Providing For The Unexpected: Constitutional Emergency Provisions

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Providing for the Unexpected: Constitutional Emergency Provisions
Article · January 2004
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PROVIDING FOR THE UNEXPECTED:
CONSTITUTIONAL EMERGENCY PROVISIONS
By Oren Gross∗
I. INTRODUCTION: THE REVOLUTION THAT WASN’T
Much fanfare has been made of the “constitutional revolution” in Israel,1

which was ushered in 1992 with the enactment of Basic Law: Human
Dignity and Liberty and Basic Law: Freedom of Occupation.2 Yet, 1992 saw
another potentially significant change in Israeli law. However, that other
change attracted much less attention despite its promise. I refer to Articles 49
and 50 of Basic Law: The Government (“BLG”) that deal with states of
emergency.3
Since its creation in 1948, the State of Israel has been under an
unremitting state of emergency. What started off as a temporary, transition
mechanism to be operative only as long as the War of Independence was
being fought,4 became a permanent feature in the life of the State. More than
fifty-five years after its introduction, the state of emergency is still an
∗ Associate Professor and Vance K. Opperman Research Scholar, University of Minnesota

Law School (USA). My thanks to F. Ni Aolain for useful comments on earlier drafts of
this work and to S. Thorpe, M. Rumsey, T. Hill, and M. Sela for their invaluable research
assistance.
1 See, e.g., C.A. (Civil Appeal) 6821/93, United Mizrachi Bank Ltd. v. Migdal Coop. Vill.,
49(4) Piskei Din (Reports of the Israel Supreme Court; hereinafter: P.D.) 221, 352 (Barak
J.P.); A. Barak, “The Constitutional Revolution: Protected Human Rights”, 1 Mishpat
U'Mimshal (Law & Government in Israel) 9, 11 (Hebrew, 1992-93); D. Kretzmer, “The
New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?”,
26 Israel L. Rev. 238 (1992). But see R. Gavison, “The Constitutional Revolution: A
Reality or a Self-Fulfilling Prophecy?”, 28 Mishpatim (Hebrew Univ. L. Rev.) 21
(Hebrew, 1997). See also R. Hirschl, “Israel’s ‘Constitutional Revolution’: The Legal
Interpretation of Entrenched Civil Liberties In An Emerging Neo-Liberal Economic
Order”, 46 Am. J. Comp. L. 427 (1998).
2 Basic Law: Human Dignity and Liberty, [1992] Sefer Hahukim (Principal Legislation;
hereinafter: S.H.) 150, as amended in 1994 Basic Law: Human Dignity and Liberty,
[1994] S.H. 90. Basic Law: Freedom of Occupation, [1992] S.H. 60. This Basic Law was
later repealed and replaced by Basic Law: Freedom of Occupation, [1994] S.H. 90.
3 Basic Law: The Government, [1992] S.H. 214. This Basic Law was later repealed and
replaced by Basic Law: The Government, [2001] S.H. 158. Arts. 49 and 50 were replaced
by Arts. 38 and 39 of the 2001 Basic Law. Further references in this article will be to the
2001 Basic Law. For a recent general discussion see B. Bracha “Checks and Balances in a
Protracted State of Emergency – the Case of Israel” in this Volume.
4 See M. Hofnung, Israel – Security Needs vs. The Rule of Law 52 (1991).
1
2 ISRAEL YEARBOOK ON HUMAN RIGHTS
integral part of the Israeli legal terrain. Some highly troubling features, in
addition to its extended duration,5 characterized this emergency regime prior
to the enactment of the BLG. Under the legal structure put in place by
Article 9(a) of the Law and Administration Ordinance of 1948, once an
emergency had been declared, and until such declaration was revoked, the
government enjoyed extremely broad emergency powers, enabling it to
govern by decree. A startling example was the power vested in government
to alter, modify, or suspend the application of any piece of primary
legislation, i.e., legislation promulgated by the Knesset, by way of
government-issued emergency regulations.6 In fact, emergency regulations
could change or suspend even provisions of any Basic Law, unless such
provisions had been entrenched against such encroachment.7 Second, the
Knesset had practically no control over the declaration of a state of
emergency.8 In theory it was up to the Knesset to declare a state of
emergency, but since the original declaration of May 1948 has never been
revoked this became a meaningless limitation on governmental resort to
emergency powers. In theory, too, emergency regulations could only have
been promulgated for three months, the thought being that after such time, if
still needed, their further extension would be the subject of the ordinary
legislative process. But practice witnessed almost automatic renewals of
many such regulations, as well as the enactment of a complex web of
emergency legislation.9 Finally, once a state of emergency had been
5 On the problem of entrenched states of emergency see e.g., O. Gross, “ ‘Once More unto
the Breach’: The Systemic Failure of Applying the European Convention on Human
Rights to Entrenched Emergencies”, 23 Yale J. Int’l L. 437 (1998); F. Ni Aolain, “The
Fortification of an Emergency Regime”, 59 Alb. L. Rev. 1353, 1357 (1996); O. Gross & F.
Ni Aolain, “From Discretion to Scrutiny: Revisiting the Application of the Margin of
Appreciation Doctrine in the Context of Article 15 of the European Convention on
Human Rights”, 23 Hum. Rts. Q. 625 (2001).
6 Art. 9(a) of the Law and Administration Ordinance-1948, 1 Laws of the State of Israel
(English Version of Principal Legislation; hereinafter: L.S.I.) 7.
7 Thus, for example, Art. 12 of the Basic Law: Human Dignity and Liberty provides that:
This Basic Law cannot be varied, suspended or made subject to conditions by
emergency regulations; notwithstanding, when a state of emergency exists, by virtue
of a declaration under section 9 of the Law and Administration Ordinance, 5708-
1948, emergency regulations may be enacted by virtue of said section to deny or
restrict rights under this Basic Law, provided the denial or restriction shall be for a
proper purpose and for a period and extent no greater than is required.
8 Hofnung, supra note 4, at 55-56.
9 See, e.g., M. Kohn, “ ‘Patchwork’ Emergency Legislation, 29 Mishpatim 623 (1998). See
also Study of the Implications for Human Rights of Recent Developments Concerning
Situations Known as States of Siege or Emergency, U.N. Commission on Human Rights,
35th Sess., Agenda Item 10, at 29, U.N. Doc. E/CN.4/Sub.2/1982/15 (1982) (noting that a
CONSTITUTIONAL EMERGENCY PROVISIONS 3
declared, and for the duration of such a declaration, the Knesset had little
control over governmental exercise of its emergency powers.
The emergency provisions contained in the BLG were supposed to
address many of the apparent flaws of the previous system. They set forth a
scheme under which it is left to the Knesset to declare a state of emergency
for a period not exceeding one year. Should the emergency last beyond that
period, renewed declaration by the Knesset, while possible, is mandatory if
the declaration is to remain valid.10 Thus, the BLG provisions were supposed
to prevent a situation where a state of emergency is declared and such
declaration is not subject to further periodic scrutiny by the legislature.
While retaining practically intact the sweeping powers that the government
enjoyed under the prior legislation when a state of emergency is declared
and is in force,11 the BLG establishes important limitations that are designed
to curb abuse of power by the government. Significantly, the new
constitutional scheme was designed to reintroduce the Knesset as a
meaningful player in the context of states of emergency. Thus, it calls for
Knesset review of the need to declare a state of emergency at least on an
annual basis.12 It vests in the Knesset the power to revoke such declaration.13
It also forces the Knesset to address emergency regulations issued by the
government and imposes upon the legislature the burden of affirmatively
deciding whether to extend such regulations beyond an initial period of three
months.14 Thus, the BLG introduces new rules of parliamentary supervision
over the executive throughout the life of any given emergency, while at the
same time limiting the duration for which an emergency declaration may be
valid. Finally, the BLG explicitly introduced the principle of proportionality
into the Israeli legal discourse concerning emergency powers, by requiring
that “[e]mergency regulations shall not be enacted, nor shall arrangements,
complex state of emergency is characterized by “the great number of parallel or

simultaneous emergency rules whose complexity is increased by the ‘piling up’ of
provisions designed to ‘regularize’ the immediately preceding situation and therefore
embodying retroactive rules and transitional regimes”).
10 Art. 38(b) of BLG. Note that the BLG recognizes the possibility of a governmental
declaration of a state of emergency if the government “ascertains that a state of
emergency exists in the State and that its urgency necessitates the declaration of a state of
emergency, even before it becomes possible to convene the Knesset”. Art. 38(c) of BLG.
However, such declaration expires within seven days unless previously approved (or
revoked) by the Knesset. Id.
11 Including the ability of government to alter or suspend temporarily any law by way of
emergency regulations (Art. 39(e) of BLG). Note, however, that the BLG itself is immune
from such alteration, change or suspension (Art. 41 of BLG).
12 Art. 38(b) of BLG.
13 Art. 38(e) of BLG.
14 Art. 39(f) of BLG.
measures and powers be implemented in their wake, except to the extent

warranted by the state of emergency” (emphasis added).15 In doing so, it
explicitly opened the door to legislative-style judicial adjudication in the
sensitive area of emergencies.16 The extent to which judges are willing to
use the full thrust of this “powerful tool”17 is, of course, a different matter.
Despite its promise, the new framework for emergency regime enshrined
by the BLG has, so far, not lived up to its potential. In practice, little change
seems to have taken place since the enactment of the Basic Law. There may
now be some additional legal hoops that the government must jump through
in order to renew the declared state of emergency. There may be periodic
calls for making the annual review process more effective and meaningful
and arguments made that the state of emergency ought to be lifted. But the
overall impression is that no significant change has taken place. The state of
emergency continues uninterrupted. Renewals of the declaration of state of
emergency have failed to invoke a great deal of debate in the Knesset. In this
respect, emergency government is the norm.18
This brief overview of the law pertaining to states of emergency in Israel
raises many important questions such as what other alternative constitutional
models may be available in order to produce a workable framework within
which to deal with emergencies and crises, and how do such models work in
practice. The phenomenon of emergencies forces nations to come to grips
with two issues pulling in opposite directions. On the one hand, the natural
15 Sec. 39(e) of BLG. See also H.C. 6971, 6972/98, Paritzki v. Israel, 53(1) P.D. 763; H.C.
2994/90, Poraz v. Israel, 44(3) P.D. 317. See also A. Barak, “Forward: A Judge on
Judging: The Role of a Supreme Court in a Democracy”, 116 Harv. L. Rev. 16, 147-48
(2002) (discussing the concept of proportionality); V.C. Jackson, “Ambivalent Resistance
and Comparative Constitutionalism: Opening up Conversation on Proportionality”, 1 U.
Pa. J. Const. L. 583 (1999); J. Oraá, Human Rights in States of Emergency in
International Law 140-70 (1992) (principle of proportionality in the context of derogation
from rights protected under international human rights conventions); S.R. Chowdhury,
Rule of Law in a State of Emergency 101-19 (1989) (same).
16 See T.C. Grey, “Judicial Review and Legal Pragmatism”, 38 Wake Forest L. Rev. 473,
481 (2003) (use of proportionality tests intertwined with “constitutional adjudication
[becoming] more openly legislative in style”).
17 Barak, supra note 15, at 148 (noting that “proportionality serves as a powerful tool for a
judge to realize his role in a democracy”.).
18 Prompted by general distrust of the Nixon Administration’s foreign and domestic policy,
U.S. Senators Mathias and Church investigated the nearly continuous state of emergency
that had existed in the United States since 1933. Upon discovering nearly 470 pieces of
emergency power legislation that remained in force, they commented that “[e]mergency
government has become the norm”. Special Senate Comm. on Nat’l Emergencies &
Delegated Emergency Powers, 93d Cong., A Brief History of Emergency Powers in the
United States, at v (F. Church & C. McC. Mathias eds., 1974).
drive is for the constitutional arrangements to ensure sufficient powers to

