PROVIDING FOR THE UNEXPECTED: CONSTITUTIONAL EMERGENCY PROVISIONS

Israel Yearbook on Human Rights

Volumn 33, Issue , 2003, Pages 13-43

  Gross, Oren ^a  

^a UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

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EID: 40749147889     PISSN: 03335925     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789047413134_003     Document Type: Chapter

References (210)

1. See, e.g., C.A. (Civil Appeal) 6821/93, United Mizrachi Bank Ltd. v. Migdal Coop. Vill., 49(4) PiskeiDin (Reports of the Israel Supreme Court; hereinafter: P.D.) 221, 352 (Barak J.P.);
2. A. Barak, "The Constitutional Revolution: Protected Human Rights", I Mishpat U'Mimshal(Law & Government in Israel)9, 11 (Hebrew, 1992-93);
3. D. Kretzmer, "The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?", 26 IsraelL. Rev. 238 (1992).
4. R. Gavison, "The Constitutional Revolution: A Reality or a Self-Fulfilling Prophecy?", 28 Mishpatim (Hebrew Univ. L. Rev.) 21 (Hebrew, 1997).
5. R. Hirschl, "Israel's 'Constitutional Revolution': The Legal Interpretation of Entrenched Civil Liberties In An Emerging Neo-Liberal Economic Order", 46Am. J Comp. L. 427 (1998).
6. 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 This Basic Law was later repealed and replaced by Basic Law: Freedom of Occupation, [1994] S.H. 90.
7. 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 This Basic Law was later repealed and replaced by Basic Law: The Government, [2001] S.H. 158.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.
8. See M. Hofnung, Israel- Security Needs vs. The Rule ofLaw 52 (1991).
9. 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);
10. F. Ni Aolain, "The Fortification of an Emergency Regime", 59 Alb. L. Rev. 1353, 1357 (1996);
11. 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).
12. Art. 9(a) of the Law and Administration Ordinance-1948, Laws ofthe State ofIsrae (English Version ofPrincipal Legislation; hereinafter: L.S.I.) 7.
13. 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.
14. Hofnung, supranote 4, at 55-56.
15. See, e.g., M. Kohn, "'Patchwork' Emergency Legislation", 29 Mishpatim (Hebrew Univ. L. Rev.) 623 (Hebrew, 1998).
16. See also Study of the Implicationsfor 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 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").
17. 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.
18. 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).
19. Art. 38(b) of BLG.
20. '3 Art. 38(e) of BLG.
21. Art. 39(f) ofBLG.
22. Sec. 39(e) of BLG. See also H.C. 6972/98, Paritzki v. Government of Israel, 53(1) P.D. 763;
23. H.C. 2994/90, Poraz v. Government of Israel, 44(3) P.D. 317.
24. 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);
25. V.C. Jackson, "Ambivalent Resistance and Comparative Constitutionalism: Opening up Conversation on Proportionality", I U. Pa. J. Const. L. 583 (1999);
26. J. Oraa, 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);
27. S.R. Chowdhury, Rule ofLaw in a State ofEmergency 101-19 (1989) (same).
28. See T.C. Grey, "Judicial Review and Legal Pragmatism", 38 Wake ForestL. Rev. 473, 481 (2003) (use of proportionality tests intertwined with "constitutional adjudication [becoming] more openly legislative in style").
29. Barak, supra note 15, at 148 (noting that "proportionality serves as a powerful tool for a judge to realize his role in a democracy").
30. 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 BriefHistory of Emergency Powers in the UnitedStates, at v (F. Church & C. McC. Mathias eds., 1974).
31. F.M. Watkins, "The Problem of Constitutional Dictatorship", I Pub. Pol'y 324, 343-44 (C.J. Friedrich & E.S. Mason eds., 1940).
32. 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);
33. J.D. Zelman, "Recent Developments in International Law: Anti-Terrorism Legislation - Part One: An Overview", 11 J Transnat'l L. & Pol'y 183 (2001);
34. J.D. Zelman, "Recent Developments in International Law: Anti-Terrorism Legislation - Part Two: The Impact and Consequences", 11 J. Transnat'1 L. & Pol'y 421 (2002).
35. F. Ni Aolain, "The Emergence of Diversity: Differences in Human Rights Jurisprudence", 19 Fordham Int'l L.J 101 (1995).
36. 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).
37. See also M. Tushnet, "Defending Korematsu?: Reflections on Civil Liberties in Wartime", 2003 Wis. L. Rev. 273 (2003).
38. See, e.g., European Commission for Democracy through Law, Emergency Powers 4-5 (1995); hereinafter: Emergency Powers.
39. 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).
40. 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 ofthe United Nations, the 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.
41. See L.W. Beer, "Peace in Theory and Practice Under Article 9 of Japan's Constitution", 81 Marq. L. Rev. 815, 826 (1998).
42. 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).
43. See, United States Constitution, Art. 1, 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.
