Remarks
Recommendations will be confined to matters touching upon human rights, because national legislation and regulations differ greatly on the institutional aspects of the problem. The following recommendations can be made in order to maintain certain legal standards for a state of emergency:
14.3.1 Specification of the Emergency
An emergency capable of giving rise to the declaration of states of emergency should clearly be defined and limited by the constitution.[1000] In other words, the existence of a real and imminent danger should be clearly specified.[1001] The above condition is expressed in the four main human rights treaties, the European Convention of
Table 14.9 | | Judicial review of a state of emergency
| Judicial review | Clause | Countries |
| No judicial review of the executive act declaring or the legislative resolution approving | Turkey, Finland, Hungary, Albania and Switzerland | |
| Jurisdiction to review the procedural arrangements for the enactment of emergency legislation | “The behaviour of the President may be brought under review (...) by any court, tribunal or body appointed or designated (...)” | Ireland (art. 13) |
| Courts may control if the declaration is compatible with international commitments | “The following shall be within the jurisdiction of the Council of Federation: approval of edict of the President of the Russian Federation on the introduction of a state of emergency.” | Russia (art. 102), Cyprus |
| The Constitutional Court decides whether a decision on declaration of the martial law, or the state of emergency, and relating decisions were issued in compliance with the constitution or constitutional laws. | Slovakia (art. 129) | |
| The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of 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 its filing. | Philippines (art. 18.3) | |
| Extensive judicial review | “The Federal Constitutional Court shall rule: 1. on the interpretation of this Basic Law (...); 2. in the event of disagreements or doubts concerning the formal or substantive compatibility of federal law or Land law with this Basic Law(...); 2a. in the event of disagreements whether a law meets the requirements of par. (2) of art. 72, on application of the Bundesrat or of the Government or legislature of a Land; 3. in the event of disagreements concerning the rights and duties of the Federation and the Lander (...)” Germany (art. 93) | Germany (art. 93), Portugal, Lithuania and Kyrgyzstan |
Human Rights and Fundamental Freedoms (ECHR),[1002] the International Covenant on Civil and Political Rights (ICCPR), the Revised Arab Charter of Human Rights (RevArabChHR; 2004) and the American Convention on Human Rights (ACHR) as an “exceptional threat”. According to the principle of exceptional threat, the derogation from human rights standards in emergencies is legitimate only in case of “war or public emergency threatening the life of the nation”.[1003]
14.3.2 Notification
A de facto state of emergency should be prohibited, and an emergency rule should be officially declared. The corresponding condition in the three main western human rights treaties is the requirement of notification, whereby the other states party shall be informed of the provisions derogated from and the reasons therefore.
14.3.3 The Principle of Non-derogation or Limitation of Fundamental Rights
The principle of non-derogation is a critical principle and holds that there is core of fundamental rights that may not be infringed or limited, even in an emergency.[1004] The constitution should clearly specify (and ideally in spelling out the actual restrictions and not only referring to the number of the statutes) which rights can be suspended and which rights do not permit derogation and should be respected in all circumstances.[1005]
Constitutions have taken different pathways to protect the fundamental rights.
Generally, four different terms are used to discontinue rights: Rights are either derogated, suspended, limited or restricted. What is the difference in the terminology? The words derogation and suspension are interchangeable[1006] and make no difference. They imply that a certain right is abandoned for a specific time. The word restriction or limitation can mean that a right can only be partly exercised, however that a core remains. A derogation or suspension is therefore by itself an absolute abandonment of a right for a certain period, whilst a limitation or restriction is less than that, as it upholds part of the right.The traditional and currently most wide-spread concept[1007] is to permit a suspension of fundamental rights in case of a state of emergency, but to constitutionally enshrine a list of non-derogable rights. The minimum list of non-derogable rights in the four main human rights treaties (ECHR, ICCPR, RevArabChHR, ACHR) contain four such (first generation) fundamental rights: the right of life (art. 6), the right to be free from torture and other inhuman or degrading treatment or punishment (art. 7), the right to be free from slavery or servitude (art. 8), and the principle of non-retroactivity of penal laws (art. 16).[1008] These four non-derogable rights which constitute the “irreducible core” of human rights and should as a bare minimum be explicitly phrased and sanctioned in the constitution.[1009] Countries such as Turkey as outlined in Table 14.5, which allow the suspension or restriction of all fundamental rights as long as obligations under international law are not violated, therefore usually allocate maximum rights to the executive to the detriment of the rights that citizens enjoy, which cannot be recommended. Other non-derogable rights would be the right against punishment for breach of contract (art. 11 ICCPR), freedom of thought, conscience and religion (art. 18 ICCPR), and an inclusion of fundamental rights concerning the due process of law should further be included.