government so that it may meet any type of future exigency. On the other
hand, the desire is to keep such expansive powers within some framework of
external limitations (pertaining either to the substance of such powers or to
the form of their application or both).19 States differ in their constitutional
approach to this basic conundrum.
This article seeks to examine in brief some of the general patterns
revealed in many constitutional arrangements around the world in their
treatment of emergencies.20 The focus is on constitutional provisions dealing
with emergencies and with emergency powers. I seek to explore existing
constitutional emergency arrangements while attempting to classify some of
their important attributes into meaningful categories. My aim is to try and
understand the various constitutional options with respect to such questions
as: (1) how (and whether) to define a state of emergency in the constitutional
document; (2) who has the power and authority to declare a state of
emergency (and to terminate such a declaration); (3) what political and
judicial control (if any) exists under the constitutional framework over the
use of emergency powers; and (4) what are the legal ramifications of
declaring a state of emergency with respect, for example, to the protection of
individual rights and civil liberties and the possibility of suspending the
constitution, in whole or in part.
Before going any further it is important to disclose fully the limited scope
of the project undertaken below. First, the article deals only with
constitutional arrangements. Hence, with few notable exceptions, I do not
examine statutory schemes pertaining to domestic emergency regimes
regardless of how important such schemes may be.21 Second, the focus is on
19 See, e.g., F.M. Watkins, “The Problem of Constitutional Dictatorship”, 1 Pub. Pol’y 324,
343-44 (C.J. Friedrich & E.S. Mason eds., 1940).
20 The constitutional arrangements examined for this study are of the following countries:
Albania, Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Belarus,
Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Cambodia, Canada, Chile,
China, Colombia, Congo, Croatia, Cyprus, Czech Republic, Denmark, Dominican
Republic, Ecuador, Estonia, Ethiopia, Guatemala, Fiji, Finland, France, Germany, Greece,
Hungary, India, Ireland, Israel, Italy, Japan, Latvia, Lithuania, Luxembourg, Macedonia,
Madagascar, Malaysia, Malta, Mauritania, Mexico, Mongolia, Namibia, Nepal,
Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Poland,
Portugal, Romania, Russia, Rwanda, Singapore, Slovakia, Slovenia, South Africa, South
Korea, Spain, Sweden, Switzerland, Taiwan, Thailand, Tunisia, United Kingdom, United
States, Venezuela, Zambia.
21 For recent surveys of the statutory terrain pertaining to states of emergency see, e.g.,
International Helsinki Federation For Human Rights, Anti-Terrorism Measures, Security
and Human Rights (2003) (review of developments in Europe, Central Asia and North
America in the Aftermath of September 11); J.D. Zelman, “Recent Developments in
domestic legal systems rather than on international or regional

arrangements.22 Third, the focus of this study is on the law in the books
rather than the law in action (again, subject to certain exceptions). I seek to
understand constitutional arrangements independent from how those
arrangements have been operating in practice. Fourth, the structures
discussed below are “constitutional.” I do not intend here to discuss the
possibility of extra-legal, and perhaps extra-constitutional, government
actions and measures that are aimed at responding to crises.23 Finally, the
purpose of this article is to sort out constitutional emergency regimes and
classify them into certain meaningful categories.
II. EXISTENCE OF CONSTITUTIONAL EMERGENCY PROVISIONS
Different constitutional systems differ greatly in their treatment of the

subject matter of emergency powers. Most modern constitutions contain
explicit, frequently detailed, emergency provisions.24 The European
continental legal system with its emphasis on statutory codification and its
concept of the “state of siege” as an emergency mechanism underlies the
great bulk of modern constitutional systems.25
While explicit constitutional reference to emergencies is common, it is by
no means universal. The Constitution of the United States is almost entirely
devoid of references to states of emergency and to emergency powers.26
International Law: Anti-Terrorism Legislation – Part One: An Overview”, 11 J.

Transnat’l L. & Pol’y 183 (2001); J.D. Zelman, “Recent Developments in International
Law: Anti-Terrorism Legislation – Part Two: The Impact and Consequences”, 11 J.
Transnat’l L. & Pol’y 421 (2002).
22 For a discussion of international and regional jurisprudence pertaining to states of
emergency see the sources cited supra note 5. See also F. Ni Aolain, “The Emergence of
Diversity: Differences in Human Rights Jurisprudence”, 19 Fordham Int’l L.J. 101
(1995).
23 For a detailed discussion of this topic see O. Gross, “Chaos and Rules: Should Responses
to Crises Always Be Constitutional?”, 112 Yale L.J. 1011 (2003). See also M. Tushnet,
“Defending Korematsu?: Reflections on Civil Liberties in Wartime”, 2003 Wis. L. Rev.
273 (2003).
24 See, e.g., European Commission for Democracy through Law, Emergency Powers 4-5
(1995)(“Emergency Powers”).
25 Whereas the traditional common law mechanism for dealing with emergencies – martial
law – had (at least in its classical form) no statutory basis, the state of siege is premised
on a relatively detailed constitutional and statutory framework. See generally, M. Radin,
“Martial Law and the State of Siege”, 30 Cal. L. Rev. 634 (1942).
26 Other examples of the same are the Democratic Constitution of Japan (May 3, 1947), the
Coordinated Constitution of Belgium, and the Constitution of the Czech Republic. Based
on the American constitutional model as well as on the Charter of the United Nations, the
Indirect reference to emergencies may only be found in two clauses - Article

I, Section 8, Clause 15 which vests the power in Congress “[t]o provide for
calling forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions”, and Article I, Section 9, Clause 2 which
provides that “[t]he 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”. Although certain other clauses mention terms such as “war”,
or “time of war”, none attaches special powers to any branch of government
in the event of such exigencies.27 However, this omission of emergency
provisions is limited to the federal level. Unlike the Federal Constitution,
many State constitutions contain emergency provisions.28
Japanese Constitution does not contain emergency provisions or, indeed, any provisions
dealing with acts of war or martial law. However, Art. 71 of the Japanese Police Law
authorizes the Prime Minister to declare a state of “national emergency” and assume
direct control over Japan’s police. See L.W. Beer, “Peace in Theory and Practice Under
Article 9 of Japan’s Constitution”, 81 Marq. L. Rev. 815, 826 (1998). While the
Constitution of Belgium is silent on the issue of emergency, it does provide that “The
Constitution may not be wholly or partially suspended” (Art. 187) as well as state that no
constitutional revision may be undertaken or pursued “during times of war or when the
Houses are prevented from meeting freely on federal territory”. Art. 196.
27 See, United States Constitution, Art. I, Sec. 8, Clause 11 (Congress’ power to declare
war); Art. III, Sec. 3, Clause 1 (the crime of Treason); Third Amendment (prohibition on
the quartering of soldiers in private premises); Fifth Amendment (exemption from the
requirement of Grand Jury). It ought to be noted that other provisions of the Constitution
concern the Armed Forces (including Congress’ power to raise and support Armies, and
the President’s Commander in Chief power). Others yet may bear an indirect influence on
the issue at hand. See e.g., H.P. Monaghan, “The Protective Power of the Presidency”, 93
Colum. L. Rev. 1, 32-38 (1993); G. Winterton, “The Concept of Extra-Constitutional
Executive Power in Domestic Affairs”, 7 Hastings Const. L.Q. 1, 24-35 (1979). One
result of this lack of a comprehensive constitutional emergency scheme has been the
emergence of an inherent powers doctrine. See Gross, supra note 23, at 1066-68.
28 By way of examples one is referred to Amendment 7 of the Constitution of Arkansas;
Constitution of the State of California, Art. xiiib, Sec. 3(c) and Art. xiv, Sec. 2;
Constitution of Colorado, Art. v, Sec. 25a and Art. x, Sec. 20, and see also in this context
C.R.S. 24-77-104 (1996); 24-77-105 (1996); Constitution of Connecticut, Art. iii, Sec. 2;
Art. xi, Sec. 3; Constitution of Delaware, Art. xvii, Sec. 1; Constitution of Florida, Art. ii,
Secs. 2 and 6, Art. vi, Sec. 5, Art. vii, Sec. 18; Constitution of Georgia, Art. iii, Sec. vi,
para. ii, Art. v, Sec. ii, para. vii, Art. vii, Sec. i, para. ii; Constitution of Hawaii, Art. vii,
Sec. 13; Constitution of Idaho, Art. iii, Sec. 22 and 27; Constitution of Indiana, Art. 4,
Secs. 18 and 28; Constitution of Kansas, Art. 2, Sec. 15 and Art. 15, Sec. 13; Constitution
of Kentucky, Secs. 55 and 158; Constitution of Louisiana, Art. iii, Sec. 2(c), Art. iv, Sec.
5, Art. vii, Sec. 7, and Art. xii, Sec. 11; Constitution of Maine, Art. 4, part 3, Sec. 16 and
Art. 9, Sec. 17; Constitution of Maryland, Art. ii, Sec. 10a; Art. iii, Sec. 34; Art. xvi, Sec.
2; Constitution of Massachusetts, Art. xlvii; Art. lxxxiii; Constitution of Michigan, Art.
iv, Sec. 39; Art. ix, Sec. 27; Constitution of Mississippi, Art. iv, Sec. 103; Constitution of
It is also worth noting that some national constitutions, while providing

for a special type of emergency regime in the case of war, do not specify
constitutional emergency arrangements for events that fall short of war.29
III. DEFINING EMERGENCIES
Defining a state of emergency in advance is no easy task.30 Furthermore, it is

