powers under the constitution, a distinction
echoed in Article 48 of the Weimar constitution, which provided a legal path for
Adolf Hitler’s rise to power.
The common law approach is in some respects more complex, and in other
respects less defined, admitting of multiple variations. Common law
jurisdictions have, over time and to different extents, adopted many of the
characteristics of Roman law-influenced emergency power provisions in their
constitutions. But the common law approach to emergency powers was
historically characterized by the absence of a formal constitutional distinction
between ‘ordinary’ and ‘extraordinary’ modes of governance, and by the pre-
eminent role of the ordinary courts in policing the limits of the state’s response
to extraordinary circumstances, and, in contrast with the Roman and French
models, by the tendency, as one critic observes, ‘to work out arrangements in
each case on a trial and error basis, regardless of the delay and inefficiency this
may cause’ (Townshend, 198).
Within this broad framework, a further question arises as to whether, to the
extent that emergency powers are to be regulated ex ante by written law (rather
than ex post, through judicial review), the formal regulation should take statutory
or constitutional form. In some respects, this question results from local
circumstances, with few general features. For example, the US Constitution says
very little about emergency situations, doing no more than limiting the
suspension of habeas corpus to ‘cases of rebellion or invasion, the public safety
may require it’ (Art. I). In the US context, constitutional law scholars are divided
on whether a formal emergency powers provision should be introduced (putting
aside the effective impossibility of amending the US Constitution) or whether
statutory powers are sufficient.3 Even this seemingly insular debate resonates
elsewhere. For example, it has been suggested that China’s emergency law,
which limits the conditions in which emergency powers may be invoked, has the
potential to create a significant constraint on government power, even in a state
with a strong and largely unconstrained executive (deLisle).
7.3 Formal considerations
In approaching emergency powers, most modern constitutions will provide,
implicitly or explicitly, answers to the following formal questions: Who decides
when emergency powers may be invoked? Under what conditions may they be
exercised? What powers accrue when a state of emergency is declared? What
checks exist on the exercise of those powers? How does an emergency end?
7.3.1 Who decides
In many constitutions, modelled perhaps distantly on the Roman model, the
power to declare a state of emergency is expressly vested in the executive
branch, subject to ratification by the legislature, and with the French
Constitution serving as an archetype, South Africa’s Constitution offers an
alternative model, providing that a state of emergency ‘may be declared only in
terms of an Act of Parliament’ (s. 37(1)). In other constitutional contexts, the
answer to this fundamental question is more ambiguous, depending in part on
the nature and source of the threat. Indeed, much of the controversy around
martial law in the common law tradition concerns the answer to the ultimate
question of control of military power in response to domestic unrest
(Townshend). In the UK today (with its unwritten constitution), Parliament
provides the statutory basis for the government to respond to emergencies,
whether through counter-terrorism or civil emergencies legislation.
The aftermath of the 9/11 attacks in the United States saw a concentration of
power in the executive branch, with Congress, at least initially, granting the
President broad statutory powers to respond, and the President assuming broad
powers, which he viewed as rooted in the Constitution. But common interest in
strong presidential powers came under strain as the differing interpretations of
the source of those powers came under the scrutiny of the Supreme Court in its
first post-9/11 case, Hamdi v Rumsfeld,4 and, over time, as differences between
the White House and Congress appeared, the divided structure of US
government became more pronounced. In France, which also has a presidential
system of government, the Constitution vests the power to declare a state of
emergency in the President, ‘after formally consulting the Prime Minister, the
Presidents of the Houses of Parliament and the Constitutional Council’ (Art. 16),
and specifies that the National Assembly will continue to sit as of right and will
not be dissolved during the state of emergency. The advice given is non-binding,
in as much as the President is not required to follow it, but the President’s
powers are time limited.