These comprise minimum guarantees against arbitrary detention and other guarantees protecting the right to a fair trial; furthermore, recourse to courts against acts and actions of the emergency rule authorities should be permitted.[1010] The foregoing rights and guarantees should be enjoyed by all without discrimination.[1011] Many of the human rights treaties have enshrined reporting obligations of a country derogating human rights under the treaties which allows for some monitoring. The Syracusa Principles on the Limitation and Derogation Provisions of the ICCPR[1012] provide a further guidance to derogation which could additionally be adopted by ordinary law and also include reference to the principle of proportionality as outlined below. However, neither the the Syracusa Principles, nor the three main human rights treaties prohibit a derogation of the freedom of expression and information, which are now often under threat because of terrorism or other security concerns triggering a state of emergency. A prohibition of censorship and the non-derogation of the freedom of expression[1013] and information are however considered by the author as an indispensable element of a functioning democracy upholding the rule of law and should therefore be guaranteed and upheld expressis verbis by a modern constitution also during a state of emergency.[1014]Other countries have chosen to rely on limitations rather than the suspension of fundamental rights, which generally provide greater liberty to citizens. Germany notably has developed a cascading system of limitations of fundamental rights in three intervals: (1) Firstly a number of fundamental rights provisions can be limited by ordinary laws, both within or outside of a state of emergency. (2) Secondly, some fundamental rights contain explicit references to a state of emergency where parts of the rights can be limited pursuant to a law only if Parliament so determines.
An example of this is freedom of movement, art 11 par. 2 BL. The same level of escalation can allow for permissions granted by law that are otherwise not permitted, such as a silent observation of the communication of citizens according to art 10 par 2 BL, again only pursuant to a specific law. These extraordinary permissions result in a limitation of rights otherwise enjoyed by citizens. The third (3) and most restrictive interval is the lifting of limitations otherwise granted to protect fundamental rights. As an example, suspects can be kept in custody for four days instead of one day according to art 115c par. 2 Nr. 2 BL. To prevent that limitations are abused and eradicate the core of fundamental rights completely, the German constitution has enshrined principles such immutability of certain provisions in art 79 par.3 BL and the continuation of the core of any fundamental rights in art 19.2 BL.[1015] Whilst relying on limitations instead of suspensions requires more advanced and detailed constitutional drafting it allows for a more staggered and thus responsible approach in a crisis.[1016]Finally, some countries such as Morroco which have stated outright in their constitution of 2011 (art. 59 par.3) that fundamental rights and freedoms remain guaranteed in a state of emergency. Whether such concepts may serve as a role model for the future will be assessed in time if such principle withstands a critical test of constitutional reality. This may be doubtful as e.g. the Corona pandemic has demonstrated that it is important for countries to be able restrict certain fundamental rights, e.g. the freedom of movement of citizens. Prohibitions of these important fundamental rights should be vested in the constitution and not in ordinary law.
14.3.4 The Principle of Proportionality
The principle of proportionality is a second critical principle that regulates the conduct of states in times of emergency. This principle has been adopted by most of the jurisdictions and applied manyfold in domestic and international case law, but it is also expressed in article 4 of the ICCPR by providing that measures that derogate from fundamental rights are permissible in a time of public emergency which threatens the life of the nation but only to the extend strictly required by the exigencies of the situation.[1017] The emergency measures and derogations from fundamental rights and liberties should be proportionate to the danger.[1018] In other words, derogations/suspensions and restrictions are acceptable only in case of war or a public emergency threatening the existence of the nation; furthermore, such measures should be proportionate to the emergency.
The principle of proportionality also includes what the ACHR has called “the principle of temporariness” which means that emergency measures cannot last longer than the emergency itself, and the limitations that they bring about should be applied only in those geographical areas affected by the emergency. On the other hand, many of the measures taken under emergency rule do not imply any derogation from human rights standards.[1019] This is especially true of measures at the lower level of emergency. Quite often, such measures only regulate the behaviour of people or the use of their property, or the executive may be authorised to take measures which otherwise would require legislative action.[1020]14.3.5 Supervision
Even in a state of public emergency the fundamental principle of the rule of law should prevail.[1021] In other words, the judicial human rights should continue to exist and e.g. no-one should be put to trial before a court other than one previously determined by law.[1022] Abolishment of rights may only last for as long as, and may only have a scope that is “strictly required by the exigencies of the situation”. Their necessity and proportionality should be interpreted very restrictedly and must be subject to domestic and international supervision.[1023]
14.3.6 Conclusion
Emergency powers raise fundamental issues about law and constitutionalism. The invocation of emergency powers throws into the question the normative principles governing state conduct as well as the usual relationship among the branches of power; as power is concentrated into one branch of power, typically the executive, and the role of the other branches in checking the powers come under stress. More fundamentally, the invocation of emergency powers throws into the question the role of law itself in limiting state power.[1024] The concentration of power in a particular branch or agency of the Government is an important test of the depth of a society’s commitment to the goal of moderating state power through law; but it also invites a closer examination of the informal, social, political mechanisms that might complement or compete with formal constitutional mechanisms in limiting power in times of emergency.[1025] Lawmakers are encouraged to pay particular attention to a well designed and balanced temporary suspension or limitation of fundamental rights.