not at all clear that even if a working definition of “emergency” could be
formulated, it would stand the test of actual exigencies. Emergency is an
“elastic concept”.31 The difficulty of defining it in advance was captured by
Alexander Hamilton when he wrote that
Missouri, Art. iii, Secs. 37 and 46(a); Art. x, Sec. 16, 18(e) and 19; Constitution of
Montana, Art. iii, Sec. 2; Constitution of Nebraska, Art. 3, Secs. 27 and 29; Constitution
of Nevada, Art. 4, Secs. 18 and 37; Constitution of New Hampshire, part 2, Art. 5-a;
Constitution of New Mexico, Art. iv, Secs. 2 and 6; Constitution of New York, Art. I,
Sec. 17; Art. iii, Sec. 25; Art. xiii, Sec. 13; Constitution of North Carolina, article v,
sections 3 and 4; Constitution of North Dakota, Art. 4, Sec. 13; Art. 11, Sec. 7;
Constitution of Ohio, Art. ii, Secs. 1d, 37 and 42; Constitution of Oklahoma, Art. v, Secs.
58 and 63; Art. xxiii, Sec. 4; Constitution of Oregon, Art. 3, Sec. 3; Art. 4, Secs. 10a, 19
and 28; Constitution of Puerto Rico, Art. ii, Sec. 18; Art. vi, Sec. 17; Constitution of
Rhode Island, Art. 6, Sec. 21; Art. 9, Sec. 17; Constitution of South Carolina, Art. xvii,
Sec. 12; Constitution of South Dakota, Art. iii, Secs. 22 and 29; Constitution of Texas,
Art. iii, Secs. 39, 49a and 62; Art. viii, Sec. 22; Constitution of Virginia, Art. iv, Sec 13;
Constitution of Washington, Art. ii, Sec 42; Constitution of West Virginia, Art. vi, Sec.
54; Constitution of Wisconsin, Art. iv, Sec 34.
29 See, e.g., Art. 78 of the Italian Constitution which provides that: “Chambers are
competent to declare war and assign the necessary powers to government”. However, it is
worth noting that Art. 77(2) of the Italian Constitution recognizes the power of the
government to issue provisional measures with the force of laws (i.e., decree laws), “as an
exception by necessity and urgency”. No further explanation can be found as to what
might constitute such “necessity and urgency”. See also Ch. 13 of the Constitution of
Sweden. See also Emergency Powers, supra note 24, at 4.
30 “[N]o statute defines a national emergency ... . The test for when a national emergency
exists is completely subjective—anything the President says is a national emergency is a
national emergency ...”. Note, “The National Emergency Dilemma: Balancing the
Executive’s Crisis Powers with the Need for Accountability”, 52 S. Cal. L. Rev. 1453,
1458–59 (1979).
31 H.P. Lee, Emergency Powers 4 (1984); see also Ningkan v. Government of Malaysia,
[1970] A.C. 379, 390 (“[T]he natural meaning of the word [emergency] itself is capable of
covering a very wide range of situations and occurrences, including such diverse events as
wars, famines, earthquakes, floods, epidemics and the collapse of civil government”.);
Bhagat Singh & Others v. The King Emperor, A.I.R., [1931] P.C. 111, id. (“A state of
emergency is something that does not permit of any exact definition. It connotes a state of
matters calling for drastic action ... .”). Moreover, as the International Law Association
maintained,
it is impossible to foresee or to define the extent and variety of national

exigencies, and the correspondent extent and variety of the means which
may be necessary to satisfy them. The circumstances that endanger the
safety of nations are infinite, and for this reason no constitutional shackles
can wisely be imposed on the power to which the care of it is
committed.32
How, then, do drafters of national constitutions respond to this difficulty?

The majority of constitutions examined in preparing this study differentiate
among several types of emergencies. Distinctions are, by and large, based on
the factual circumstances under which a declaration of a particular type of
emergency regime may be constitutionally permissible.33 Such
classifications affect not only the methods by which a particular emergency
may be declared and the duration for which such proclamation may hold
valid, but also matters such as the nature, extent and scope of governmental
emergency powers, and the possibility of derogating from constitutional
rights and safeguards.
Many constitutions establish a dual structure of emergency regimes.
Under the Constitutions of The Netherlands and Portugal, for example, there
are two possible types of emergencies. The Dutch Constitution authorizes
the declaration of a “state of war” and a “state of emergency”.34 The
[i]t is neither desirable nor possible to stipulate in abstracto what particular type or
types of events will automatically constitute a public emergency within the meaning
of the term; each case has to be judged on its own merits taking into account the
overriding concern for the continuance of a democratic society.
ILA Paris Report 59 (1984), quoted in Oraá, supra note 15, at 31.
32 The Federalist No. 23, at 153 (A. Hamilton) (C. Rossiter ed., 1961). This inherent
difficulty has led some scholars to conclude that formulating an abstract definition of
emergency may be futile or unnecessary. See J. Hatchard, Individual Freedoms and State
Security in the African Context: The Case of Zimbabwe 2 (1993); Lee, supra note 31, at 5.
33 I found only one constitution that attempts to give a “formal” definition to emergencies.
Art. 47(b) of the Constitution of Malta incorporates a definition of “period of public
emergency”. That definition is not very helpful as one of the alternatives offered by that
definition relate to a situation when “there is in force a proclamation by the President
declaring that a state of public emergency exists”.
34 A “state of war” may be declared in accordance with Art. 96 of the Constitution; a “state
of emergency” may be declared under the provisions of Art. 103. While the Constitution
includes no definition of the former type of emergency, it provides that the latter will be
defined by an Act of Parliament. Art. 103(1) provides as follows:
The cases in which a state of emergency, as defined by Act of Parliament, may be
declared by Royal Decree in order to maintain internal or external security shall be
specified by Act of Parliament. The consequences of such a declaration shall be
governed by Act of Parliament.
Constitution of Portugal distinguishes between a “state of emergency” and a

“state of siege”.35 Similar dual structures can also be found in the
constitutions of many former Communist countries36 such as Belarus,37
Estonia,38 Lithuania,39 Romania,40 Hungary,41 Slovakia,42 Slovenia43 and
Russia.44
35 See esp. Arts. 19 and 138 of the Portuguese Constitution. A state of siege or a state of
emergency may be declared “in cases of actual or imminent aggression by foreign forces,
serious threat to or disturbance of the democratic constitutional order or public calamity”
(Art. 19(2)). According to Art. 19(3), a “state of emergency is declared where the
circumstances mentioned in the preceding paragraph are less serious”.
36 See generally V.I. Ganev, “Emergency Powers and the New East European
Constitutions”, 45 Am. J. Comp. L. 585 (1997).
37 Under Art. 100(1)(18) of the Constitution of the Republic of Belarus, a “state of
emergency” may be introduced “in the event of a natural disaster, a catastrophe, or unrest
involving violence or the threat of violence on the part of a group of persons or
organizations that endangers peoples’ lives and health or jeopardizes the territorial
integrity and existence of the State”. A “state of martial law” may be imposed “in the
event of a military threat or attack”. Art. 100(1)(25).
38 The Constitution of Estonia distinguishes between a “state of war” and a “state of
emergency”. A state of emergency may be declared in the event of natural disasters or in
order to impede the spread of infectious diseases (Art. 87(8)) or in case of a “threat to the
Estonian Constitutional system” (Art. 129). A state of war may be declared in the event of
“aggression directed against the Republic of Estonia” (Art. 128).
39 Art. 142 of the Lithuanian Constitution permits the imposition of martial law “in the event
of an armed attack which threatens State sovereignty or territorial integrity”. Art. 84(16)
provides that, “[the President of the Republic shall] ... adopt, in the event of an armed
attack which threatens the State sovereignty or territorial integrity, decisions concerning
defense against such armed aggressions, the imposition of martial law, and mobilization,
and submit these decisions to the sitting of the next Seimas for approval”. A “state of
emergency” may be declared “in the event that the constitutional system or public order
of the state is threatened” (Art. 144).
40 Art. 93 of the Romanian Constitution authorizes the declaration of state of siege or state
of emergency. Neither term is defined in any way in the Constitution itself with details
left to be defined by statute.
41 The Constitution of the Republic of Hungary authorizes the declaration of “state of
national crisis,” and “state of emergency”. A state of national crisis may be declared by
Parliament “in the case of war, or imminent danger of armed attack by a foreign power”
(Art. 19(3)(h)). A state of emergency may be declared “in the case of armed actions
aimed at overturning constitutional order or at the acquisition of exclusive control of
public power, in the case of acts of violence committed by force of arms or by armed
groups which gravely endanger the lives and property of citizens on a mass scale, and in
the event of natural or industrial disaster” (Art. 19(3)(i)).
42 Art. 102 of the Slovak Constitution distinguishes between “state of emergency” and
“martial law”. Sec. 102(k) allows the President to declare martial law “if the Slovak
Republic is attacked or as a result of commitments arising from international treaties on
common defense against aggression”. A state of emergency is provided for under 102(l)
“on the basis of constitutional law”.
Many of the Constitutions of Latin and South American countries draw

distinctions among a multiplicity of states of exception (estado de
excepción) allocating different emergency powers to government according
to the particular type of exigency at hand. Not less than nine different states
of exception can be identified in the constitutions of these countries. These
include, among others, the state of siege (estado de sitio),45 state of
emergency (estado de emergencia),46 state of alarm (estado de alarma),47
state of prevention (estado de prevención),48 state of defense,49 and state of
war (estado de guerra).50 It is usual to find several distinct states of
exception in the same constitutional document.51 The mechanism used to
43 Art. 92 of the Slovenian Constitution speaks of “war” and “state of emergency”. It holds:
A state of emergency shall be proclaimed when a major and general danger threatens
the existence of the State. The proclamation of war or state of emergency, and the
introduction of necessary measures and their abolition, shall be decided by the State
assembly on the proposal of the government.
44 See, Arts. 56(2), 87 and 88 of the Russian Constitution. The proclamation of a state of
emergency is to be carried out in accordance with the procedures and under the
circumstances provided for by the Federal constitutional Law. Martial law may be
imposed in the event of aggression against the Russian Federation.
45 See, e.g., Art. 111 of the Constitution of Bolivia (“In cases of grave danger caused by
internal disorder or international war the chief of the executive power, with the approval
of the Council of Ministers, may declare a state of siege in such a portion of the territory
as may be necessary.”). See also, Art. 137 of the Constitution of Peru; Art. 23 of the
Argentine Constitution (“In the event of internal disorder or foreign attack endangering
the operation of this Constitution and of the authorities created thereby, the Province or
territory in which the disturbance of order exists shall be declared in a state of siege and
the constitutional guarantees shall be suspended therein. But during such suspension the
President of the Republic shall not convict or apply punishment upon his own authority.
His power shall be limited, in such a case, with respect to persons, to arresting them or
transferring them from one point of the Nation to another, if they do not prefer to leave
Argentine territory”.). On emergency powers under the Argentine Constitution see
generally, H.R. Baudon, Estado de Sitio (1939); E.L. Gregorini Clusellas, Estado de Sitio
y la Armonia en la Relación Individuo-Estado (1987); N.J. Lugones, Leyes de
Emergencia: Decretos de Necesidad y Urgencia (1992). See generally, P. Cruz Villalon,
El Estado de Sitio y la Constitución: la Constitucionalización de la Protección
Extraordinaria del Estado (1789-1878) (1980).
46 See, e.g., Art. 37(8) of the Constitution of the Dominican Republic; Art. 51 of the
Constitution of Panama (authorizing the proclamation of a “state of urgency”).
47 See, e.g., Art. 139 of the Constitution of Guatemala.
48 Id.
49 See, e.g., Art. 238(7) of the Constitution of Paraguay; Art. 136 of the Constitution of
Brazil.
50 See, e.g., Art. 47 of the Constitution of Panama.
51 Thus, for example, Art. 139 of the Constitution of Guatemala lists five distinct situations
of emergency: State of Prevention; State of alarm; State of public catastrophe (estado de
calamidad publica); State of siege; and State of war. Art. 21(V) of the Brazilian
distinguish among the various situations is based on general descriptions of

