Definitions

reglementary

State of emergency

A state of emergency is a governmental declaration that may suspend certain normal functions of government, alert citizens to alter their normal behaviors, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale for suspending civil liberties. Such declarations usually come during a time of natural disaster, during periods of civil disorder, or following a declaration of war (in democratic countries, many call this martial law, most with non-critical intent). Justitium is its equivalent in Roman law.

In some countries, the state of emergency and its effects on civil liberties and governmental procedure are regulated by the constitution, or a law that limits the powers that may be invoked or rights that may be suspended during an emergency. In many countries, it is illegal to modify the emergency law or constitution during the emergency.

Use and viewpoints

Though fairly uncommon in democracies, dictatorial regimes often declare a state of emergency that is prolonged indefinitely for the life of the regime. In some situations, martial law is also declared, allowing the military greater authority to act.

For state parties that are signatories to the International Covenant on Civil and Political Rights (ICCPR), Article 4 permits states to derogate from certain rights guaranteed by the ICCPR in "time of public emergency". Any measures derogating from obligations under the convention, however, must only be to the extent required by the exigencies of the situation, and must be announced by the state party to the Secretary-General of the United Nations.

Some political theorists, such as Carl Schmitt, have argued that the power to decide the initiation of the state of emergency defines sovereignty itself. In State of Exception (2005), Giorgio Agamben criticized this idea, arguing that the mechanism of the state of emergency deprives certain people of their civil rights, producing his interpretation of homo sacer.

State-of-emergency law in selected countries

Australia

State-of-emergency legislation differs in each state of Australia.

In Victoria, the premier can declare a state of emergency if there is a threat to employment, safety or public order. The declaration expires after 30 days, and a resolution of either the upper or lower House of Parliament may revoke it earlier. Under the Public Safety Preservation Act, A declared state of emergency allows the premier to immediately make any desired regulations to secure public order and safety. However, these regulations expire if Parliament does not agree to continue them within 7 days. Also, under the Essential Services Act, the premier (or delegate) may operate or prohibit operation of, as desired, any essential service (e.g., transport, fuel, power, water, gas).

New Zealand

The government and local city council may, at some stages, issue a state of emergency through the region. This may suspend ordinary work and essential services if need be. The state of emergency in New Zealand does not have an expiry date. However, the acting prime minister or local mayor may lift the state of emergency after an initial review of the region's status.

Canada

The federal government of Canada can use the Emergencies Act to invoke a state of emergency. A national state of emergency automatically expires after 90 days, unless extended by the Governor-in-Council. There are different levels of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency, and War Emergency. The Emergencies Act replaced the War Measures Act in 1988. The War Measures Act was invoked three times in Canadian history, most controversially during the FLQ Crisis. A state of emergency can also be declared by provincial, territorial, and municipal governments.

Denmark

The police chief in a district can impose a zone in which people can be body searched without a specific suspicion. Such an order must be issued in writing, published, and imposed for a limited period. The police law (article 6) regulates this area. The normal procedure calls for assisting the suspect to a private area and stripping them.

If the police feel that a situation involving a crowd of people can get out of hand, they can call for mass arrest of all people in an area and detain them for six hours without charging them. This is called a precluding arrest.

Egypt

Egyptians have been living under an Emergency Law (Law No. 162 of 1958) since 1967, except for an 18-month break in 1980. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat. The law has been continuously extended every three years since 1981. Under the law, police powers are extended, constitutional rights suspended and censorship is legalized. The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.

France

Three main dispositions concern various kind of "state of emergency" in France: article 16 of the Constitution of 1958 allows, in time of crisis, "extraordinary powers" to the president. Article 36 of the same constitution regulates "state of siege." Finally, the April 3, 1955 Act allows the proclamation, by the Council of Ministers, of the "state of emergency" (État d'urgence en France). The distinction between article 16 and the 1955 Act concerns mainly the repartition of powers: whereas in article 16, the executive power basically suspend the regular procedures of the Republic, the 1955 Act permits a twelve-day state of emergency, after which a new law prorogating the emergency must be voted by the Parliament. These dispositions have been used at various times, in 1955, 1958, 1961, 1988 and 2005 (see below).

