Details of the State of Emergency Clauses
14.2.1 Types of Emergency Rule
Most constitutions contain provisions on emergency situations (see Table 14.1). In a minority of countries there is no emergency rule as such, but there are provisions to be applied in the event of war, danger of war or other emergency situations.[962]
Since constitutional regulations usually enshrine guarantees for fundamental rights and liberties at constitutional level with particular exceptions such as to most degrees Australia, where the Government of the day could theoretically lift most human rights, it is recommended that such emergency regimes be explicitly regulated in the constitutions.[963] A diversified model which differentiates between the situations gives the flexibility to react to the different situations only with appropriate and absolutely necessary measures and is recommended.
The distinctions are usually made within the framework of internal or external influences.[964] Internal emergencies usually cover natural disasters, riots or terrorism while external aggression are often those represented by war.[965] [966] The differentiation of different kinds of states of emergency is a common solution in many countries, and a positive one: different types of state of emergencies allow for the utilisation of different and proportionate37 measures.
14.2.2 Procedure for Declaring the State of Emergency
In most countries, the power to declare emergency rule is divided between the legislative and executive branch. Normally, the executive proposes and the legislature approves the declaration of emergency rule.[967] In some countries, the state of emergency is already in force after a decree has been issued by Government and awaiting approval by Parliament, in other cases prior parliamentary approval is mandatory before the state of emergency comes into force, see Table 14.2.
In constitutional reality about 80% of all constitutions vest the right to declare a state of emergency in the head of state, however usually not single-handedly.[968] Around 10% of constitutions allocate the competence to the entire cabinet, which extends decision making from one person to many. Another 10% call alone upon the legislature, a percentage that has increased significantly over the past three decades. Over 50% of the constitutions have the need for an approval by a second power. Among those apply 40% for the first or only chamber of the legislature, 19% to both chambers and 14% to the Government.[969]
War/aggression is mentioned by 46.8% of constitutions in 2011, internal security by 38.8%, a national disaster by 26.3%. Amongst the vaguer conditions “general danger” hits an alarming 25.7%, the broad term of an economic emergency which would probably allow many countries to call for a state of emergency by only 7.1% and the dangerously vague definition of a threat to the constitution system by merely 2.7% of constitutions. It must be remembered that the triggers for a state of emergency ought to be tight and connect with a political crisis as it shifts significant powers into the hands of the executives and temporarily suspense the original order foreseen by a constitution.[970] Interestingly, richer countries are less likely to declare a
Table 14.2 | Authorising a state of emergency
| Declared by | Clause | Countries |
| Qualified parliamentary majority | “Any determination that the federal territory is under attack by armed force or imminently threatened with such an attack (state of defence) shall be made by the Bundestag with the consent of the Bundesrat. Such determination shall be made on application of the Federal Government and shall require a two-thirds majority of the votes cast, which shall include at least a majority of the Members of the Bundestag.” | Germany (art. 80 a) |
| Parliament | “Parliament has the authority to declare a state of war (...).” Ireland (art. 28) | Ireland (art. 28), Italy (art. 78), Philippines (art. 23) |
| Council of Ministers | “In the event of natural disaster, dangerous epidemic diseases or a serious economic crisis, the Council of Ministers meeting under the chairpersonship of the President of the Republic may declare a state of emergency (...).” Turkey (art. 119) | Turkey (art. 119), Finland |