factual circumstances that may lead to invoking each particular state of
exception. Such factual circumstances include, inter alia, external war,52
breach of the peace and the public order,53 economic exigencies,54 natural
disasters55 and threats of disturbances.56 In addition, each constitution lists
the legal results arising out of the declaration of each state of exception by
way of suspension of individual rights (suspensión de garantias) and the
vesting of extraordinary powers in the executive branch of government.
Multilevel constitutional arrangements can also be found in the
constitutions of Western countries such as Germany, Canada and Spain, as
well as some former Communist countries.57 Following the May 1968
Constitution authorizes the federal government of Brazil to declare a state of siege, state
of defense and federal intervention (see also Arts. 84(ix) and (x), 136-39)). Art. 40 of the
Constitution of Chile distinguishes between state of assembly (estado de asamblea), state
of siege, state of emergency, and state of public catastrophe. It explicitly authorizes the
President to declare two or more of those states of exception should the circumstances so
merit (Art. 40(5)). Art. 41 goes on to specify the special powers that may be exercised by
the President in each situation. See also Arts. 212, 213 and 215 of the Constitution of
Colombia (three distinct states of exception); On constitutional emergency regimes in
Latin America see generally, D. Valdés, La Dictadura Constitucional en América Latina
(1974).
52 See, e.g., Art. 40(1) of the Constitution of Chile.
53 For example, in Guatemala, the Constitution defines “invasion, serious disturbances of the
peace, activities against the security of the State or public calamity” as bases for
introducing various emergency regimes (Art. 138).
54 See, e.g., Art. 185 of the Constitution of Nicaragua.
55 Art. 55(7) of the Constitution of the Dominican Republic allows for a declaration of a
state of siege in the event of “disaster areas in which damage has occurred, due to
meteors, storms, earthquakes, floods, or any other phenomenon of nature, as well as the
result of epidemics”. See also, Art. 136 of the Brazilian Constitution (authorizing the
President to decree a state of defense “in certain restricted locations to preserve or
promptly to reestablish public order or social peace threatened by grave and imminent
institutional instability or affected by large scale natural calamities”); Art. 202(13) of the
Constitution of Paraguay.
56 Art. 137 of the Constitution of Brazil authorizes the President of the Republic to decree a
state of siege in, among other things, the event of “a serious disturbance with national
effects...”. See also Art. 37(7) of the Constitution of the Dominican Republic.
57 Ch. XI of the Polish Constitution of 1997 authorizes the declaration of three types of
states of exception: martial law, state of emergency, and state of natural disaster. Martial
law may be declared “In the case of external threats to the State, acts of armed aggression
against the territory of the Republic of Poland or when an obligation of common defense
against aggression arises by virtue of international agreement” (Art. 229). A state of
emergency may be declared “In the case of threats to the constitutional order of the State,
to security of the citizenry or public order” (Art. 230(1)). A state of natural disaster may
be declared “In order to prevent or remove the consequences of a natural catastrophe or a
constitutional amendments that ushered in the “emergency constitution”,58

the German Basic Law now distinguishes between “Internal Emergency”
(Innerer Notstand), a “State of Tension” (Spannungsfall) and a “State of
Defense” (Verteidigungsfall).59 An Internal Emergency occurs in situations
when it is necessary “to avert an imminent danger to the existence or free
democratic basic order of the Federation or of a Land”.60 A State of Defense
may be declared when “the federal territory is under attack by armed force
or imminently threatened by such an attack”.61 On the other hand, the
circumstances that may give rise to a State of Tension are not defined in the
Basic Law.62 It should be noted that the Basic Law also deals with situations
of “natural disaster or a particularly serious accident” under which police
units from several Länder as well as the Federal Border Guard and the
Armed Forces may be called in to assist in combating the threat.63
In Canada, emergency doctrine finds its constitutional anchor in the
preamble to section 91 of the Constitution Act of 1867,64 which permits the
making of laws “for the Peace, Order and Good Government”.65 Based on
this provision the War Measures Act (“WMA”) was enacted in August
1914.66 WMA was applied during the two World Wars and in 1970 as a
result of the October 1970 FLQ crisis67 before its revocation in 1988 by the
technological accident exhibiting characteristics of a natural disaster” (Art. 232). In

addition to specific limitations pertaining to each declaration, Art. 228(1) provides that a
declaration of any of the three states of exception noted above may only be permissible
“in situations of particular danger, if ordinary constitutional measures are inadequate”.
58 See J.E. Finn, Constitutions in Crisis – Political Violence and the Rule of Law 196-200
(1991).
59 Art. 91 of the German Basic Law tackles the issue of Internal emergency, Art. 80a refers
to the State of Tension and Ch. Xa (Art. 115a-115l) deals with the state of defense. See
generally, Note, “Recent Emergency Legislation in West Germany”, 82 Harv. L. Rev.
1704 (1969).
60 Arts. 91(1) and 87a(4) of the Basic Law.
61 Art. 115a(1) of the Basic Law.
62 See, Arts. 12a(5)-(6) and 80a of the Basic Law. It has been argued, however, that the
legislative history and context indicate that the State of Tension is linked to international
tension, “Recent Emergency Legislation”, supra note 59, at 1714.
63 Art. 35(2)-(3) of the Basic Law.
64 Until 1982 this Act was known as the British North America Act.
65 See generally, P.W. Hogg, Constitutional Law of Canada 435-66 (3rd ed., 1992).
66 War Measures Act, 1914, S.C. 1915, c. 2. See P. Peppin, “Emergency Legislation and
Rights in Canada: The War Measures Act and Civil Liberties”, 18 Queen’s L.J. 129
(1993).
67 See M.L. Friedland, “National Security: Some Canadian Legal Perspectives”, 10 Israel
Y.B. Hum. Rts. 257, 280 (1980). On the application of wma and emergency powers in
Canada during the two World Wars see, e.g., Note, “Civil Liberties in Great Britain and
Canada During War”, 55 Harv. L. Rev. 1006 (1942) (finding the Canadian experience of
Emergencies Act.68 The Emergencies Act authorizes the federal government

to declare four different types of emergencies.69 “Public welfare emergency”
may be declared in circumstances of natural disasters;70 “public order
emergency” may be invoked when serious threats to the security of Canada
emerge;71 “international emergency” deals with situations involving acts of
intimidation towards Canada or other countries;72 finally, “war emergency”
may be proclaimed in case of real or imminent armed conflict involving
Canada or any of its allies.73 Under the Act the initial duration of each
proclaimed emergency varies (from 30 days in the case of “public order” up
to 120 days when “war emergency” is concerned) and so does the nature and
scope of permissible emergency powers granted to the federal government.
The Spanish constitution identifies three distinct scenarios involving a
“state of alarm” (estado de alarma), “state of emergency” (estado de
excepción) and “state of siege” (estado de sitio).74 Article 116 of the
Constitution deals with the authority to declare each of the three types of
emergency regimes, outlines general procedures for such declaration and
prescribes the initial duration for which a declaration may apply.75 In
implementing emergency powers to have been even more intrusive against individual
liberties than that of Great Britain); H. Marx, “The Emergency Power and Civil Liberties
in Canada”, 16 McGill L.J. 39, 71-88 (1970) (“Emergency Power”); Peppin, supra note
66, at 133-77. See also C.D. Gilbert, “’There Will be Wars and Rumours of Wars’: a
Comparison of the Treatment of Defence and Emergency Powers in the Federal
Constitutions of Australia and Canada”, 18 Osgoode Hall L.J. 307, 316-20 (1980). On the
use of emergency powers during the “October crisis” see H. Marx, “The ‘Apprehended
Insurrection’ of October 1970 and the Judicial Function”, 7 U.B.C. L. Rev. 55 (1972);
Peppin, supra note 66, at 177-89; P. Rosenthal, “The New Emergencies Act: Four Times
the War Measures Act”, 20 Manitoba L.J. 563, 593-98 (1991).
68 Emergencies Act, 1988, S.C. 1988, c. 29, s. 80. See Rosenthal, supra note 67.
69 See, e.g., E. Tenofsky, “The War Measures and Emergency Acts”, 19 Am. Rev. Can. Stud.
293 (1989).
70 Sec. 5 of the Emergencies Act. See Rosenthal, supra note 67, at 565-67.
71 Sec. 16 of the Emergencies Act defines “public order emergency” as “an emergency that
arises from threats to the security of Canada and that is so serious as to be a national
emergency”. Ibid., at 567-71.
72 Sec. 27 of the Emergencies Act defines “international emergency” as “an emergency
involving Canada and one or more other countries that arises from acts of intimidation or
coercion or the real and imminent use of serious force or violence and that is so serious as
to be a national emergency”. Ibid., at 571-72.
73 Sec. 37 of the Emergencies Act speaks of a “war emergency” in the context of “war or
other armed conflict, real or imminent, involving Canada or any of its allies that is so
serious as to be a national emergency”. Ibid., at 572-73.
74 See, e.g., Pedro Cruz Villalon, Estados Excepcionales y Suspension de Garantias (1984)
75 Sec. (2) of Art. 116 of the Spanish Constitution deals with the state of alarm, Sec. (3) with
the state of emergency and Sec. (4) with the state of siege.
addition, article 86 provides for governmental “provisional legislative

decisions” in the form of decree-laws in case of “extraordinary and urgent
necessity”.76 The Constitution does not define the three classes of
emergencies but rather leaves it for an organic law to regulate them as well
as the corresponding powers and limitations thereon.77 Pursuant to this
provision, Organic Law 4/1981 defined the different circumstances under
which each type of emergency regime may be exercised.78
Once again, the pattern of separating several types of emergency
regimes is not universally followed. The Constitution of South Africa, for
example, recognizes only one type of emergency regime, following a
declaration of a state of emergency. However, such a state of emergency may
be invoked in a range of cases when “the life of the nation is threatened by
war, invasion, general insurrection, disorder, natural disaster or other public
emergency”.79 Similarly, the Israeli BLG recognizes only the possibility of
declaring a state of emergency. However, unlike the South African
constitution, the BLG neither defines “state of emergency” nor purports to
describe the circumstances that may legitimately give rise to such a
declaration. All it does is recognize the possibility of declaring a state of
emergency without setting out substantive guidelines as to when such a
declaration may be appropriate.
As the brief survey above demonstrates, many constitutions apply at
least a two-level legal classification of emergency regimes, with some
constitutions employing a multilevel system of classification. The main
purpose behind such classifications is to tailor and, at the same time, limit the
powers made available to government in connection with a particular type of
emergency. Natural disasters call, so the argument goes, for government
powers distinct from those necessary to face a foreign invasion. Both
76 Art. 86(1) of the Spanish Constitution.