7.3.2 Triggering conditions and definitions of emergencies
A second formal question concerns the triggering conditions—the conditions
under which an emergency may be declared. At one extreme is Schmitt’s view
that the most a constitution can do is to specify who decides; it cannot specify in
advance the circumstances in which emergency powers may be invoked
(Schmitt, 6–7). But most modern constitutions seek to do precisely that, to set
out those circumstances in advance. Consider Article 187 of the Interim
Constitution of South Sudan, setting out the following circumstances in which
the President may declare a state of emergency (subject to ratification by the
legislature): ‘upon the occurrence of an imminent danger, whether it is war,
invasion, blockade, natural disaster or epidemics, as may threaten the country, or
any part thereof or the safety or economy of the same’. China’s Constitution
allows the Standing Committee of the National People’s Congress to enact
emergency legislation, which, in addition to legislation ‘focused on the authority
to use force, to displace ordinary law, and to limit citizens’ rights’ under the Law
on Martial Law (deLisle, 358), now includes an Emergency Response Law in
2007, covering ‘natural disasters, accidents, and epidemics’ (Chen in Ramraj &
Thiuvengadam, 82).
Other constitutions have less to say in this respect. As noted earlier, the US
Constitution, which does not contain an emergency powers clause, allows
Congress to suspend habeas corpus when, in ‘cases of rebellion or invasion, the
public safety may require it’. Singapore’s Constitution allows Parliament to
enact emergency legislation in relation to threats of organized violence or against
the President or government, acts that ‘promote feelings of ill-will and hostility
between different races or other classes of the population likely to cause
violence’ or that attempt to change the law ‘otherwise than by lawful means’,
and acts ‘prejudicial to the security of Singapore’ (s. 149). In India, the
Constitution specifically provides for situations that qualify as ‘emergencies’.
War, external aggression, and armed rebellion can all trigger the proclamation of
an emergency (Art. 352). Less conventionally, an emergency may be declared
when the President is satisfied that the government of an individual state within
the country cannot be ‘carried on in accordance with the provisions of the
Constitution’ (Art. 356).5 In some jurisdictions, constitutionally entrenched
emergency powers provisions have been invoked in response to economic crises
(Negretto & Aguilar Rivera) and drug-related violence.6
In some jurisdictions, the triggering conditions for the invocation of
emergency powers are set out not in the constitution, but in ordinary legislation,
and sometimes in very precise terms. Canada’s Emergencies Act creates a
statutory framework to govern not only war and international emergencies, but
also ‘public welfare emergencies’ (defined to encompass ‘fire, flood, drought,
storm, earthquake or other natural phenomenon, disease in human beings,
animals or plants, or accident or pollution … that results or may result in a
danger to life or property, social disruption or a breakdown in the flow of
essential goods, services or resources, so serious as to be a national emergency’)
and ‘public order emergencies’, such as serious threats to the security of Canada.
In the context of the UK’s unwritten constitution, the Civil Contingencies Act
2004 similarly establishes a framework for the roles and responsibility of local
authorities in an emergency, while allowing, in Part II, for special legislative
measures in the most serious emergencies. Among the circumstances covered by
Part II of the Act are threats of ‘serious damage to human welfare’ (which is
defined in the Act) or to the environment, or war or terrorism that threatens
serious damage to the UK (s. 19).
7.3.3 Powers that accrue
Some constitutions specify the powers that accrue to the executive or other
bodies and the limits on those powers. The general, substantive legal principles
(non-derogation, proportionality) limiting emergency powers are considered in
detail later in this chapter. But a constitutional framework of emergency powers
might (1) transfer powers ordinarily exercised by one branch of government to
another; (2) authorize the use of powers or measures not ordinarily permitted
within the constitutional framework; or (3) permit the executive or other body to
derogate from fundamental constitutional rights or freedoms, in whole or in part.
For example, the Constitution of Trinidad and Tobago expressly provides
‘exceptionally’ for the detention of persons (s. 7(2)) and a specific review
procedure (s. 11) during a proclaimed public emergency. On the other hand,
some constitutions place strikingly few limitations on the powers that accrue.
The French Constitution, for example, provides only that the President may take
‘such measures as are required in the circumstances’ (Article 16).