| Chamber of Deputies at the request of the Government | “Under extraordinary circumstances of an urgent and unforeseeable need, the President of the Republic may, upon the proposal of the Cabinet, issue acts of legislative content.” | Greece (art. 44) |
| President and approval by Parliament | “The President of the Russian Federation, in circumstances and according to the rules envisaged by the federal constitutional law, shall introduce a state of emergency in the territory of the Russian Federation (..‘‘The jurisdiction of the Council of the Federation includes: (...) approval of the decree of the President of the Russian Federation on the introduction of a state of emergency; (...)” Russia (art. 88, 102) Parliamentary approval required within 72 hours Bolivia (art. 138) | Russia (art. 88, 102), Lithuania, Slovakia and Romania, Bolivia (art 138), Equador (art 166) |
Table 14.2 (continued)
| Declared by | Clause | Countries |
| President to notify the Constitutional Court and the National Assembly within 48 hours. The National Assembly can end the state of emergency at any time. Ecuador (art. 166) | ||
| Monarch after extensive consultation and addressing a message to the nation | When the integrity of the National territory is threatened or [in case] that events are produced which obstruct the regular functioning of the constitutional institutions, the King can, after having consulted the Head of Government, the President of the Chamber of Representatives, the President of the Chamber of Councillors, as well as the President of the Constitutional Court, and addressing a message to the Nation, proclaim by Dahir the state of exception. | Morocco (art. 59.1) |
| Federal executive and the federal legislature ratify by simple majority | “(...) the Council of Ministers shall have power, by a decision taken in this respect, to issue a Proclamation of Emergency: Provided that the President and the Vice-President of the Republic shall, separately or conjointly, have a right of veto against any such decision (...). The House of Representatives shall have the right to reject or confirm such Proclamation of Emergency. In the case of rejection the Proclamation of Emergency shall have no legal effect. Cyprus (art. 183) | Cyprus (art. 183), Canada |
| Assumed approval of state of emergency if no objection was made by Parliament | “This decree shall be brought to the Parliament when its convocations become possible, even if its term has ended or if it has been dissolved and, in any case, not later than fifteen days after its issuance.” Greece (art. 48) | Greece (art. 48), Malta, Portugal |
Table 14.3 | | Preconditions to call a state of emergency
| Types of emergencies | Clause | Countries |
| War/aggression | “In case of a state of war or mobilization due to external dangers or of manifest threat to the national security, or in case of armed revolt against the Democratic regime, the Parliament may (...) establish extraordinary tribunals” | Greece (art. 48) |
| Natural disaster | “The government may declare a state of emergency in cases of natural catastrophe, ecological or industrial accident, or other danger which to a significant extent threatens life, health, or property or domestic order or security.” (Czech Republic, art. 5.1.) | Portugal (art. 19), South Africa (art. 37.2.), (Czech Republic, art. 5.1.) |
| Economic emergency | “In time of internal turmoil, external menace, natural calamity or a grave financial or economic crisis,...” | South Korea (art. 76.1) |
| Protection of independence and national life | “If because of war, threat of war, serious rebellion, natural disasters or similar conditions, protection of independence and national life become impossible through the channels specified in this constitution, the state of emergency shall be proclaimed by the President..,” | Afghanistan (art. 143) |
state of emergency in case of terror, countries with presidential systems are more likely to declare it. When the constitution provides an easy entry into a state of emergency and equips the executive with substantial additional powers, the temptation for a declaration is greater.[971] Countries are also tempted to declare a state of emergency in the case of a natural disaster if the associated cost are not high.[972] For an overview of the preconditions to call a state of emergency, see Table 14.3.