The state of emergency in France is framed by the Constitution of 1958, which states that it can be decreed by the Président de la république in the Council of Ministers, but must be confirmed by Parliament in order to be held after 12 days. State of emergency gives authorities the power to:

  • Regulate or forbid circulation and gathering in some areas (including by the use of curfew)
  • Close places of gathering
  • Conduct house-to-house searches, 24/7 without judicial oversight
  • Censorship

It may also give the military authority the power to act in place of civilian authorities, if a decree specifies it explicitly. It is unclear, however, how some of the legal possibilities can be implemented due to various legal changes since the 1950s.

Furthermore, article 16 of the Constitution gives the possibility, in exceptional cases, to give "extraordinary powers" to the head of government, leading to an effective "state of exception":

When the institutions of the Republic, the independence of the nation, the integrity of its territory, or the fulfillment of its international commitments are under grave and immediate threat and when the proper functioning of the constitutional governmental authorities is interrupted, the President of the Republic shall take the measures demanded by these circumstances after official consultation with the Prime Minister, the Presidents of the Assemblies, and the Constitutional Council.
He shall inform the nation of these measures by a message.

These measures must be prompted by a will to ensure within the shortest possible time that the constitutional governmental authorities have the means of fulfilling their duties. The Constitutional Council shall be consulted with regard to such measures.
Parliament shall meet ipso jure.
The National Assembly may not be dissolved during the exercise of emergency powers.

The conditions are both that the state is confronted to exceptional circumnstances and that the regular institutions are disrupted and can not effectively govern. This amendment to the Constitution of the Fifth Republic has been qualified as "liberticide" by critics. Used in 1961 during the Algerian War, the regular order of the Republican institutions were quickly restored after its invocation on April 23, 1961 — and was thus abusively prolonged by Charles de Gaulle, mainly to create judicial institutions (such as courts of exception).

In the judgment Rubin de Servens of March 2, 1962, the Conseil d'État judged that he could not pronounce itself on the invocation of article 16, as that constituted an "act of government". Furthermore, the State Council considered that it could only pronounce itself on reglementary texts, but not on legislative acts carried out during this period. Thus, a legislative measure (despite the fact that it is not precised what role the Parliament may have, but only that it is not to be dissolved) which breaches fundamental liberties can not be appealed against before the Conseil d'État.

Article 36 of the Constitution is concerned with the state of siege. The latter can be decreed by the Council of Ministers for a period of twelve days. Afterward, its prorogation request the approval of the Parliament. The state of siege may be declared in case of an "imminent peril resulting from a foreign war [guerre étrangère, or simply "war"] or an armed insurrection (une insurrection à main armée). Police powers are then transferred to military authorities, if the latter judge it necessary. Fundamental liberties may be restricted, such as the right of association, or legalization of searches in private places day and night, the power to expel people who have been condemned for common law matters or people who do not have residency on the territory, etc.

Since 1955, five states of emergency have been decreed:

  • In 1955 in Algeria due to independentist unrest
  • In 1958 due to the uprising in Algeria
  • In 1961 after the Generals' putsch (invocation of article 16 from April 23 to September 29, 1961)
  • In 1984 in New Caledonia due to independentist troubles
  • During the 2005 civil unrest in France, President Jacques Chirac declared a state of emergency on November 8, 2005. It was extended for three months on November 16 by the Parliament, which was dominated by the UMP majority. On December 10, France's highest administrative body, the Council of State, ruled that the three-month state of emergency decreed to guarantee calm following unrest was legal. It rejected a complaint from 74 law professors and the Green party, declaring that the conditions that led to the unrest (which began on October 27), the quick spread of violence, and the possibility that it could recur justified the state of emergency. The complaint challenged the state of emergency's necessity and said it compromised fundamental liberties.