44. See e.g., H.P. Monaghan, "The Protective Power of the Presidency", 93 Colum. L. Rev. 1, 32-38 (1993);
45. G. Winterton, "The Concept of Extra-Constitutional Executive Power in Domestic Affairs", 7 Hastings Const. L.Q. 1, 24-35 (1979).
46. 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.
47. 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
48. 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. I1; 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 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, Art. v, Secs. 3 and 4; Constitution of North Dakota, Art. 4, Sec. 13; Art. I1, Sec. 7; Constitution of Ohio, Art. ii, Secs. Id, 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.
49. 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, supranote 24, at 4.
50. "[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).
51. H.P. Lee, Emergency Powers 4 (1984);
52. see also Ningkan v. Government of Malaysia, [1970] A.C. 379, 390
53. Publius (A. Hamilton), The Federalist Papers 153 (No. 23) (C. Rossiter ed., 1961).
54. 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);
55. Lee, supranote 31, at 5.
56. 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".
57. 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".
58. See generally V.I. Ganev, "Emergency Powers and the New East European Constitutions", 45 Am. J Comp. L. 585 (1997).
59. Under Art. 100(l)(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).
60. 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).
61. 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).
62. 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.
63. 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)).
64. 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(1) "on the basis of constitutional law".
65. 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.
66. 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.
67. See, e.g., Art. 11l 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").
68. On emergency powers under the Argentine Constitution see generally, H.R. Baudon, Estado de Sitio (1939);
69. E.L. Gregorini, ClusellasEstadode Sitio y la Armonia en la Relaci6n Individuo-Estado (1987);
70. N.J. Lugones, Leyes de Emergencia:Decretosde Necesidady Urgencia(1992).
71. See generally, P. Cruz Villalon, El Estado de Sitio y la Constituci6n: la Constitucionalizacidn de la Protecci6n Extraordinariadel Estado (1789-1878) (1980).
72. 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 ofurgency").
73. See, e.g., Art. 139 ofthe Constitution of Guatemala.
74. See, e.g., Art. 238(7) of the Constitution of Paraguay; Art. 136 of the Constitution of Brazil.
75. See, e.g., Art. 47 of the Constitution of Panama.
76. 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 calamidadpublica); State of siege; and State of war. Art. 21(V) of the Brazilian 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 (estadode 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).
77. On constitutional emergency regimes in Latin America see generally, D. Valdds, La DictaduraConstitucionalen Amdrica Latina (1974).
78. See, e.g., Art. 40(1) ofthe Constitution ofChile.
79. For example, in Guatemala, the Constitution defines "invasion, serious disturbances ofthe peace, activities against the security of the State or public calamity" as bases for introducing various emergency regimes (Art. 138).
80. See, e.g., Art. 185 ofthe Constitution ofNicaragua.
81. 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.
82. Art. 137 of the Constitution of Brazil authorizes the President ofthe 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 ofthe Dominican Republic.
83. 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 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".
84. See J.E. Finn, Constitutions in Crisis - Political Violence andthe Rule of Law 196-200 (1991).
85. 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-I 151) deals with the state of defense. See generally, Note, "Recent Emergency Legislation in West Germany", 82 Hary. L. Rev. 1704 (1969).
86. Arts. 91(1) and 87a(4) ofthe Basic Law.
87. Art. I 15a(l) of the Basic Law.
88. 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.
89. Art. 35(2)-(3) of the Basic Law.
90. Until 1982 this Act was known as the British North America Act.
91. See generally, P.W. Hogg, Constitutional Law of Canada 435-66 (3rd ed., 1992).
92. War Measures Act, 1914, SC. 1915, c. 2.
93. See P. Peppin, "Emergency Legislation and Rights in Canada: The War Measures Act and Civil Liberties", 18 Queen's L.J. 129 (1993).
94. See M.L. Friedland, "National Security: Some Canadian Legal Perspectives", 10 Israel Y.B. Hum. Rts. 257, 280 (1980).
95. 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 implementing emergency powers to have been even more intrusive against individual liberties than that of Great Britain);
96. H. Marx, "The Emergency Power and Civil Liberties in Canada", 16 McGill L.J 39, 71-88 (1970) ("Emergency Power");
97. Peppin, supra note 66, at 133-77.