14.2.3 Substantive Requirements
14.2.3.1 Shift of Competencies During Emergency
Emergency rule may or may not involve changes in the distribution of powers among organs of the State or shifts in the competences of such organs (see Table 14.4).[973] Normally, the declaration of a state of emergency involves the transfer of additional powers to the executive.[974] Some constitutions specify the powers that
Table 14.4 | | Shift of power during a state of emergency
| Competencies | Clause | Countries |
| Shift of competencies from the state and local authorities to the central government | “Parliament has the authority to (...) vest the necessary powers into the Government.” Germany (art. 87a) | Germany (art. 87a), Canada, Italy (art. 78) |
| Transfer of additional powers to the executive | “During a state of defence or a state of tension the Armed Forces shall have the power to protect civilian property and to perform traffic control functions to the extent necessary to accomplish their defence mission. (...) Armed Forces may also be authorised to support police measures for the protection of civilian property; in this event the Armed Forces shall cooperate with the competent authorities.” | Germany (art. 87a), Turkey, Croatia |
| Introduction of special forms of Government over certain territories, so the power of the local authorities may be temporarily restricted or suspended | “Parliament shall: establish the National Defence Council in the event of a state of war or an imminent danger of armed attack by a foreign power” Hungary (art. 48) | Hungary (art. 48), Russia |
| Transfer of certain police powers to the military authorities | “In case of a state of war or mobilization due to external dangers or of manifest threat to the national security, or in case of armed revolt against the Democratic regime, the Parliament may (...) establish extraordinary tribunal Greece (art. 48) | Greece (art. 48), Portugal and Turkey |
| Possibility to issue decrees having the force of law during states of emergency | “During the state of emergency, the Council of Ministers, meeting under the chairpersonship of the President of the Republic, may issue decrees having the force of law on matters necessitated by the state of emergency.” | Turkey (art. 121) |
accrue to the executive or other bodies and the limits on those powers. A constitutional framework of emergency powers might (1) transfer powers ordinarily exercised by one branch of Government to another; (2) authorize the use of powers or measures not ordinarily permitted within the constitutional framework; or (3) permit the executive or other body to derogate from fundamental constitutional rights or freedoms, in whole or in part.[975]
14.2.3.2 Protection and Limitation of Human Rights
The protection of human rights is perhaps the most important element for liberal democracies as historical examples show and as it is outlined above. Table 14.5 demonstrates that constitutional provisions differ enormously. From the author’s experience too little research and too little attention has been dedicated to these significant provisions.
The protection of national security and public safety may justify restrictions of the full enjoyment of certain human rights, and even derogations from certain human rights obligations.[976] Restrictions of human rights and freedoms, and derogations must, however, be regulated by law and preferably have a foundation in the constitution.[977] This constitutes a vital guarantee of the maintenance of democracy and the rule of law. The law must indicate in which cases limitations may be justified and preferably should define the states of emergency that may justify derogating measures, in order to create guarantees against abuse of the power to take restricting or derogating measures for other aims or to a larger extent than is allowed under domestic law and the European Convention of Human Rights (ECHR) or other regional human rights obligations that a country has adopted.[978] The power to derogate fundamental rights is often observed in emerging constitutions. If only some rights are suspended, most constitutions provide an explicit list.[979] A balance has to be found between national security, public safety and public order, on the one hand, and the enjoyment of fundamental rights and freedoms, on the other hand. The assessment of the fairness and proportionality of the balancing of public and private interests has to be determined by the concrete situation and circumstances. Importantly however, the right or freedom concerned may not be curtailed in its essence and interventions should be reduced to a minimum.[980] Recommendations including those relating to proportionality will be set out further down under Sect. 14.3.3.
14.2.3.3 Important Restrictions
As elaborated in Table 14.6 an important mechanism is often that no constitutional amendments can be passed during the state of emergency. Further, it is often enshrined that all decrees issued by the President are only valid until the state of emergency has ended. Very critical is a provision that the decree power is conferred without time limitation as done in Hungary in March 2020.[981] More than 15% of constitutions explicitly exclude the possibility of dissolving the legislature during the
Table 14.5 | | Protection and limitation of human rights under a state of emergency
| Human rights limitations | Clause | Countries |
| All fundamental rights protected. | The fundamental rights and freedoms provided by this constitution remain guaranteed. | Morocco (art. 59.3) |