7.3.4 Separation of powers: legislative and judicial checks
Emergencies alter the balance of separation of powers, since usually the
executive engages in actions that infringe on the domain of the legislature.
Executive actions usually impact well-established constitutional rights. The
respective roles of the various branches of government in relation to emergency
powers are therefore the subject of considerable academic controversy. For
example, Mark Tushnet argues that ‘the substantive law of emergency specifies
what the executive can do to whom when there are rationally indisputable major
threats to the continued stable operation of a democratic nation’s political and
social order’ and he considers the checks on emergency powers to be primarily
political rather than legal (Tushnet, 1452). Also rejecting the centrality of legal
checks, Oren Gross argues that extra-legal measures taken by public officials to
address extraordinary threats should be checked through democratic or political
mechanisms rather than by bending or diluting legal principles, such as the
prohibition on torture, to accommodate them (Gross 2003). In contrast, Bruce
Ackerman and William Scheuerman argue that the main checks on emergency
powers are found in formal political and legislative processes (Ackerman;
Scheuerman), while David Dyzenhaus and David Cole insist that the
responsibility for holding emergency power to account resides in the courts,
through judicial review (Dyzenhaus; Cole). These tensions are reflected in the
diversity of approaches taken by different constitutions to the separation of
powers in an emergency.
When the power to declare a state of emergency is vested in the executive
branch, some constitutions include formal legislative checks on the declaration
and on the exercise of emergency powers. For example, the constitution itself
may provide that the declaration of a state of emergency by the executive is
subject to legislative ratification within a specified period. Elsewhere, the
judiciary is formally assigned or, in constitutional practice, assumes a primary
role in reviewing the invocation of emergency powers, whether by the executive
or the legislature. The South African Constitution categorically provides that the
Court will decide the validity of the declaration of the state of emergency,
extension of emergency and validity of any legislation enacted or other action
taken in consequence of a declaration of emergency.7
Conversely, the Malaysian Constitution does not permit any court to entertain
or determine any application, question, or proceeding on any ground regarding
the validity of the proclamation or continuation of emergency or any law under
it.8 Likewise, the Constitution of Bangladesh allows for all fundamental rights
(Bill of Rights) to be suspended during an emergency, and also permits the
executive to suspend the right to move the courts in such times, as does Pakistan,
albeit in somewhat different terms.9 Given the weaknesses in both constitutions,
in tandem with the ability of the military regimes of both to stage coups and take
over political power, emergencies have been frequently proclaimed in
Bangladesh and Pakistan (Jalal; Siddiqa; Rizvi).
Courts that are formally prohibited by the text of a constitution from
reviewing emergency powers might yet draw on first principles and generalities
about the rule of law to find constitutional justifications for doing so. But even
when judicial review of the invocation or exercise of emergency powers is not
formally prohibited by the constitution, courts can be more or less deferential to
the executive. It is therefore important to distinguish the threshold question of
whether the courts have the formal power to review (and whether this matters),
from the question of whether they will or ought to defer to the executive on
questions of national security. When courts do review the exercise of emergency
powers, further questions arise as to the substantive principles they should adopt
(a question we consider in the next section).
7.3.5 Extension, lapse, and termination
While indefinite states of emergency are not uncommon (Israel, Malaysia and,
until recently, Egypt10 have been described as countries under a perpetual state
of emergency), some constitutions provide that a state of emergency will lapse
after a specified period if it is not renewed or extended by the legislature. For
example, East Timor’s Constitution provides that the suspension of fundamental
rights, freedoms, or guarantees in a state of siege or state of emergency ‘shall not
last for more than thirty days, without prejudice of possible justified renewal,
when strictly necessary, for equal periods of time’ (s. 25). In South Africa, a
declaration of a state of emergency, which is limited in the first instance to 21
days, lapses thereafter unless extended by the National Assembly for a period of
no more than three months at a time (s. 37(2)(b)). A first extension may be
obtained with the support of a simple majority, but subsequent extensions require
the support of at least 60 percent of the members of the Assembly. In a distant
echo of the Roman model, the Constitution of the Democratic Republic of East
Timor provides expressly that the authorities ‘shall restore constitutional
normality as soon as possible’ (s. 25). Some constitutions do not provide for a
lapse, nor do they specify how a state of emergency ends. For instance, as of
2011, Malaysia remains technically under a state of emergency proclaimed in
1969. That state of emergency was not rescinded even after the immediate
conditions that triggered the emergency (ethnic unrest in the wake of general
elections) had long since passed.
