Overview of the State of Emergency

14.1.1 Definition

A state of emergency has been called by some a constitutionally approved dictator­ship for a limited period of time.¹ In more detail, state of emergency provisions are usually defined by constitutional provisions which “specify who can declare an emergency, and which condition an emergency can be declared, who needs to approve the declaration in which actors have which special powers once it has been declared, who needs to approve the declaration, and which actors have which special powers once it has been declared that the constitution does not assign to them outside emergencies.”²

The length of the definition already demonstrates that in constitutions across the world and in constitutional reality opinions vary of what exactly constitutes an “emergency”, who has the power to decide whether it exists and what consequences follow.

An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.

¹ Compare the book “Constitutional Dictatorship” by Rossiter.

²Bj0rnskov and Voigt (2018a), p. 103.

W. Babeck (*)

Sydney, Australia

e-mail: wbabeck@writingconstitutions.com

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 W. Babeck, A. Weber, Writing Constitutions, https://doi.org/10.1007/978-3-030-94602-9_14

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to the emergency in a manner consistent with its fundamental normative commitments.^[932]

14.1.2 Purpose and Function of the Rule

Emergency powers pose a serious challenge to one key objective of modern consti­tutionalism—limiting state power. It means re-establishing constitutional order by temporarily suspending it.^[933] How, if at all, can a legal order respond to an emergency within a constitutional framework? Is it consistent with the general aims of constitu­tionalism for a constitution to authorize the suspension of substantial constitutional guarantees, in whole or in part in times of emergencies? Basic questions about the nature of constitutional Government are never far from seemingly innocuous questions about emergency powers.^[934] Public emergency situations involve both derogations from normal human rights standards and alterations in the distribution of functions and powers among the different organs of the State.^[935] History has shown that temporary abolishment of fundamental human rights occurring in the context of states of emergency have given rise to some of the gravest violations of human rights.^[936] Nevertheless, the principal international human rights instruments of our time usually contain a derogation clause with regard to emergencies.

Climate change will lead to a significant increase of emergencies, and we strongly recommend to countries to get their constitutional emergency clauses in order so that a good balance between executive measures and human rights protection is found and that a supervision is ensured.

14.1.3 Norm Addressee

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. Normally, the declaration of a state of emergency involves the transfer of additional powers to the executive.^[940]

14.1.4 Historical Context and Corona Virus Responses

While special powers in emergency situations are already visible in the Senatus consultum ultimum in the Senate of the late Roman republic, emergency powers were not required when the absolute power was vested in the monarch. Emergency powers became more prevalent when constitutional monarchies were established and was first implemented by France in 1795. The French Bayonne constitution from 1808 served as a model for many Latin American constitutions including Argentina in 1819, Chile in 1822, Brazil in 1824, the United Provinces of the Rio de la Plata in 1824, Bolivia in 1826, Peru in 1826, Ecuador in 1830, Uruguay in 1830 and Venezuela^[941] in 1830.^[942]

The state of emergency can be, and often has been, abused by being invoked.

After the Reichstag was set on fire, an attack blamed on the communists, Adolf Hitler declared a state of emergency using article 48, and then had President von Hindenburg sign the Reichstag Fire Decree, which suspended the Weimar Constitution for the entire duration of the Third Reich: the Weimar Constitution was in fact never actually repealed by Nazi Germany, but “indefinitely suspended”.^[945] After the prohibition of the Communist Party of Germany the Nazi Party was free to vote in the March 23, 1933 Enabling Act (Ermachtigungsgesetz), which enabled Reichskanzler Adolf Hitler and his cabinet to enact laws without the participation of the Reichstag. These two laws implemented the Gleichschaltung, the Nazis’ institu­tion of totalitarianism.^[946]

Today, state of emergencies remain a common instrument. Between 1985 and 2014 at least 137 countries declared a state of emergency at least once.^[947] Examples include France following the various terrorist attack in Paris in November 2015 which ended after five extensions in November 2017,^[948] Venezuela in May 2016,^[949] Ethiopia in October 2016, Turkish President Erdogan in July 2016 following a failed coup attempt on 15 July 2016 leading to the suspension of ten thousand of govern­ment employees, or the Military in Myanmar in 2021.

Germany could not declare a state of emergency, some defining it as an adminis­trative and health crisis, but not a crisis affecting the political ability of a country to conduct its affairs,^[953] however, the German constitution also does not mention natural disasters or public emergencies as a possible cause for a state of emergency.^[954] Therefore Germany had to rely upon an ordinary law,^[955] the Infektionsschutzgesetz, which contains significant enumerated restrictions on fundamental rights.^[956]

Other countries also do not have constitutional provisions for a health state of emergency such as Australia which formed a bipartisan National Cabinet, consisting of the (federal) Prime Minister and six State Premiers plus the two Chief Ministers of the two large Territories to overcome the challenges of federalism and relied many measures on the Biosecurity Act 2015 (Cth).^[957]

Some emergency measures in respect of the COVID-19 pandemic lead to public criticism: The Hungarian state of emergency measures was considered inadequate by the Council of Europe: on 30 March 2020, the Hungarian Parliament past legislation (137 to 53 in favour)^[958] creating a state of emergency without a time limit, granting President Orban decree power and the suspension of Parliament with no elections, despite of the concerns raised by the Council of Europe and a petition signed by

Fig.

100,000 people.^[959] But the suspension was revoked by Parliament after these critical interventions.^[960]

14.1.5 Structural Approach

In approaching emergency powers (see Fig. 14.1), most modern constitutions will provide, implicitly or explicitly, answers to the following questions: Who decides whether and when on what basis emergency powers may be invoked? Under what conditions may they be exercised? What powers accrue when a state of emergency is declared? What checks exist on the exercise of those powers? How does an emergency end?^[961]

Table 14.1 I I Types of emergency rules

14.2