| Law on Human Rights and Freedoms recognises a core area of human rights that cannot be restricted even under emergency rule. Non-derogable rights are explicitly listed. | Under no circumstances shall a declaration of a state of siege or a state of emergency affect the rights to life, personal integrity, personal identity, civil capacity and citizenship, the non-retroactivity of the criminal law, defendants’ right to a defence, or freedom of conscience and religion. | Portugal (art. 19.6) |
| Non-derogable rights are listed in numbers. | The President of the Republic may not suspend the rights and guarantees established in articles 23; 24; 25, No. 3; 26, No. 3; 27; 29; 33, nos. 2.1 (final part), 3 and 5; 34, except nos. 2 and 8; 35; 36; 37; 38; 39; 40; 41; 42; 43; 44; 46; 47; 48; 50; 51; 56; 57; 58; 59; 60; 61; 62; 63; 64; 65; 67; 68, first section; 69; 70; 71; 72; 73; 74; 75; 76; 77; 78; 79; 80; 81; 82; 84; 85; 87; 89; 90 and 91. (Nicaragua) | Nicaragua (art. 186); Armenia (art. 76) including further obligations under International law, Russia (art. 56.3), Ukraine (art. 64) |
| Individual rights are singled out | Forced labour shall not be imposed, except by virtue of a provision of law enacted for the purpose of averting public calamity, or when a state of emergency or martial law is declared..., | Thailand (art. 30) |
| Suspension or restriction only after approval by highest officials including judiciary | During the state of emergency, the President can, after approval by the presidents of the National Assembly as well as the Chief Justice of the Supreme Court, suspend the enforcement of the following provisions or place restrictions on them: 1. Clause two of Article 27; 2. Article 36; 3. Clause two of Article 37; 4. Clause two of Article 38. | Afghanistan (art. 145) |
| 1. The rights recognized in sections 17 and | Spain (art. 55) |
Table 14.5 (continued)
| Human rights limitations | Clause | Countries |
| Enumerative list of very few fundamental rights which can be limited. | 18, subsections 2 and 3, sections 19 and 20, subsection 1, par. a) and d), and subsection 5; sections 21 and 28, subsection 2, and section 37, subsection 2, may be suspended.... | |
| Enumerative list of fundamental rights which can be limited explicitly spelled out. | When a state of siege decreed under art. 137,1, is in effect, only the following measures may be taken against individuals: I. obligation to remain in a determined place; II. detention in a building not destined for persons accused or convicted of common crimes; III. restrictions regarding inviolability of correspondence, secrecy of communications, providing information and freedom of press, radio broadcasting and television, as provided by law; IV. suspension of freedom of assembly; V. search and seizure in one’s domicile; VI. intervention in public utility companies; VII. requisitioning of property. (Brazil) | Brazil (art. 137), Netherlands (art. 103.2) |
| Limitation of human rights depending on the cause of the emergency. | 1. During the state of war or state of emergency the rights and freedoms provided for in articles: 15; 18; 19; 20; 21; 24; 25; 29; 30; 31; 32; 34; 39, par. 1; 41, par. 1, 2, 3, and 5; 42; 43; 48; 54; 55 may not be limited. 2. During the state of natural disaster the rights and freedoms provided for in articles: 37; 38; 41, par. 4; 49; 51 may be limited. | Albania (art. 175) |
| All fundamental rights can be entirely suspended other than those committed to under international law | In times of war, mobilization or a state of emergency, the exercise of fundamental rights and freedoms may be partially or entirely suspended or | Turkey (art. 15.1) |
Table 14.5 (continued)
| Human rights limitations | Clause | Countries |
| measures derogating the guarantees embodied in the constitution may be taken to the extent required by the exigencies of the situation, as long as obligations under international law are not violated. |
Table 14.6 | | Restrictions imposed by a state of emergency
| Restrictions | Clause | Countries |
| Term of the legislative assemblies are extended during the emergency period | “Any electoral terms of the Bundestag or of Land parliaments due to expire during a state of defence shall end six months after the termination of the state of defence.”), Germany (art. 115h) | Czech Republic (Appendix B, art. 10) (in a state of emergency), Germany (art. 115h) (in a state of defence), Turkey (art. 113), Poland (art. 228), Lithuania (art. 143) (all above in a state of war), Slovenia (art. 81) and Hungary (art. 48) (if more than one-third of deputies do not oppose it) |
| Dissolution of Parliament during the period of emergency is prohibited | “The Bundestag shall not be dissolved while a state of defence exists”), Germany (art. 115h) | Germany (art. 115h), Spain (art. 116), Portugal (art. 172), Greece (art. 48), Poland (art. 228), Hungary (art. 48) and Russia (art. 109) |
| Constitution may not be amended during the time of emergency | “This Basic Law may neither be amended nor abrogated nor suspended in whole or in part by a law enacted pursuant to par. (2) of this article”, Germany (art. 81a) | Germany (art. 81a), Romania (art. 152), Poland (art. 228), Lithuania (art. 147), Kyrgyzstan (art. 80) and Hungary (art. 50) |
| Decrees are automatically no longer valid after the emergency unless confirmed by Parliament | A negative example here is the emergency in Malaysia in 1969 where provisions remained in place. |
state of emergency.[982] Others protect the position of the Head of Government, such as Armenia in art 115.4 preventing a non-confidence vote or a confidence vote (art. 157) to take place or in Georgia, where according to art. 48 an impeachment of the President is inadmissible.