7.4 Substantive principles: non-derogation and
proportionality
Two substantive legal principles limit the extent to which emergency powers can
suspend constitutional rights: non-derogation and proportionality. These
constitutional principles reflect, and in many instances can be traced in part to,
the major international human rights instruments, including the International
Covenant on Civil and Political Rights (ICCPR) and the European Convention
on Human Rights (ECHR).
7.4.1 The principle of non-derogation
The principle of non-derogation holds that there is a core of fundamental rights
that may not be infringed or limited, even in an emergency.11 Although it is often
conceded in many constitutions, as it is in international human rights
instruments, that the state may derogate from its obligations in an emergency, it
is also acknowledged that certain essential protections and rights cannot be
derogated from (i.e. those protections/obligations are non-derogable). For
instance, the right against torture is generally regarded as a principle of jus
cogens, a peremptory norm not subject to derogation (Allain).
The principle of non-derogation can be found in the text of many modern
constitutions. For example, East Timor’s Constitution limits the extent to which
a state of siege can limit fundamental rights: ‘In no case shall a declaration of a
state of siege affect the right to life, physical integrity, citizenship, non-
retroactivity of the criminal law, defence in a criminal case and freedom of
conscience and religion, the right not to be subjected to torture, slavery or
servitude, the right not to be subjected to cruel, inhuman or degrading treatment
or punishment, and the guarantee of non-discrimination.’12 Similar limitations
can be found in Sudan (prohibiting derogation from the rights to life,
prohibitions against slavery and torture, right of non-discrimination on the basis
of race, sex, religion, and the right to fair trial),13 South Africa (prohibiting
derogation from, among others, the rights to equality, human dignity, life,
prohibitions against torture and slavery),14 and Russia (prohibiting limits on,
among others, the rights to life, dignity, privacy, appeals, against self-
incrimination, access to courts and counsel, and prohibitions on torture).15 The
Interim Constitution of Nepal, which is in force until a final constitution is
passed by the Constituent Assembly, provides that the rights to equality,
environment, health, social justice (among others) and the rights against torture,
exploitation, and exile cannot be suspended in an emergency.16 In some contexts,
the principle of non-derogation has a longer history, and has attracted
considerable judicial scrutiny. For example, according to the Supreme Court of
India, the constitutional prohibition on derogation from the rights against self-
incrimination, double-jeopardy, retroactive criminal legislation and the rights to
life and liberty17 was added to the Constitution to protect people from ‘executive
and legislative despotism’.18
In jurisdictions with newer constitutions, where the principle of non-
derogation has not been tested judicially, the international jurisprudence may be
helpful and, in some cases, is explicitly invoked by the constitutional text. For
example, Colombia prohibits derogation from or suspension of any human rights
or fundamental freedoms or international humanitarian laws in times of
emergency.19 But even apart from these explicit textual links, the work of
international law jurists might yet shed some light on the principle of non-
derogation in domestic constitutional law. The United Nations Human Rights
Committee’s General Comment No. 29 (24 July 2001) elaborates on the
derogation provision Article 4 of the ICCPR, setting out principles limiting
derogation under domestic law: that derogations are time bound (i.e. they must
be terminated as soon as the situation ceases to be a threat to the life of the
nation) (Gross 1998, 455); that the state remains bound by the principle of
legality and the rule of law20; and that the derogation can be in force only for the
duration of the proclaimed emergency.21 Whether the international jurisprudence
is ultimately embraced by domestic constitutional law will likely be a function of
a range of factors, including the degree of interplay between the domestic and
international legal orders—a point that we will return to in the final section.