98. 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 ofAustralia and Canada", 18 Osgoode Hall L.J. 307, 316-20 (1980).
99. On the use of emergency powers during the "October crisis" see H. Marx, "The 'Apprehended Insurrection' of October 1970 and the Judicial Function", 7 UB.C L. Rev. 55 (1972);
100. Peppin, supranote 66, at 177-89;
101. P. Rosenthal, "The New Emergencies Act: Four Times the War Measures Act", 20 Manitoba L.J 563, 593-98 (1991).
102. Emergencies Act, 1988, S.C 1988, c. 29, s. 80. See Rosenthal, supra note 67.
103. See, e.g., E. Tenofsky, "The War Measures and Emergency Acts", 19 Am. Rev. Can. Stud 293 (1989).
104. Sec. 5 of the Emergencies Act. See Rosenthal, supra note 67, at 565-67.
105. 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". See Rosenthal, supra note 67, at 567-71.
106. 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". See Rosenthal, supra note 67, at 571-72.
107. 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". See Rosenthal, supra note 67, at 572-73.
108. See, e.g., P. Cruz Villalon, EstadosExcepcionalesy Suspension de Garantias(1984).
109. 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.
110. Art. 86(1) ofthe Spanish Constitution.
111. n Art. 116(1).
112. 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.
113. Art. 37(l)(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.
114. C.L. Rossiter, Constitutional Dictatorship - Crisis Government in the Modern Democracies 291 (1948);
115. C.J. Friedrich, Constitutional Government and Democracy 565-66 (4th ed., 1968).
116. Rossiter, supra note 80, at 292-93;
117. Friedrich, supra note 80, at 563-65;
118. 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; Art. 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".
119. See, e.g., Art. 139 of the Constitution of Guatemala; Art. 19 of the Constitution of Portugal.
120. Rosenthal, supra note 67, at 590-92.
121. 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);
122. J.G. Sidak, "War, Liberty, and Enemy Aliens", 67 N.Y. U. L. Rev. 1402, 1424-31 (1992);
123. see also H.H. Koh, "The Coase Theorem and the War Power: A Response", 41 Duke L.J 122 (1991);
124. J.G. Sidak, "The Inverse Coase Theorem and Declarations of War", 41 Duke L.J. 325 (1991).
125. 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).
126. Rossiter, supranote 80.
127. See, e.g., Art. 48(1) of the Greek Constitution; Arts. 78 and 87 of the Italian Constitution; Art. lI5a 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) ofthe Constitution of Hungary.
128. See also Ganev, supra note 36, at 591-93.
129. See, e.g., Arts. 137(d) and 141 of the Constitution of Portugal; Art. Ill of the Constitution of Bolivia; Arts. 2(11) and (V), 49(11) 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.
130. 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. Carrio, "Presidential Systems in Stress: Emergency Powers in Argentina and the United States", 15 Mich. J. Int'1L. 1, 7-9 (1993).
131. 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).
132. See, e.g., Art. 143 of the Constitution of Portugal; Art. Ill 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).
133. See, e.g., Art. 16(l) 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.
134. 9' 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).
135. 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 I (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 I 15a (requiring a two-thirds majority of the votes cast and at least a majority ofthe members of the Bundestag for a declaration of a state of 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".
136. Gross, supranote 5, at 452-54.
137. See, e.g., Art. 38(b) of Israel's BLG and Art. 352(5) ofthe Indian Constitution.
138. See, e.g., Art. 37 of the Constitution of South Africa.
139. Art. Ill 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".
140. Emergency Powers,supranote 24, at 9.
141. 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.
142. 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.
143. 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.
144. 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 Ill [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 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 ofNepal.
145. 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.
146. Rossiter, supra note 80, at 12 ("Crisis government is primarily and often exclusively the business of presidents and prime ministers");
147. A.S. Miller, "Crisis Government becomes the Norm", 39 Ohio St. L.J. 736, 738-41 (1978);
148. H.H. Koh, The National Security Constitution 117-49 (1990);
149. E. Corwin, Total Warandthe Constitution 172-79 (1947).
150. Rossiter, supranote 80, at 288-90.
151. 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.
152. supra notes 80-81 and the accompanying text.
153. 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);
154. I.H. Klinghoffer, "On Emergency Regulations in Israel", in Jubillee Book in Honour of Pinchas Rosen 86 (H. Cohen ed., 1962).