Table 14.7 | Time restrictions on a state of emergency
| Time limit | Clause | Countries |
| 48 hours | “President of Georgia, through media, warns the population on declaring state of emergency on the entire territory of the country or in its part and within 48 hours submits his decision to the Parliament of Georgia for approval. If the Parliament refuses to approve the decision of President, the state of emergency will be considered cancelled.” | Georgia (art. 2 par. 2 Law of Georgia on state of emergency) |
| 7 or 21 days | 2. A declaration under subsection (1) of this section, if not sooner revoked, shall cease to have effect— 1. a.in the case of a declaration made when Parliament is sitting or has been summoned to meet within seven days, at the expiration of a period of seven days beginning with the date of publication of the declaration; or 2. b.in any other case, at the expiration of a period of 21 days beginning with the date of publication of the declaration. | Botswana (art. 17) |
| 30 days, subject to extension | “Extraordinary measures introduced by means of decrees shall remain in force for thirty days, unless the National Assembly or, if it is prevented from acting, the committee of the National Assembly dealing with national defence issues extends them.” Hungary (art. 50) | Hungary (art. 50), Czech Republic (art. 6) |
| 2 months | “The Proclamation of Emergency shall cease to operate at the expiration of two months from the date of confirmation by the House of Representatives (...)” | Cyprus (art. 183) |
| 90 days | “In the case of threats to the constitutional order of the State, to security of the citizenry or public order, the President of the Republic may, on request of the Council of Ministers, introduce for a definite period no longer than 90 days, a state of emergency in a part of or upon the whole territory of the State.” | Poland (art. 230) |
| 6 months | “(...) may declare a state of emergency in one or more regions or throughout the country for a period not exceeding six months.” Turkey (art.119) | Turkey (art.119), Latvia, Lithuania, France |
| 40 years | Jieyan decree issued Taiwan from 1949 until it was dismantled in stages from 1987 | Taiwan |
14.2.3.4 Effective Period of the State of Emergency
Many constitutions provide a time-limit for emergency rules, see Table 14.7.[983]
While indefinite states of emergency are unfortunately not uncommon (e. g. Israel, Malaysia), many constitutions provide that a state of emergency will lapse after a specified period if it is not renewed or extended by the legislature. Some constitutions do not provide for a lapse, nor do they specify how a state of emergency ends.[984] This carries a considerable risk of abuse if these periods could be prolonged again and again.[985] Therefore it is recommended to limit the options for a renewal during the term of office of a Government official. An example provides the German constitution: “After the expiration of this period, no further declaration of a state of legislative emergency may be made during the term of office of the same Federal Chancellor.”[986] An extension is generally dependent on the approval of the legislature. Interesting is the proposal for a mechanism to increase the approval requirements to prolong a state of emergency the longer the state of emergency lasts.[987]
14.2.4 Legal Consequences
Various measures under a state of emergency can affect the constitution and its fundamental rights. The main ones are that of derogation and suspension or alternatively a restriction.[988] In most cases the exercise of emergency powers allows the restriction or even suspension of rights and liberties beyond what is acceptable in normal times. However, some in constitutions the restriction of rights is not very different in emergency situations. For example, in the United States, a state of emergency is not considered to change the executive’s powers, but rather to allow the exercise of pre-existing powers that may be implemented in emergencies.[989] Modern constitutions generally at least protect the core of the human rights catalogue. Interestingly, empirical study seems to suggest that constitutions which enumerate non-derogable rights often record more human rights abuses in cases of a state of emergency than others which do not specifically list them.[990] One reason for that could be that countries which list certain rights usually exclude many others fundamental rights which then are derogable.