7.4.2 The principle of proportionality
The principle of proportionality is a second critical principle that regulates the
conduct of states in times of emergency. This principle has been formulated in
different ways in the domestic and international case law, but it is expressed in
Article 4 of the ICCPR as providing that measures that derogate from
fundamental rights are permissible in a ‘time of public emergency which
threatens the life of the nation’ but only ‘to the extent strictly required by the
exigencies of the situation’.
For example, in Canada, the general proportionality test developed by the
Supreme Court of Canada is its jurisprudence on the Canadian Charter of Rights
and Freedoms, known as the Oakes test,22 has been used to determine whether,
in the event of a prima facie violation of a Charter right, that violation can be
justified in a free and democratic society. A finding of proportionality requires
‘(a) means rationally connected to the objective; (b) minimal impairment of
rights; and (c) proportionality between the effects of the infringement and the
importance of the objective’.23 In a case with parallels to emergency powers in
other jurisdictions, the Supreme Court of Canada, applying this test, found that a
procedure that permits the deportation of a foreign citizen or permanent resident
on national security grounds without providing the person access to some or all
of the information that formed the basis for the deportation, was disproportionate
since there were other ways ‘to protect sensitive information while treating
individuals fairly’ (para 70).
Similarly, in A and Others v Secretary of State for the Home Department,24
the House of Lords was asked to decide, under the Human Rights Act 1998,
whether the indefinite detention of foreign terrorist suspects under Part IV of the
Anti-Terrorism, Crime and Security Act 2001, in respect of which the United
Kingdom purported to derogate from the European Convention on Human
Rights, was permissible. The answer to that question turned on whether the UK’s
derogation was justified under Article 15 of the Convention on the ground that
the post-9/11 terrorist threat in the UK amounted to a ‘public emergency
threatening the life of the nation’ for which derogating measures were
permissible under Article 15 of the Convention ‘to the extent strictly required by
the exigencies of the situation’. With only Lord Hoffmann holding (in dissent)
that there was no threat to the life of the nation, the majority of the House of
Lords deferred to the government’s view of the threat. However, the majority
found that the indefinite detention of non-nationals was discriminatory: since the
legislation either detained indefinitely or allowed ‘non-UK suspected terrorists
to leave the country with impunity’ while ‘leaving British terrorists at large’ (at
para. 43), it was a disproportionate derogation from the right to liberty that was
‘not strictly required by the exigencies of the situation’.25 The Belmarsh case
eventually made its way to Strasbourg. And while earlier jurisprudence of the
European Court of Human Rights was largely deferential to state authorities in
cases involving national security (see, for example, the lines of cases on
Northern Ireland, beginning with Ireland v United Kingdom),26 the Strasbourg
Court showed little sign of deference in this case, affirming that ‘the derogating
measures were disproportionate in that they discriminated unjustifiably between
nationals and non-nationals’.27
7.5 Constitutional emergency powers and
international law
The preceding sections demonstrate the interplay between international legal
principles and domestic constitutional norms governing the exercise of
emergency powers in the formal structure of emergency powers and in the broad
principles seeking to limit them. This interplay takes place in three spheres:
constitution-making, constitutional principle, and in the global counter-terrorism
regime.
The interplay is evident in constitution-making, where formal structures and
broad principles relating to emergency powers have been adapted from a range
of international instruments such as the ICCPR and the ECHR, and from other
constitutions that have drawn inspiration from these sources. The international
principles, in turn, themselves drew support from the structure and principles of
domestic constitutionalism, reaching as far back (at least in the Western
tradition) as the Roman Republic. The development of substantive legal
principles demonstrates a similar tendency, with a vertical interplay between
domestic and international orders and a horizontal borrowing of principles and
approaches. The principle of proportionality is a good example of a principle
that moves between the international and domestic legal orders, and across
domestic constitutional boundaries.