In 1972, the Common Program of the Left (issued from an alliance between the Socialist Party and the Communist Party) proposed to repeal article 16. François Mitterrand's program in 1981 did not include this proposition. However, the Socialist government of Pierre Bérégovoy did include a reform of this article in its project of Constitutional reform in 1992, but the project was not implemented. Also in 1992, the Vedel Commission created by François Mitterrand proposed to give to the Conseil Constitutionnel (Constitutional Council), on the concerted initiative of the President of the Republic and the presidents of the Assemblies, the mission to observe that the conditions requested for the use of article 16 were in fact gathered. So far, no modification to the original article have been enacted.

Germany

The Weimar Republic constitution allowed states of emergency under Article 48 to deal with rebellions. Article 48 was invoked numerous times during the 14-year life of the Republic, sometimes for no reason other than to allow the government to act when it was unable to obtain a parliamentary majority.

After the February 27, 1933 Reichstag fire, an attack blamed on the communists, Adolf Hitler declared a state of emergency using Article 48, and then had President von Hindenburg sign the Reichstag Fire Decree, which suspended the Weimar Constitution for the whole duration of the Third Reich. Therefore, the Weimar Constitution wasn't repealed by Nazi Germany, but simply "indefinitely suspended". After the prohibition of the Communist Party of Germany on March 1, 1933, the NSDAP had hands free to vote the March 23, 1933 Enabling Act, which enabled Chancellor Adolf Hitler and his cabinet to enact laws without the participation of the Reichstag. These two laws signaled the implementation of the Gleichschaltung, the Nazis' institution of totalitarianism.

In the postwar Federal Republic of Germany, the Notstandgesetze states that some of the basic constitutional rights of the Grundgesetz may be limited in case of a state of defence (war), a state of tension (uprisings), or an internal state of emergency or disaster (catastrophe). These amendments to the constitution were passed on May 30, 1968 as a reaction to the resistance of the Ausserparlamentarische Opposition, the extraparliamentary opposition, despite fierce opposition by the German student movement.

Hong Kong

The Standing Committee of the National People's Congress can declare a state of emergency and deploy troops from the Hong Kong Garrison under the Law of the People's Republic of China on the garrisoning of the Hong Kong Special Administrative Region.

The Chief Executive of Hong Kong along with the Executive Council can prohibit public gatherings, issue curfew orders, prohibit the movement of vessels or aircraft and appoint special constable all under Chapter 245 ("Public Order Ordinance") of Hong Kong Law.

Hungary

According to the Hungarian Constitution, the National Assembly of Hungary can declare state of emergency in case of armed rebellion or natural or industrial disaster. It expires after 30 days, but can be extended. Most civil rights can be suspended, but basic human rights (such as the right to live, the ban of torture, and freedom of religion) cannot.

During state of emergency, the Parliament can not be disbanded.

India

In India, an external state of emergency was declared three times during wars:

In 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. Political opposition was heavily suppressed during the emergency. Civil liberties were suspended and a mandatory birth control program was introduced by the government. Confident about her chances of getting re-elected, Indira Gandhi relaxed the emergency and released dissidents. She then was trounced by a grand coalition in the 1977 elections.

Ireland

According to Article 28.3.3. of the Constitution of Ireland, "no article of the Constitution may be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law". The time of war or armed rebellion includes actions outside the state itself, and is not limited in time to the duration of the war or armed rebellion. A state of emergency was declared in 1939 at the outbreak of the Second World War, though Ireland was not a participant (The period was and is referred to as The Emergency in Ireland). This state of emergency was not technically lifted until 1972, and was succeeded by a second state of emergency to deal with the Troubles in Northern Ireland, which lasted until the IRA ceasefire in 1994.

Malaysia

In Malaysia, if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.

In the history of Malaysia, a state of emergency was declared by the then-colonial government of Britain. The state of emergency lasted from 1948 until 1960 to deal with the communists led by Chin Peng.