Table 14.8 | | Legislative control during a state of emergency
| Legislative control | Clause | Countries |
| 1. In accordance with the law, the President of Romania imposes the state of siege or emergency upon the entire country or upon certain territorial-administrative units and asks Parliament for the approval of the measure adopted within a maximum time period of five days following its adoption. 2. If Parliament is not in session, it will be convened by law no later than 48 hours after the declaration of martial law or of the state of emergency and will remain in session throughout these periods, Romania (art. 93) | Romania (art. 93), Philippines (art. 18.3, within 24 hours) | |
| Parliament participate in the decision-making process under all possible and foreseeable conditions | 2. A state of alarm shall be proclaimed by the Government, by means of a decree agreed in Council of Ministers, for a maximum period of fifteen days. The Congress shall be informed and must meet immediately, and without its authorization the said period may not be extended. The decree shall specify the territory to which the effects of the proclamation apply. 4. A state of siege (martial law) shall be proclaimed by overall majority of Congress solely on the Government’s proposal. Congress shall determine its territorial extension, duration and terms. | Spain (art. 116) |
14.2.5 Legislative Control
Legislative control over the acts and actions of emergency rule authorities and special procedures for such control are important for the realisation of the rule of law and democracy (see Table 14.8).62 In most of the democratic constitutions the executive has the right to declare emergency rule, subject to parliamentary approval. The monitoring of governmental compliance with the state of emergency boundaries and the question of by whom, how and when an emergency rule is to be terminated also cannot be left to executive but must be vested within Parliament. This also implies a continuity of parliamentary life during the period of emergency. For that reason, some constitutions explicitly state that the legislature cannot be dissolved during the exercise of emergency powers.[991]
Interestingly there appears to be a significant difference between the civil law system and the common law system which is usually referred to as “martial law” in respect to monitoring a state of emergency. The French system (Etat de siege) uses the legislature as monitoring authority, whilst the common law system looks at the judiciary for monitoring its application.[992] However, a judicial review usually can only take place ex-post, so after the state of emergency has expired, whilst monitoring by the legislature can occur during the emergency and is therefore recommended. Martial law can be characterized by ”the absence of statutory foresight for its initiation and use”.[993]
It may be recommended that the emergency situations capable of giving rise to the declaration of states of emergency should be clearly defined and delimited by the constitution and in all cases there should be a parliamentary monitoring mechanism on the declaration and extension (and termination) of states of emergency. Almost all constitutions contain provisions on a parliamentary control mechanism, and in some constitutions there are also special procedures for legislative control.[994] Furthermore, international monitoring and control has become more widespread over recent years and whilst so far uncommon, a constitution could also foresee an opening clause to the UN in that respect to ensure that its country is not deviating substantially from international practice.
14.2.6 Judicial Review
The concept of emergency rule is founded on the assumption that in certain situations of political, military and economic emergency, the system of limitations of constitutional Government has to give way before the increased power of the executive (including military power in a martial law).[995] However, emergency rule is a legal regime governed by the principles of legality of administration, based on the rule of law.[996] The rule of law means a system where governmental agencies must operate within the framework of law, and their actions are subject to review by independent courts. In other words, the legal security of individuals should be guaranteed. First, consideration may be given to whether there is any judicial review of the executive act declaring emergency rule or the legislative resolution approving it. No general agreement about the appropriateness of judicial review exists concerning the declaration of emergency rule.[997] Because of its political nature the justiciability of a declaration of emergency presents special and difficult questions and problems. Those who say that there should be no control at all by the judiciary get less and less the most claim that a certain control is appropriate.[998] The author sees no reason why judicial review should be interrupted. As mentioned before, predominantly common law jurisdictions rely on an ex-post judicial control. (Table 14.9).
Courts that are formally prohibited by the text of a constitution from reviewing emergency powers might yet draw on first principles and generalities about the rule of law to find constitutional justifications for doing so. But even when judicial review of the invocation or exercise of emergency powers is not formally prohibited by the constitution, courts can be deferential to the executive. It is therefore important to distinguish the threshold question of whether the courts have the formal power to review, from the question whether they will or ought to defer to the executive on questions of national security.[999]
14.3