77 Art. 116(1) of the Spanish Constitution.
78 Emergency Powers, supra note 24, at 7-8. Under the Organic Law, the “state of alarm”
arises in the context of natural disasters and calamities or in periods of scarcity of basic
commodities and essential services; “state of emergency” may be declared when “the free
exercise of the citizen’s rights and liberties or the normal functions of democratic
institutions, public services essential for the community or any other aspect of public
order are altered to the extent that the ordinary powers prove insufficient to reestablish or
maintain them”; the “state of siege” may be proclaimed “in the event of an insurrection or
threat of insurrection or an act of force against the sovereignty or independence, territorial
integrity and constitutional order of Spain which cannot otherwise be resolved”. This
Organic Law was passed by the Cortes on June 1, 1981, following the failed coup headed
by Lt. Col. A. Tejero Molin and Gen. J. Milans Bosch.
79 Art. 37(1)(a) of the Constitution of South Africa. For similar examples see Arts. 180-82
of the Constitution of Ecuador; Art. 29 of the Constitution of Mexico.
situations are, in turn, distinguishable from economic crisis. Thus, for

example, it may be argued that certain crises may necessitate the use of
“executive” emergency powers, which do not confer upon the executive a
law-making power,80 while other types of emergencies may justify the use of
“legislative” emergency powers.81 Others may suggest a hierarchical order of
possible proclamations of emergencies. While each proclamation can be
made in the context of broad panoply of dangers and threats, the powers
made available to the executive, and the protection of individual rights and
civil liberties, increase and diminish in scope, respectively, as we step up the
emergency ladder.82
Moreover, when a constitution recognizes only one type of emergency
regime, the government may invoke that regime in the face of foreign
aggression – when a proclamation of a state of emergency may be considered
legitimate by a majority of the population – and then use the same
mechanism in other, less drastic situations while not abandoning any of its
expansive war-related powers. A war driven emergency will be called an
“emergency” exactly as will natural disasters, economic crises and internal
riots. Once both the public and its leaders get used to the fact that
“emergency” entails certain governmental powers, that may continue to hold
true also for future emergencies albeit of different and “lesser” nature.
However, classifying and categorizing emergencies is not without its
problems. Review of the existing classifications of states of emergency
reveals a substantial degree of vagueness, ambiguity and overlap among the
different categories. Some of the key terms used in this context, such as
“danger” and “imminent threat,” are broad enough to make the choice among
the possible categories mostly a political issue. Creating a sliding scale of
emergency regimes may encourage a government to resort to some type of
emergency regime. Some emergency regimes may be perceived of as “not so
serious” as, for example, a state of war. A declaration of such “low-level”
state of emergency may be more readily accepted by legislatures, courts, and
80 C.L. Rossiter, Constitutional Dictatorship – Crisis Government in the Modern

Democracies 291 (1948); C.J. Friedrich, Constitutional Government and Democracy 565-
66 (4th ed., 1968).
81 Rossiter, supra note 80, at 292-93; Friedrich, supra note 80, at 563-65; Watkins, supra
note 19, at 368-79. Such legislative emergency powers may be recognized explicitly in
the constitutional document itself. See, e.g., Art. 44(1) of the Greek Constitution; article
86 of the Spanish Constitution. Alternatively they may be conferred upon the executive
either by means of specific temporary legislation, broad delegation of powers from the
legislature, an enabling act or a permanent legislation with an “emergency-flavor”.
82 See, e.g., Art. 139 of the Constitution of Guatemala; Art. 19 of the Constitution of
Portugal.
the general public.83 Considering certain types of emergencies to be “not-so-

serious” may undermine the basic notion that emergencies correspond to
exceptional situations, relating especially to the exceptional nature of the
threat to the community. This can also act to condition people to live with
some type of emergency. Once some kind of emergency regime becomes
accepted as part of the normal way of life, it will be easier for government to
“upgrade” to a higher level emergency regime. In contradistinction, when any
state of emergency potentially makes available to government the full
panoply of permissible emergency powers, including the most draconian
ones, the public may be more cautious in accepting as valid a declaration of
emergency in suspect circumstances.84 This pronounced effect of “crossing
the threshold” may be absent when a scale of emergencies is offered.85
Crossing the threshold in the first place may be made easier. And once the
government crosses that threshold it becomes easier to continue and resort to
claims of emergency.
IV. THE AUTHORITY TO DECLARE AN EMERGENCY
In his seminal work, Constitutional Dictatorship,86 Clinton Rossiter argues

that a democratic regime can fight a successful total war by adopting a model
of constitutional dictatorship. Under this model, dictatorial forms substitute
democratic ones for the duration of the exigency. However, it is a
constitutional dictatorship in as much as its sole purpose is the complete
restoration of the status quo ante bellum. In that regard, constitutional
dictatorship must be both temporary and self-destructive. Once it enables the
government to overcome the emergency it must disappear without leaving a
trace. Rossiter suggests that in order for this extraordinary vehicle to function
properly, it must follow certain criteria that govern the initiation, operation,
83 Rosenthal, supra note 67, at 590-92.

84 Similarly, it has been argued that the existence of legislative provisions that authorize the
exercise of special or extraordinary powers by the Executive during a national emergency
weighs in favor of Congress’s issuing official declarations of war as this may shed light
on the domestic costs of war resulting from the expansive executive powers available on
the domestic front in times of war or national emergency. See J.G. Sidak, “To Declare
War”, 41 Duke L.J. 27 (1991); J.G. Sidak, “War, Liberty, and Enemy Aliens”, 67 N.Y.U.
L. Rev. 1402, 1424-31 (1992); see also H.H. Koh, “The Coase Theorem and the War
Power: A Response”, 41 Duke L.J. 122 (1991); J.G. Sidak, “The Inverse Coase Theorem
and Declarations of War”, 41 Duke L.J. 325 (1991).
85 See also O. Gross, “Cutting Down Trees: Law Making Under the Shadow of Great
Calamities”, in The Security of Freedom: Essays on Canada’s Antiterrorism Bill 39 (R.J.
Daniels et al. eds., 2001).
86 Rossiter, supra note 80.
and termination of the constitutional dictatorship.87 An important criterion is

that the initial decision to declare a state of emergency or that circumstances
justifying the use of emergency powers exist should not rest with the dictator,
i.e., that branch of government to whom emergency powers are entrusted.88
In many instances the primary authority for declaring a state of emergency
is vested in parliament. At times such power to declare an emergency is
coupled with the provision that parliament will so act upon the request or
proposal of the government.89 However, it is also common to find provisions
allowing the government or the president (where relevant) to declare a state
of emergency when circumstances are such that parliament cannot convene
or act in time against the exigency. Such circumstances may also pave the
way for the exercise of provisional legislative emergency powers by the
executive. Such executive declaration of emergency and acts of legislative
nature are then subject to a subsequent prompt ratification by parliament if
they are to remain in force.90
Other constitutional provisions vest the primary responsibility and
authority to declare a state of emergency in the executive, but require prior
authorization or subsequent ratification to be given by the legislative organ of
government.91 Where it is the president who has the constitutional power to
87 Ibid., at 297-306.
88 Ibid., at 299-300.
89 See, e.g., Art. 48(1) of the Greek Constitution; Arts. 78 and 87 of the Italian Constitution;
Art. 115a of the German Basic Law; Art. 34(1) of the Constitution of South Africa; Art.
37(7) and (8) of the Constitution of the Dominican Republic; Art. 92 of the Slovenian
Constitution. See also Ganev, supra note 36, at 587-89 (discussing the parliamentary
model of declaring a state of emergency). Cf. Art. 38(a) of Israel’s BLG (Knesset may
declare a state of emergency of its own initiative or pursuant to government proposal);
Art. 19(3)(i) of the Constitution of Hungary.
90 See, e.g., Art. 49(c) of the Israeli BLG; Art. 48(2) of the Greek Constitution; Art. 18(3) of
the Austrian Constitution; Art. 23 of the Constitution of Denmark. See also Ganev, supra
note 36, at 591-93.
91 See, e.g., Arts. 137(d) and 141 of the Constitution of Portugal; Art. 111 of the
Constitution of Bolivia; Arts. 2(II) and (V), 49(II) and (IV), 84 (IX), (X), 136 and 137 of
the Brazilian Constitution; Art. 31J of the Constitution of Zimbabwe; Art. 121(6) of the
Constitution of Costa Rica; Art. 51 of the Constitution of Panama; Art. 238(7) of the
Constitution of Paraguay. Several constitutional arrangements merely require the
government to notify the parliament of the proclamation of a state of emergency without
giving additional role to parliament, see, e.g., Art. 137 of the Constitution of Peru; Art.
190(6) of the Constitution of Venezuela; Art. 16 of the French Constitution; Art. 78(n) of
the Constitution of Ecuador; Art. 150(9) of the Constitution of Nicaragua.
Most constitutions of Latin and South American countries tend to vest the authority to
declare a state of exception in the President. This reflects the strong position traditionally
enjoyed by the executive in those countries, see, W.C. Banks & A.D. Carrió, “Presidential
Systems in Stress: Emergency Powers in Argentina and the United States”, 15 Mich. J.
declare an emergency it is often the case that a counter-signature by certain