Finally, the interplay between international and domestic constitutional
principles governing emergency powers can be seen in the aftermath of the 9/11
attacks on the United States and the interplay between an ‘international state of
emergency’ (Jayasuriya), international human rights law, and the domestic
constitutional order. In response to the 9/11 attacks, the Security Council of the
United Nations adopted Resolution 1373,28 and subsequent resolutions that
mandated counter-terrorism legislation and enhanced the UN sanctions regime
(initiated by Resolution 126729) by compelling member states to restrict the
movement and freeze the assets of suspected terrorists (see Roach 2011, 21–76).
These developments at the international level acknowledged the need for states
to complement international cooperation by taking measures to prevent and
suppress terrorism financing, leading to the development of a sophisticated
counter-terrorism financing regime co-administered by global governance bodies
such as the Financial Action Task Force, which influence domestic governments
and financial institutions by developing ‘soft law’ standards and principles, and
publicly monitoring compliance with them.
At the same time, the interplay between this global counter-terrorism regime
and domestic and regional legal orders is evident from the attempt by domestic
constitutional courts and regional bodies to remedy the procedural defects of the
UN sanctions regime. For example, the decision of the European Court of Justice
in Kadi and Al-Barakaat v Council of the European Union,30 which found the
direct implementation of the UN sanctions blacklist in the European Union to be
contrary to fundamental human rights in the absence of procedural safeguards
for individuals named on the list, along with similar domestic constitutional
decisions in Canada and the United Kingdom, collectively exposed flaws in the
UN sanction regime. The Security Council sought to remedy these flaws by
reforming its de-listing procedures.31 This example demonstrates the complex
interplay among different legal orders in the development and refinement of an
international ‘emergency powers’ regime, an interplay that raises important
questions about the nature of the legal order beyond the state in the context of a
supranational emergency.
7.6 Conclusion
This chapter opened with the claim that emergency powers raise fundamental
issues about law and constitutionalism. We can now discern several reasons why
this is so. For one, the invocation of emergency powers throws into question the
normative principles governing state conduct as well as the usual relationship
among the branches of government; as power is concentrated into one branch of
government, typically the executive, the role of the other branches in checking
that power comes under stress. More fundamentally, the invocation of
emergency powers throws into question the role of law itself in limiting state
power. The concentration of power in a particular branch or agency of the
government is an important test—perhaps even the ultimate ‘litmus’ test—of the
depth of a society’s commitment to the goal of moderating state power through
law; but it also invites a closer examination of the informal, social, and political
mechanisms that might complement or compete with formal constitutional
mechanisms in limiting power in times of emergency. And finally, emergency
powers give rise to fundamental questions of constitutional design by exposing
the sheer diversity of mechanisms, principles, and practices that constitutions
and constitutional actors employ in confronting these issues.
This diversity leads to a final point concerning comparative constitutional
methodology. We have chosen in this chapter to draw on a wide range of
examples, from liberal democracies with a stable legal system and a developed
legal infrastructure to post-conflict states struggling to establish stable, effective
institutions to deliver basic public goods, sometimes in the face of residual
political violence. From the experience of emergency powers in such diverse
settings, common themes might be identified at a high level of generality, but
prescription becomes more tenuous. Yet here, in the extreme circumstances that
trigger the exercise of emergency powers, we might find the aspiration of
constitutional government in its basic aspirational form—as it seeks to
subordinate sheer political power to a core set of limiting principles, formal or
informal, but appropriate to the particular social, political, and historical context,
that can be effectively enforced.
Notes
1 Two Treatises of Government, Laslett, P (ed) (Cambridge: CUP, 1988), 378;
on the right to revolt in such circumstances, see 380.
2 This and the subsequent paragraph rely on Rossiter.
3 See e.g. Ferejohn & Pasquino; Ackerman.
4 542 US 507 (2004). See also Rasul v Bush, 542 US 466 (2004), Hamdan v
Rumsfeld, 548 US 557 (2006), Boumediene v Bush, 128 SCt 2229 (2008).