155. 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, supranote 108, at 823-24.
156. 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.
157. See Emergency Powers, supranote 24, at 13.
158. German Basic Law, Art. 53(a)(2).
159. 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).
160. The Constitution of the Russian Federation, Art. 88.
161. See, e.g., Corwin, supra note 104, at 35-77 (describing how total war shapes and transforms domestic governments).
162. Marx, "Emergency Power", supranote 67, at 57-61 (discussing the "dimensions doctrine" under which provincial matters can become of national dimensions in times of crisis and thus allow the federal government to step in and act in those areas which are normally left for the provinces);
163. Gilbert, supra note 67, at 319-20;
164. D.G. Creighton, Dominion of the North 439 (1944), quoted in Peppin, supra note 66, at 131 ("By virtue of the War MeasuresAct... 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 ofpeace and one for periods of war");
165. 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").
166. 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.
167. Contrast this approach with Art. 96(l) 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".
168. 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.
169. Art. I I5h 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).
170. Emergency Powers,supranote 24, at 5.
171. See generally, J. Casey, Constitutional Law in Ireland 149-156 (2ded. 1992);
172. B. Doolan, Constitutional Law and Constitutional Rights in Ireland 54-58 (3rd ed., 1994).
173. State (Walsh) v. Lennon [1941] I R. 112, 120 (per G. Duffy J.).
174. See also Re McGrath and Harte [1941] I.R. 68.
175. See Casey, supranote 123, at 150.
176. 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).
177. 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.
178. A. M. Schlesinger, Jr., The Imperial Presidency 459 (1989).
179. 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 ofa particular emergency both on an objective and subjective levels.
180. J.M. Bessette & J. Tulis, "The Constitution, Politics, and the Presidency", in The Presidencyin the Constitutional Order 3, 22 (J. M. Bessette & J. Tulis eds., 1981).
181. S. A. Barber, On What the Constitution Means 188 (1984).
182. M. Kremnitzer, "National Security and the Rule of Law: A Critique of the Landau Commission's Report", in NationalSecurity and Democracy in Israel 153 (A. Yaniv ed., 1993) (the doctrine of necessity is not amenable to pre-defined guidelines).
183. 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);
184. L. Lustgarten & I. Leigh, In From the Cold- National Security and Parliamentary Democracy 320-59 (1994);
185. Koh, supranote 104, at 117-49. Patterns of deference to executive decisions and actions are not only limited to national institutions but can also be detected with respect to international organs.
186. See Ni Aolain, supranote 22;
187. Gross, supranote 5, at 490-500.
188. 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.
189. 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.
190. See, e.g., T.M. Franck, Political Questions/Judicialanswers - Does The Rule of Law Apply to ForeignAffairs? (1992);
191. J. Hart Ely, War and Responsibility - Constitutional Lessons of Vietnam andits Aftermath 54-60 (1993).
192. 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);
193. 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);
194. D. Kretzmer, "Judicial Review Over Demolition and Sealing of Houses in the Occupied Territories", in Klinghoffer Book on Public Law 305 (. Zamir ed., 1993);
195. Franck, supranote 136, at 116-25.
196. Franck notes that "[wihile 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". Franck, supranote 136, at 117.
197. Thus, "fmjeasured 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. federal courts have by practicing abdication". Franck, supranote 136, at 124.
198. See also A.-M. Slaughter Burley, "Are Foreign Affairs Different?", 106 Harv. L. Rev. 1980, 1991-98 (1993).
199. 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).
200. 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).
201. 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).
202. See, e.g., C.N. May, In the Name of War - Judicial Review and the War Powers Since 1918 (1989);
203. W.H. Rehnquist, All the Laws but One 222 (1998).
204. Shamir, supra note 137.
205. B. Russett, Controlling the Sword- The DemocraticGovernance of National Security 34-38 (1990).
206. See also G. Barzilai, A Democracy in Wartime: Conflict and Consensus in Israel 247-60.
207. F. Schauer, "The Constitution of Fear", 12 Const. Commentary 203, 205 (1995).
208. P. Lahav, "A Barrel Without Hoops: The Impact of Counterterrorism on Israel's Legal Culture", 10 Cardozo L. Rev. 529, 531 (1988).
209. P.B. Heymann, Terrorism and America: A Commonsense Strategy for a Democratic Society, at ix (1998).
210. H.D. Lasswell, National Security and Individual Freedom 1 (1950).