ministers or an approval by the government is required for the declaration to
be valid.92 However, where the constitutional system involves a strong
presidency, it may well be that no counter-signature or formal governmental
approval is required. Rather, a duty of consultation with the government prior
to declaring a state of emergency may be required of the president.93 Finally,
it may also be the case that certain types of emergency regimes may be
declared by the executive and yet others by the legislature.94
Various constitutional arrangements can also be found concerning the
required majority in parliament that must approve or ratify an executive
declaration of emergency or to proclaim an emergency when the power to so
declare is vested in the legislature. The range of existing arrangements on this
point goes from demanding a simple majority to requiring a qualified
majority.95
Int’l L. 1, 7-9 (1993). A similar pattern is also discernible in the constitutions of several of
the former Communist countries. See, e.g., Art. 37 of the Polish Constitution. See also
Ganev, supra note 36, at 589-92 (discussing the presidential model of declaring a state of
emergency).
92 See, e.g., Art. 143 of the Constitution of Portugal; Art. 111 of the Constitution of Bolivia;
Art. 190(11) of the Constitution of Venezuela; Art. 99 of the Constitution of Romania;
Art. 352 of the Constitution of India (presidential declaration permissible only after a
written decision to that effect taken by the Union Cabinet).
93 See, e.g., Art. 16(1) of the French Constitution. Note also that under that Art. 19 of the
French Constitution explicitly exempts the President from the need for obtaining a
counter-signature prior (or indeed subsequent) to declaring a state of siege.
94 Art. 116(2) of the Spanish Constitution vests the power to declare a state of alarm in the
government, requiring notification to the House of Representatives. Art. 116(3) gives the
power to declare the broader state of emergency to the government, but conditions the
exercise of such power on obtaining the prior approval of the House. Art. 116(4), dealing
with a state of siege (the most wide-ranging of the three models), grants the power to
declare such a state of exception in the hands of the House, based on governmental
proposal. Compare with Arts. 16 and 36 of the French Constitution; Art. 288 of the
Constitution of Paraguay (concurrent authority, however presidential declaration of an
emergency is subject to subsequent parliamentary ratification).
95 The Greek Constitution, for example, requires that measures taken under paras. 2 and 3 of
Art. 48 (approval of presidential declaration of a state of siege when parliament could not
be convened, or renewing such a declaration) be taken by a “majority of the total number
of deputies.” A decision concerning paragraph 1 (parliamentary declaration of a state of
siege) must be taken by “a three-fifths majority of the total number of deputies”. Art.
37(2)(b) of the Constitution of South Africa provides that the first renewal of a
declaration of a state of emergency requires the supporting vote of a majority of members
of the Assembly. Further renewals require support of at least 60 percent of those
members. See also Arts. 80a (requiring a majority of two-thirds of the votes cast for a
declaration of a state of tension) and 115a (requiring a two-thirds majority of the votes
cast and at least a majority of the members of the Bundestag for a declaration of a state of
Different arrangements exist also with respect to the duration for which an
initial declaration of a state of emergency may be in force as well as with
respect to the possibility of further renewals of that declaration. The principle
of temporal duration, so intrinsically linked to the fundamental understanding
of the concept of emergency, requires that states of emergency be short-
lived.96 This principle is reflected in using one or both of the following
techniques: (1) setting temporal limitations on a declared state of
emergency;97 and- (2) setting strict procedures concerning the extension of a
declared state of emergency.98 In fact, under some constitutions there is a
limit on the number of permissible extensions to the initial declaration of
emergency or a limit on the number of emergencies which may be declared in
a given period (usually one calendar year).99
In conclusion, different constitutional arrangements can be found with
respect to the organ or organs that are authorized to declare an emergency.
Under the majority of constitutional schemes, the authority to invoke an
emergency regime is shared by the executive and legislative branches of
government. However, the exact point of equilibrium varies with the specific
type of emergency involved and with the general constitutional culture of any
given jurisdiction.100 The constitutional mechanism of institutional power
sharing is designed to prevent a situation in which the organ who is to
exercise emergency powers under a declared emergency is also the one
authorized to declare that emergency in the first place and activate its own
powers. At the same time, it is aimed at ensuring that the branch of
government most capable of acting rapidly and effectively to counter a crisis
is not rendered unable to wield the necessary powers and to take the measures
that are deemed necessary to overcome the particular exigency.
defense) of the German Basic Law. Art. 352(6) of the Constitution of India requires that a
parliamentary resolution to approve a prior presidential declaration or to renew such a
declaration “may be passed by either House of Parliament only by a majority of the total
membership of that House and by a majority of not less than two-thirds of the members of
that House present and voting”.
96 Gross, supra note 5, at 452-54.
97 See, e.g., Art. 38(b) of Israel’s BLG and Art. 352(5) of the Indian Constitution.
98 See, e.g., Art. 37 of the Constitution of South Africa.
99 Art. 111 of the Bolivian Constitution mandates that “[t]he Executive may not prolong a
state of siege beyond ninety days nor declare another within the same year, except with
the consent of Congress”.
100 Emergency Powers, supra note 24, at 9.
V. LEGAL RESULTS OF DECLARING A STATE OF EMERGENCY
To what extent may a constitution be suspended, in whole or in part, in times

of emergency? May individual rights, otherwise protected by the constitution,
be suspended or derogated from under such circumstances? To what extent
may emergency measures change the institutional features of the
constitutional order? And to what extent may the constitution be modified,
amended, changed or even repealed in such conditions? These are some of
the most important questions that ought to be answered in thinking about
emergency regimes.
Under some constitutions a declaration of emergency may lead to the
suspension of certain individual rights and freedoms. For the most part, the
constitutions reviewed here follow one of two approaches on this matter: (1)
enlisting those rights and freedoms that may be suspended during a declared
state of emergency (a positive list approach),101 or- (2) enumerating those
rights and freedoms that may not be restricted or in any way violated even in
times of acute exigency (a negative list approach).102 Some constitutional
101 Costa Rica, for example allows for the limitation of, “the rights and guarantees conferred
by Art. 22 [freedom of movement], 23 [sanctity of the private home], 24 [privacy of
private documents and communications], 26 [freedom of meeting], 28 [freedom to do all
that is not forbidden], 29 [freedom of expression], 30 [free access to administrative
departments] and 37 [concerning detention] of the Constitution. Art. 121(7) of the
Constitution of Costa Rica. See also Art. 55 of the Spanish Constitution; Art. 48 of the
Greek Constitution; Art. 139 of the Brazilian Constitution; article 138 of the Constitution
of Guatemala; Art. 51 of the Constitution of Panama; article 288 of the Paraguayan
Constitution; Art. 187(3) of the Constitution of Fiji; Art. 29 of the Constitution of El
Salvador; Art. 103(2) of the Dutch Constitution; Art. 183(2) of the Constitution of
Cyprus.
102 This is the approach taken by the Nicaraguan Constitution, Art. 186. See also Art. 19(6)
of the Portuguese Constitution; Art. 37 of the South African Constitution; Art. 56(3) of
the Constitution of Russia; Art. 200 of the Constitution of Peru; Art. 241 of the
Constitution of Venezuela; Art. 45 of the Armenian Constitution; Art. 63(2) of the
Constitution of Belarus; Art. 57(3) of the Constitution of Bulgaria; Art. 17(3) of the
Croatian Constitution; Art. 130 of the Constitution of Estonia; Art. 8(4) of the Hungarian
Constitution; Art. 115(8) of the Constitution of Nepal.
Some constitutions take a mixed approach. Thus, for example, the Constitution of Albania
uses a negative list approach with respect to a state of war or a state of emergency, while
adopting a positive list approach with respect to a state of natural disaster (Art. 175). See
also Art. 233 of the Polish Constitution; Art. 16 of the Slovenian Constitution.
Another approach is taken by the Indian Constitution in Arts. 358 and 359. Art. 358
provides that, during a declared state of emergency, “nothing in article 19 shall restrict the
power of the State as defined in Part III [Fundamental rights] to make any law or to take
any executive action which the State would but for the provisions contained in that Part
be competent to make or to take”. Art. 359 adds that under such a declared state of
arrangements make explicit reference to international instruments such as the

major human rights conventions adopting by reference the limitations
prescribed therein on the possibilities of derogation from otherwise protected
rights and freedoms.103
Another constitutional outcome of a declaration of a state of emergency
may be the conferring upon the executive branch of extraordinary powers.
While resulting in the contraction of the scope of protection for individual
rights (whether by way of an explicitly mandated constitutional suspension,
or by way of redefining the scope of coverage of such rights in times of
exigency), emergencies also lead to concentration of power in the hands of
the executive.104 Likewise emergencies tend to result in an expansion of
executive powers.105 One important aspect of such expansion and
concentration of powers concerns the ability of the executive to engage in the
process of law-making. Such law-making powers may be granted to the
government either in accordance with an explicit constitutional provision or
by way of delegation of some legislative power from the legislature either a
priori or in the context of a particular emergency.106 Legislative-type
emergency powers107 can take the form of authorization of the executive to
emergency “the President may by order declare that the right to move any court for the
enforcement of the rights conferred by Part III (except Arts. 20 and 21) as may be
mentioned in the order and all proceedings pending in any court for the enforcement of
the rights so mentioned shall remain suspended for the period during which the
Proclamation is in force”. Thus, while individual rights may not be expressly suspended,
the possibility of taking any action as authorized by Art. 358, coupled with suspension of
remedies against constitutional violations (as provided by Art. 359) gives the federal
government enormous powers. For a similar approach see Art. 115, Secs. (8) and (9) of
the Constitution of Nepal.
103 See, e.g., Art. 23 of the Constitution of Finland. Of course, States that are parties to any of
these Conventions are legally constrained by the demands of these international
agreements and may run the risk of violating their international obligations if they choose
to disregard the rules set forth by these agreements.
104 Rossiter, supra note 80, at 12 (“Crisis government is primarily and often exclusively the
business of presidents and prime ministers”.); A.S. Miller, “Crisis Government becomes
the Norm”, 39 Ohio St. L.J. 736, 738-41 (1978); H.H. Koh, The National Security
Constitution 117-49 (1990); E. Corwin, Total War and the Constitution 172-79 (1947).
105 Rossiter, supra note 80, at 288-90.
106 The force of such emergency executive decree-laws may depend on a subsequent
ratification by the legislative organ. Alternatively such executive legislation may be valid
so long as not repealed by either the executive or the legislature. See, e.g., Art. 112 of the
Constitution of Bolivia; Art. 62 of the Brazilian Constitution; Art. 23 of the Constitution
of Denmark; Art. 24 of the Irish Constitution; Art. 18(3) of the Austrian Constitution; Art.
86 of the Spanish Constitution; Art. 118(19) of the Constitution of Peru; Art. 153(16) of
the Constitution of Panama; Art. 357 of the Constitution of India.
107 See supra notes 80-81 and the accompanying text.
issue decree-laws and regulations that may have the power to amend or even
suspend parliamentary legislation.108 Indeed, under the doctrine of “régime de
stricte nécessité” the federal government of Switzerland may issue decree-
laws that may even derogate from constitutional provisions under certain
circumstances.109
The power to issue provisional legislation may also be conferred upon the
executive in situations such as the German “Legislative Emergency”
(Gesetzgebungsnotstand). Article 81 of the German Basic Law provides that
the President may, if the Bundestag was to be dissolved following a
successful no-confidence vote but has not yet been so dissolved, at the
request of the federal government and with the authorization of the
Bundesrat, “declare a state of legislative emergency with respect to a bill
which is rejected by the Bundestag although declared urgent by the Federal
government”.110 Similar arrangements conferring upon the executive law-
making power are included in many constitutional documents.
Several other broad categories of legal effects of a declared state of
emergency should be noted. First, in federal States one of the first “victims”
of exigencies and crises is the principle of federalism.111 This is explicit not
only in various constitutional provisions found in the constitutions of, for
example, Germany112 India,113 and Russia,114 but is also the constitutional
practice in the United States115 and Canada.116
108 See, Art. 39(c) of the Israeli BLG. See A. Rubinstein, Constitutional Law of the State of
Israel 823-24 (Hebrew, 5th rev. ed., 1996); I.H. Klinghoffer, “On Emergency Regulations
in Israel”, in Jubillee to Pinchas Rosen 86 (H. Cohen ed., 1962).
109 See Emergency Powers, supra note 24, at 5. However, this doctrine has never been
invoked in practice. Id. See also Art. 115k of the German Basic Law; Art. 48(5) of the
Greek Constitution. On the relationship between emergency regulations and Basic Laws
in Israel see Rubinstein, supra note 108, at 823-24.
110 Art. 81(1) of the German Basic Law. Where the legislative body is not a bi-cameral
organ, such emergency legislation may be issued by the government (or the President, as
the case may be) without the need for a prior authorization of any other governmental
branch. In any event, such emergency legislation needs to be approved by Parliament
once the causes for the legislative emergency have expired.
111 See Emergency Powers, supra note 24, at 13.
112 German Basic Law, Art. 53(a)(2).
113 See Art. 353, 356, and 360 of the Constitution of India (power of the President over the
affairs of the states in times of emergency, including the power to dissolve state
governments); D. Das Basu, Introduction to the Constitution of India 302-16 (9th ed.
1982).
114 The Constitution of the Russian Federation, Art. 88.
115 See, e.g., Corwin, supra note 104, at 35-77 (describing how total war shapes and
transforms domestic governments).
116 Marx, “Emergency Power”, supra note 67, at 57-61 (discussing the “dimensions doctrine”
under which provincial matters can become of national dimensions in times of crisis and
Second, in order to prevent repetition of the mistakes that led to the