Thiery Rommel, the European Commission's envoy to Malaysia, told Reuters by telephone on November 13, 2007 (the last day of his mission) that, "Today, this country still lives under (a state of) emergency. Although not officially proclaimed as a state of emergency, the Emergency Ordinance and the Internal Security Act had allowed detention for years without trials.

Spain

In Spain, there are three degrees of state of emergency (estado de emergencia in Spanish): alerta (alert), excepción (exception[al circumstance]) and sitio (siege). They are named by the constitution, which limits which rights may be suspended, but regulated by the " Ley Orgánica 4/1981" (Organic Law).

United Kingdom

In the United Kingdom, the Monarch, the Privy Council, or the Prime Minister can make emergency regulations under the Civil Contingencies Act 2004 if there is a serious threat to human welfare, the environment, or in case of war or terrorism. These regulations last for seven days unless confirmed otherwise by Parliament.

The last time that a state of emergency occurred in the UK was in 1972, when Prime Minister Edward Heath invoked it in response to increasing industrial action.

United States

In the United States, there are several methods for government response to emergency situations. A state governor or local mayor may declare a state of emergency within his or her jurisdiction. This is common at the state level in response to natural disasters. Although the president, as head of the executive branch, has the authority to declare a state of emergency, the National Emergencies Act limits the president's ability to declare emergencies by requiring that they expire within two years unless specifically extended, and that the president specify in advance which legal provisions will be invoked. The International Emergency Economic Powers Act allows for the freezing of assets, limiting of trade, and confiscation of property during such an emergency.

A federal emergency declaration allows the United States Federal Emergency Management Agency (FEMA) to exercise its power to deal with emergency situations; federal assistance also becomes available to areas that are declared to be in a state of emergency. For FEMA, emergency declarations are different from the more common disaster declarations done for hurricanes and floods. Typically, a state of emergency empowers the executive to name coordinating officials to deal with the emergency and to override normal administrative processes regarding the passage of administrative rules.

The United States is officially in an ongoing (and effectively permanent) state of emergency declared by several Presidents due to multiple problems. An example is one which began on January 24, 1995 with the signing of Executive Order 12947 by President Bill Clinton. In accordance with the National Emergencies Act, the executive order's actual effect was not a declaration of a general emergency, but a limited embargo on trade with "Terrorists Who Threaten To Disrupt the Middle East Peace Process". This "national emergency" was expanded in 1998 to include additional targets such as Osama bin Laden, and has been continued to at least 2008 by order of President George W. Bush. There are a number of other ongoing national emergencies of this type, referenced at and , regarding for instance diamond trade with Sierra Leone. Especially noteworthy are the ongoing states of emergency declared on September 14, 2001 through Bush's Proclamation 7463, regarding the terrorist attacks of September 11, 2001, that declared on March 15, 1995 with respect to Iran, and that declared on November 14, 1979 regarding the Iran Hostage Crisis.

The U.S. Constitution states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. The constitution also provides an exemption from the privilege of a grand jury hearing for cases arising in the military when in service in a time of "public danger". These are the only emergency provisions in the constitution.

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of Maryland and some midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads", or those in the Union who supported the Confederate cause. Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps, and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan 71 US 2 1866 that the suspension was unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) only provided for suspension of habeas corpus if these courts are actually forced closed.

The Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer established that presidents may not act contrary to Acts of Congress during an emergency. In 1976, the National Emergencies Act set a limit of two years on emergency declarations unless the president explicitly extends them.

Examples

Ongoing

Past states of emergency

See also

Notes

References

  • . Excerpt online: "A Brief History of the State of Exception"
  • Walter Benjamin, Zur Kritik der Gewalt ("Critique of Violence")
  • Carl Schmitt, The Dictature and Political Theology
  • Conradin Wolf, Ausnahmezustand und Menschenrecht (2005)

External links

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