5 Even so, pursuant to an amendment to the Constitution, the right to life
guaranteed by it cannot be suspended in any emergency. Therefore, habeas
corpus cannot be suspended in India when an emergency is proclaimed: see
below on the principle of non-derogation.
6 Ranald C. Archibald, ‘Trinidad and Tobago Declares Emergency Over Drug
Crimes’, The New York Times (24 August 2011). Emergency powers in
Trinidad and Tobago are governed by Part III of The Constitution of the
Republic of Trinidad and Tobago, Act 4 of 1976 (as amended).
7 Section 37 (3), Constitution of South Africa.
8 Article 150 (8)(a), Constitution of Malaysia.
9 Article 141 B and C of the Constitution of Bangladesh. Pakistan allows for
fundamental rights to be suspended, and allows the Executive to prohibit any
 challenges relating to the emergency in a court of law: Article 233,
Constitution of Pakistan.
10 As we were revising this chapter for publication, the status of Egypt’s
emergency laws remained ambiguous. The military-led post-Mubarak
government has yet to formally rescind those powers, promising only to
‘limit the use of extrajudicial arrests and detentions to cases of …
“thuggery”’ (‘Egypt Military Council Party Curbs State of Emergency Law’,
The New York Times, 24 January 2012).
11 ICCPR, art. 4; ECHR, art. 15(2). The non-derogable rights in the ICCPR
include the right to life (Art 6), right to freedom from torture, cruel and
degrading treatment (Art 7), freedom from slavery (Art 8), the right against
punishment for breach of contract (Art 11), the unenforceability of
retroactive legislation (Art 16), freedom of thought, conscience and religion
(Art 18), and right not to be subject to death penalty (Art 6).
12 Section 25(5).
13 Article 188, Constitution of Sudan.
14 Section 37, Constitution of South Africa.
15 Article 56, Constitution of Russia.
16 Article 143 (7), Interim Constitution of Nepal.
17 Articles 20 and 21 cannot be derogated from: see Constitution of India,
Article 359. This, the Supreme Court of India declared, has been added into
the Constitution by subsequent amendments to protect people from
‘executive and legislative despotism’ (State of Maharashtra v Bhairao
Punjabrao Gawande, (2008) 3 SCC 613, para. 23.
18 State of Maharashtra v Bhairao Punjabrao Gawande, (2008) 3 SCC 613, at
para. 23.
19 Article 214, Constitution of Colombia. The Constitution also explicitly states
that international treaties that prohibit limitations on their provisions in times
of emergency that have been ratified by Colombia have priority: Article 93.
20 General Comment No. 29 States of Emergency (Article 4)
CCPR/C/21/Rev.1/Add.11 at para 16.
21 Ibid, para 4.
22 [1986] 1 SCR 103.
23 Charkaoui v Canada (Citizenship and Immigration) [2007] 1 SCR 350.
24 [2005] 1 AC 68.
25 This decision marked a departure from its deferential approach in the World
War II case, Liversidge v Anderson, [1942] AC 206 (HL).
26 [1978] ECHR 1.
27 A and others v United Kingdom, Application No. 3455/05 (19 February
2009), para 190.
28 SC Res 1373, UN Doc S/RES/1373 (28 September 2001)
29 SC Res 1267, UN Doc S/RES/1267 (15 October 2009).
30 (3 September 2008), C-402/05 P & 415/15 P.
31 SC Res 1904, UN Doc S/RES/1904 (17 December 2009).
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Additional reading
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Protecting Rights During States of Emergency (Philadelphia: University of
Pennsylvania Press).
Gross, O & Ní Aoláin, F (2006). Law in Times of Crisis: Emergency Powers in
Theory and Practice (Cambridge: Cambridge University Press).
Ramraj, VV (ed) (2008). Emergencies and the Limits of Legality (Cambridge:
Cambridge University Press).