destruction of the Weimar constitutional experiment, modern constitutional
provisions often proscribe any change or modification of the Constitution
itself during an emergency, or at least any change or modification of the
nature of the regime and of its core constitutional norms.117 Similarly, it is
frequently provided that the legislature may not be dissolved during an
emergency.118 In fact, some constitutions provide that during a state of
emergency the term of office of the legislature is extended.119
However, certain constitutional doctrines seem to leave the door open for
quite broad suspension of constitutional provisions in time of exigency. Thus,
for example, under the doctrine of the “régime des pleins pouvoirs” (regime
of full powers) the Swiss federal government may act in a way that would
otherwise be considered unconstitutional, if deemed necessary to safeguard
the state’s security, its independence and neutrality as well as its economic
interests.120 This emergency regime may be invoked by the federal
government when parliament cannot meet or when the legislative process can
thus allow the federal government to step in and act in those areas which are normally left
for the provinces); Gilbert, supra note 67, at 319-20; D.G. Creighton, Dominion of the
North 439 (1944), quoted in Peppin, supra note 66, at 131 (“By virtue of the War
Measures Act ... the federal government began slowly but inexorably to do a number of
things which it would never have dreamed of doing in time of peace... And, in the end,
Canada was to be the slightly mystified and highly embarrassed possessor of two federal
systems: one for times of peace and one for periods of war”.); Rosenthal, supra note 67,
at 576-80 (noting a long history of encroachment by the Canadian Federal Parliament on
provincial jurisdiction in times of emergency, under the aegis of the “emergency
doctrine”).
117 See, e.g., Art. 196 of the Constitution of Belgium, which provides that “[n]o constitutional
revision may be undertaken or pursued during times of war or when the Houses are
prevented from meeting freely on federal territory”. See also Art. 187 of the Belgian
Constitution; Arts. 170(5) and 177(2) of the Constitution of Albania; Art. 60(1) of the
Constitution of Brazil; Art. 133 of the Constitution of Cambodia; Art. 89(4) of the French
Constitution; Art. 113 of the Constitution of Luxembourg; Art. 148 of the Romanian
Constitution; Ch. 13, Art. 5(2) of the Swedish Constitution; Art. 18(5) of the Austrian
Constitution.
Contrast this approach with Art. 96(1) of the Algerian Constitution, which flatly states
that “during a period of state of war, the Constitution is suspended [and] the President of
the Republic assumes all the powers”.
118 See, e.g., Arts. 16 and 89 of the French Constitution; Art. 289 of the Constitution of
Portugal; Arts. 169 and 116(5) of the Spanish Constitution; Art. 101 of the Constitution of
Croatia; Art. 28A of the Constitution of Hungary; Art. 128 of the Constitution of
Macedonia; Art. 288(9) of the Constitution of Paraguay.
119 Art. 115h of the German Basic Law; Art. 53 of the Constitution of Greece; Art. 228 of the
Polish Constitution. See also Rossiter, supra note 80, at 192 (postponement of general
elections in W.W.II. Britain).
120 Emergency Powers, supra note 24, at 5.
no longer function. Further witness of the extreme potential of such an

emergency regime (which has so far been invoked only during the two World
Wars)121 can be seen in the fact that there are practically no constitutional
limitations on its employment (either durational limitations or provision for
judicial or legislative check of governmental actions).122 The only limitation
is derived from Switzerland’s accession to the European Convention of
Human Rights.
If this result is achieved in Switzerland where the constitution itself is
silent on the matter, the Irish Constitution goes even further. Article 28,
section 3, paragraph 2 explicitly provides that “[i]n the case of actual
invasion ... the Government may take whatever steps they may consider
necessary for the protection of the State ...”. Paragraph 3 continues in the
same line when it provides that,
[n]othing in this Constitution shall be invoked to invalidate any law

enacted by the Oireachtas [National Parliament] 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.123
As one of the judges of the Irish Supreme Court suggested, “[t]he

Constitution here envisages a crisis during which the normal rule of law is,
at least to a considerable extent, superseded by the Rule of the Executive in
the domain of emergency law ... subject only to the control of the
Legislature”.124 The result is “to provide a means of freeing the Oireachtas
from the limits imposed upon it by the Constitution ... So long as the statute
is expressed to be for the purpose specified, nothing whatever in the
Constitution may be invoked to invalidate it ... In theory [the Oireachtas]
could, by invoking the Article 28.3.3° formula and keeping the emergency in
being, re-write the Constitution ... ”.125
Should a constitution provide for its own suspension, in whole or in part,
in times of acute emergencies? After evaluating the American experience
with emergency powers, Laurence Tribe concludes that “omitting a
121 Id.
122 Id. In “Summary Table of Replies” attached to the study.
123 See generally, J. Casey, Constitutional Law in Ireland 149-156 (2d ed. 1992); B. Doolan,
Constitutional Law and Constitutional Rights in Ireland 54-58 (3rd ed., 1994).
124 State (Walsh) v. Lennon [1941] I.R. 112, 120 (per G. Duffy J.). See also Re McGrath and
Harte [1941] I.R. 68.
125 See Casey, supra note 123, at 150.
suspension clause can create an enduring, flexible document that allows

government to meet the challenges of emergencies, while appropriately
circumscribing such emergency power.”126 However, as we have seen, this is
not a universally accepted view as there are constitutional arrangements that
allow for suspension of the constitution, in whole or in part, in times of
crisis. On the other hand, while a constitutional suspension clause may be
regarded by some as necessary in order to enable government to meet
successfully acute crises, those advocating the inclusion of such clauses in
the constitutional document must determine how to provide for limitations
on governmental emergency powers. After all, if the constitution may be
suspended in times of emergency, can any restraints be imposed on the
government wielding such powers? And if so, where is one to find the legal
source for such limitations?
One possible approach looks for such limitations within the constitutional
document itself.127 Thus, for example, in addition to providing for its own
suspension in circumstances of acute emergency, the constitution may
specify a range of limitations that apply to governmental emergency powers
even when the constitution is suspended. The constitution may provide for a
certain irreducible core — constitutional provisions that are essential for the
maintenance of the democratic nature of the regime, the continued
functioning of all governmental branches and a cluster of non-derogable
rights — that may not be abolished, modified, changed, or repealed in times
of emergency. The constitution may also incorporate a list of “stringent and
persuasive conditions”128 that must exist for a “constitutional” suspension of
the constitution to take place.129
However, if the justification underlying a suspension clause is that in
situations of national emergency government may take whatever measures it
considers imperative to overcoming the crisis, is there any significance to the
imposition of constitutional limitations on governmental conduct under such
circumstances? if “necessity knows no law” than it would matter little
whether “law” refers to a derogable individual right or to a non-derogable
126 L. H. Tribe, “The American Constitutional Experience with Emergency Powers,”

Memorandum to the Authors of the Constitution for the Czech and Slovak Federated
Republic, Jan. 8, 1991, at 3 (on file with the author).
127 An alternative approach is to look for the legal source in the realm of meta-constitutional
principles as well as to look for political, moral, and social constraints.
128 A. M. Schlesinger, Jr., The Imperial Presidency 459 (1989).
129 Schlesinger offers a list of eight preconditions which, in his opinion, ought to exist for
one to speak of a legitimate suspension of the constitution. Id. It ought to be noted,
however, that he does not argue for the inclusion of these preconditions into the
constitution itself. Underlying the proposed criteria are principles seeking to define the
exceptional nature of a particular emergency both on an objective and subjective levels.
one, to an “irreducible core” or not.130 The notion of “necessity” does not

“differentiate among constitutional rules, and the reasons for exceeding
presidential powers could be equally good for violating ... structural rules
...”.131 It cannot be reconciled with pre-defined limitations and restrictions on
the use of emergency power.132
Indeed, a constitutional suspension clause is both unnecessary and
undesirable. It is unnecessary because if government is to go outside the
constitutional boundary it would do so regardless of whether the constitution
itself allows such actions. If one strives to maintain as complete a separation
between normalcy and emergency as possible, including a suspension clause
in the constitution is also undesirable. It makes constitutional that which is
otherwise unconstitutional and ought to remain so. Emergency measures
may, under certain circumstances, go beyond positive law and sometimes
even against it, but when they do they must be openly acknowledged for
what they are. Allowing the constitution to prescribe its own suspension
confers a false sense of legality and legitimacy on these exceptional
measures and facilitates the breaking down of the demarcation lines between
normalcy and emergency.
VI. CHECKS AND BALANCES
The problem with emergency powers results, among other things, from the
need to balance adequately between the granting of sweeping powers to the
government to allow it to fight the crisis successfully, and the need to
prevent (or at least minimize) abuses of power by government and its agents.
The task of checking the executive is entrusted to other branches of
government. Some legal systems may see the courts as the ultimate
safeguard of rights, liberties and freedoms against governmental
encroachment. Others may put their faith in the legislature. Be that as it may,
the claim has often been made that neither courts nor legislatures live up to
that task in times of emergency, precisely when their vigilance is most
needed.133
130 J.M. Bessette & J. Tulis, “The Constitution, Politics, and the Presidency”, in The
Presidency in the Constitutional Order 3, 22 (J. M. Bessette & J. Tulis eds., 1981).
131 S. A. Barber, On What the Constitution Means 188 (1984).
132 M. Kremnitzer, “National Security and the Rule of Law: A Critique of the Landau
Commission’s Report”, in National Security and Democracy in Israel 153 (A. Yaniv ed.,
1993) (the doctrine of necessity is not amenable to pre-defined guidelines).
133 See, e.g., G.J. Alexander, “The Illusory Protection of Human Rights By National Courts
During Periods of Emergency”, 5 Hum. Rts. L.J. 1 (1984); L. Lustgarten & I. Leigh, In
From the Cold – National Security and Parliamentary Democracy 320-59 (1994); Koh,
supra note 104, at 117-49. Patterns of deference to executive decisions and actions are not
Some constitutional provisions explicitly provide for judicial review not

only of particular emergency measures employed by the government but
also of the legal validity of the initial declaration of emergency.134 Few
others limit (or outright prevent) judicial review of the constitutional validity
of the declaration of a state of emergency or of legislative emergency
measures.135 Most constitutions are, however, silent on this matter.
However, practice shows that, on the whole, courts tend to support the
government’s position either by invoking such judicial mechanisms as the
political question doctrine and standing to prevent themselves from having
to decide the matter brought before them on the merits,136 or when deciding
a case on its merits, accepting the government’s position.137 That tendency of
only limited to national institutions but can also be detected with respect to international
organs. See Ni Aolain, supra note 22; Gross, supra note 5, at 490-500.
134 The Constitution of the Philippines explicitly allows for review of the emergency regime
from its inception. Art. VII(18) provides that “[t]he Supreme Court may review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the
proclamation of martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from the filing”. See
also Art. 37(3) of the Constitution of South Africa.
135 See Art. 150(8) of the Malaysian Constitution. Art. 219 of the Constitution of Thailand
recognizes the possibility of judicial review of emergency decrees, yet limits it in various
ways (such as requiring that a decision by the Constitutional Court that an emergency
decree contravenes certain constitutional provisions, be made by votes of no less than
two-thirds of the total number of justices). Art. 26 of the Irish Constitution provides that
legislative Bills that are passed under an expedited process (i.e. Bills that are deemed by
the government to be “urgent and immediately necessary for the preservation of the
public peace and security, or by reason of the existence of a public emergency, whether
domestic or international”) are not susceptible to the procedure of referral to the Supreme
Court for review of their constitutionality.
136 See, e.g., T.M. Franck, Political Questions/Judicial Answers – Does the Rule of Law
Apply to Foreign Affairs? (1992); J. Hart Ely, War and Responsibility – Constitutional
Lessons of Vietnam and its Aftermath 54-60 (1993).
137 See, L. Sheleff, “The Green Line is the Border of Judicial Activism: Queries about
Supreme Court Judgments in the Territories”, 17 Iyunei Mishpat (Tel Aviv Univ. L. Rev.)
757 (Hebrew, 1993); R. Shamir, “’Landmark Cases’ and the Reproduction of Legitimacy:
The Case of Israel’s High Court of Justice”, 24 L. & Soc’y Rev. 781 (1990); D. Kretzmer,
“Judicial Review Over Demolition and Sealing of Houses in the Occupied Territories”, in
Klinghoffer Book on Public Law 305 (I. Zamir ed., 1993); Franck, supra note 136, at 116-
25. Franck notes that “[w]hile the German courts are willing to enter the political thicket
at the behest of parties challenging the constitutionality of a foreign-policy objective or
the means employed to attain it, in effect they give the government the benefit of any
reasonable doubt”. Ibid., at 117. Thus, “[m]easured by outcomes, the German judiciary,
taking jurisdiction in virtually every instance, has upheld the contested foreign-policy and
security initiatives of the political branches in roughly the same proportion ... as the U.S.
the courts becomes even more pronounced when they deal with a particular
case durante bello as opposed to deciding it when the crisis is over.138 This
constitutional experience, which is shared by nations worldwide, may
suggest that judicial review of emergency powers ought to be welcomed by
governments as it confers a certain degree of legitimacy on the government’s
actions without exposing the executive to substantial risk that its actions may
be curbed by the judiciary.139
No less problematic are the checks by the legislative branch of the
executive in times of emergency. Most constitutional arrangements provide
for such checks through the required involvement of parliament in the
processes of declaring and terminating an emergency and the necessity of
obtaining parliamentary approval of executive emergency legislative acts for
those to remain in force. This is added to the ordinary methods by which
parliament exercises control and supervision over the government (such as
approving appropriations, parliamentary inquiries and questioning, special
parliamentary committees, and no-confidence votes). Once again, reality
reveals a significantly different story. Legislatures tend to abdicate
responsibility in times of emergency and “rally ‘round the flag”.140 Indeed,
the more acute the particular emergency, the less likely it is that the
legislature will attempt to control the executive.
federal courts have by practicing abdication”. Ibid., at 124. See also A.-M. Slaughter
Burley, “Are Foreign Affairs Different?”, 106 Harv. L. Rev. 1980, 1991-98 (1993).
In a famous letter to Z. Chafee, Judge Learned Hand described his rejection of the “clear
and present danger” test as invoked by Justice Holmes in Abrams v. United States. 250
U.S. 616, 628-30 (1919) (Holmes, J., dissenting). Judge Hand criticized the test, stating:
“Besides even their Ineffabilities, the Nine Elder Statesmen, have not shown themselves
wholly immune from the ‘herd instinct’ and what seems ‘immediate and direct’ to-day
may seem very remote next year even though the circumstances surrounding the utterance
be unchanged”. Letter from Learned Hand to Z. Chafee, Jr. (Jan. 2, 1921), quoted in G.
Gunther, Learned Hand: The Man and the Judge 169 (1994). In a similar vein, Chafee
himself wrote that “[t]he nine Justices in the Supreme Court can only lock the doors after
the Liberty Bell is stolen”. Z. Chafee Jr., Free Speech in the United States 80 (1941).
138 See, e.g., C.N. May, In the Name of War – Judicial Review and the War Powers Since
1918 (1989); W.H. Rehnquist, All the Laws but One 222 (1998).
139 See Shamir, supra note 137.
140 B. Russett, Controlling the Sword – The Democratic Governance of National Security 34-
38 (1990). See also G. Barzilai, A Democracy in Wartime: Conflict and Consensus in
Israel 247-60.
VII. CONCLUDING REMARKS
One of the most critical tasks faced by drafters of national constitutions is to

strike an appropriate and tenable balance between what Frederick Schauer
calls “the dangers of erroneous governmental empowerment” and “the
dangers of erroneous governmental disempowerment.”141 This task becomes
all the more critical when dealing with the question of emergency regimes.
There exists a tension of “tragic dimensions” between democratic values and
responses to emergencies.142 Democratic nations faced with serious terrorist
threats must “maintain and protect life, the liberties necessary to a vibrant
democracy, and the unity of the society, the loss of which can turn a healthy
and diverse nation into a seriously divided and violent one.”143 At the same
time, exigencies and acute crises directly challenge the most fundamental
concepts of constitutional democracy.
This article examines the various ways in which national constitutional
documents have dealt with this fundamental conundrum. In particular, the
article’s suggests possible classifications of the relevant constitutional
provisions along the basic contours of what Clinton Rossiter identified to be
the very basic features of any constitutional dictatorship. These essential
elements are shaped by the answers given within particular constitutional
regimes to questions such as: how (and whether) to define a state of
emergency in the constitutional document; who has the power and authority
to declare a state of emergency (and to terminate such a declaration); what
political and judicial control (if any) exists under the constitutional
framework over the use of emergency powers; and what are the legal
ramifications of declaring a state of emergency with respect, for example, to
the protection of individual rights and civil liberties.
As the article demonstrates, answers to these questions vary substantially
from one jurisdiction to another. There is no acceptable standard for
constitutional shock absorbing mechanisms aimed at handling acute crises.
Nor can an agreement be found with respect to some of most fundamental
conceptual questions such as whether a constitution ought to provide for its
own suspension, in whole or in part, in times of emergency. In fact,
constitutional divergences are brought into sharper relief in the context of
provisions dedicated to emergencies (e.g., the balance of power among the
three branches of government).
141 F. Schauer, “The Constitution of Fear”, 12 Const. Commentary 203, 205 (1995).
142 P. Lahav, “A Barrel Without Hoops: The Impact of Counterterrorism on Israel’s Legal
Culture”, 10 Cardozo L. Rev. 529, 531 (1988).
143 P. B. Heymann, Terrorism and America: A Commonsense Strategy for a Democratic
Society, at ix (1998).
However, I would suggest that, despite such differences, recognizing the

importance of the questions presented above and the gamut of possible
constitutional responses to them is valuable in and of itself. As Harold
Lasswell cogently put it:
“It is less important, perhaps, that a brief book about our problem arrive at
definitive recommendations than that it does something to focus attention
upon the issues at stake, and helps to create a climate of opinion in which
the talents of scholars and statesmen are challenged to cope with
immediate emergencies with an eye upon enduring goals and
principles.”144
Until recently, legal and constitutional issues surrounding emergency

powers have not attracted much attention from either scholars or statesmen.
This is no longer the case. However, in the current political and legal climate
much emphasis is put on coping with immediate emergencies, real or
perceived while paying relatively little attention to enduring goals and
principles. Thinking about the issues raised in this article will hopefully
contribute to a more nuanced discourse concerning emergency powers.
144 H. D. Lasswell, National Security and Individual Freedom 1 (1950).
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I. INTRODUCTION: THE REVOLUTION THAT WASN’T

Much fanfare has been made of the “constitutional revolution” in Israel,1

∗ Associate Professor and Vance K. Opperman Research Scholar, University of Minnesota

complex state of emergency is characterized by “the great number of parallel or

measures and powers be implemented in their wake, except to the extent

drive is for the constitutional arrangements to ensure sufficient powers to

domestic legal systems rather than on international or regional

II. EXISTENCE OF CONSTITUTIONAL EMERGENCY PROVISIONS

Different constitutional systems differ greatly in their treatment of the

International Law: Anti-Terrorism Legislation – Part One: An Overview”, 11 J.

Indirect reference to emergencies may only be found in two clauses - Article

It is also worth noting that some national constitutions, while providing

III. DEFINING EMERGENCIES

Defining a state of emergency in advance is no easy task.30 Furthermore, it is

it is impossible to foresee or to define the extent and variety of national

How, then, do drafters of national constitutions respond to this difficulty?

Constitution of Portugal distinguishes between a “state of emergency” and a

Many of the Constitutions of Latin and South American countries draw

distinguish among the various situations is based on general descriptions of

constitutional amendments that ushered in the “emergency constitution”,58

technological accident exhibiting characteristics of a natural disaster” (Art. 232). In

Emergencies Act.68 The Emergencies Act authorizes the federal government

addition, article 86 provides for governmental “provisional legislative

76 Art. 86(1) of the Spanish Constitution.

situations are, in turn, distinguishable from economic crisis. Thus, for

80 C.L. Rossiter, Constitutional Dictatorship – Crisis Government in the Modern

the general public.83 Considering certain types of emergencies to be “not-so-

IV. THE AUTHORITY TO DECLARE AN EMERGENCY

In his seminal work, Constitutional Dictatorship,86 Clinton Rossiter argues

83 Rosenthal, supra note 67, at 590-92.

and termination of the constitutional dictatorship.87 An important criterion is

declare an emergency it is often the case that a counter-signature by certain

V. LEGAL RESULTS OF DECLARING A STATE OF EMERGENCY

To what extent may a constitution be suspended, in whole or in part, in times

arrangements make explicit reference to international instruments such as the

Second, in order to prevent repetition of the mistakes that led to the

no longer function. Further witness of the extreme potential of such an

[n]othing in this Constitution shall be invoked to invalidate any law

As one of the judges of the Irish Supreme Court suggested, “[t]he

suspension clause can create an enduring, flexible document that allows

126 L. H. Tribe, “The American Constitutional Experience with Emergency Powers,”

one, to an “irreducible core” or not.130 The notion of “necessity” does not

VI. CHECKS AND BALANCES

Some constitutional provisions explicitly provide for judicial review not

VII. CONCLUDING REMARKS

One of the most critical tasks faced by drafters of national constitutions is to

However, I would suggest that, despite such differences, recognizing the

Until recently, legal and constitutional issues surrounding emergency

144 H. D. Lasswell, National Security and Individual Freedom 1 (1950).

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