A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale for suspending rights and freedoms, even if guaranteed under the constitution. Such declarations usually come during a time of natural or man made disaster, during periods of civil unrest, or following a declaration of war or situation of international or internal armed conflict. Justitium is its equivalent in Roman law.
In some countries, the state of emergency and its effects on human rights and freedoms and governmental procedure are regulated by the constitution and/or a law that limits the powers that may be invoked. Rights and freedoms may be suspended during an emergency, for instance, freedom of movement, but not non-derogable rights.[1] In many countries it is illegal to modify the emergency law or the constitution during the emergency.
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Though fairly uncommon in democracies, dictatorial regimes often declare a state of emergency that is prolonged indefinitely for the life of the regime. In some situations, martial law is also declared, allowing the military greater authority to act. In other situations, emergency is not declared and de facto measures taken or decree-law adopted by the government. Ms. Nicole Questiaux (France) and Mr. Leandro Despouy (Argentina), two consecutive United Nations Special Rapporteurs have recommended to the international community to adopt the following "principles" to be observed during a state or de facto situation of emergency : Principles of Legality, Proclamation, Notification, Time Limitation, Exceptional Threat, Proportionality, Non-Discrimination, Compatibility, Concordance and Complementarity of the Various Norms of International Law . (cf: "Question of Human Rights and State of Emergency", E/CN.4/Sub.2/1997/19, at Chapter II; see also (French) état d'exception )
Article 4 to the International Covenant on Civil and Political Rights (ICCPR), permits states to derogate from certain rights guaranteed by the ICCPR in "time of public emergency". Any measures derogating from obligations under the Covenant, however, must only be to the extent required by the exigencies of the situation, and must be announced by the State Party to the Secretary-General of the United Nations. The European and American Conventions on Human Rights have similar derogatory provisions. No derogation is permitted to the International Labour Conventions.
Some political theorists, such as Carl Schmitt, have argued that the power to decide the initiation of the state of emergency defines sovereignty itself. In State of Exception (2005), Giorgio Agamben criticized this idea, arguing that the mechanism of the state of emergency deprives certain people of their civil and political rights, producing his interpretation of homo sacer.[2]
The state of emergency can be abused by being invoked, for example, to allow a state to suppress internal opposition without having to respect human rights. An example was the August 1991 attempted coup in the Soviet Union (USSR) where the coup leaders invoked a state of emergency; the failure of the coup led to the dissolution of the Soviet Union.
Derogations by states having ratified or acceeded to binding international agreements such as the ICCPR, the American and European Conventions on Human Rights and the International Labour Conventions are monitored by independent expert committees, regional Courts and other State Parties [3].
The Constitution, which has been amended several times, has always allowed for a state of emergency (literally estado de sitio, state of siege), to be declared if the constitution or the authorities it creates are endangered by internal unrest or foreign attack. This provision was much abused during dictatorships, with long-lasting states of siege giving the government a free hand to suppress opposition (as of 2010[update] state of emergencies had been declared 52 times by democratic and dictatorial governments, starting in 1854 shortly after the constitution came into force[4]). The American Convention on Human Rights (Pacto de San José de Costa Rica), adopted in 1969 but only ratified by Argentina in 1984 immediately after the end of the National Reorganization Process, restricts abuse of the state of emergency by requiring any signatory nation declaring such a state to inform the other signatories of its circumstances and duration, and what rights are affected.
State-of-emergency legislation differs in each state of Australia.
In Victoria, the premier can declare a state of emergency if there is a threat to employment, safety or public order. The declaration expires after 30 days, and a resolution of either the upper or lower House of Parliament may revoke it earlier. Under the Public Safety Preservation Act, a declared state of emergency allows the premier to immediately make any desired regulations to secure public order and safety. However, these regulations expire if Parliament does not agree to continue them within 7 days. Also, under the Essential Services Act, the premier (or delegate) may operate or prohibit operation of, as desired, any essential service (e.g., transport, fuel, power, water, gas).
The federal government of Canada can use the Emergencies Act to invoke a state of emergency. A national state of emergency automatically expires after 90 days, unless extended by the Governor-in-Council.[5] There are different levels of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency, and War Emergency.[6]
The Emergencies Act replaced the War Measures Act in 1988. The War Measures Act was invoked three times in Canadian history, most controversially during the FLQ Crisis. During World War I (against threat of Communism from 1914 to 1920) and World War II (perceived threat by Japanese Canadians after Pearl Harbor from 1942 to 1945) the Act was enacted for the duration of both of the two world wars.
Under the current Emergency Act a state of emergency can also be declared by provincial, territorial, and municipal governments.[7] Since Canada's federal government and any of its provincial governments can suspend for five years at a time the Charter rights to fundamental freedoms in section 2, to legal rights in sections 7 through 14, and to equality rights in section 15 by a simple majority vote of the legislature which invokes the Charter of Rights and Freedoms' override clause, section 33, emergency powers can always be very easily created even without using the Emergency Act.
The police chief in a district can impose a zone in which people can be body searched without a specific suspicion. Such an order must be issued in writing, published, and imposed for a limited period. The police law (article 6) regulates this area.[8] The normal procedure calls for assisting the suspect to a private area and stripping them.[9]
If the police feel that a situation involving a crowd of people can get out of hand, they can call for mass arrest of all people in an area and detain them for six hours without charging them. This is called a precluding arrest.
Egyptians have been living under an Emergency Law (Law No. 162 of 1958)[10] since 1967, except for an 18-month break in 1980. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat. The law has been continuously extended every three years since 1981. Under the law, police powers are extended, constitutional rights suspended and censorship is legalized.[11] The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.[12]
Three main dispositions concern various kind of "state of emergency" in France: article 16 of the Constitution of 1958 allows, in time of crisis, "extraordinary powers" to the president. Article 36 of the same constitution regulates "state of siege" (état de siège). Finally, the April 3, 1955 Act allows the proclamation, by the Council of Ministers, of the "state of emergency" (état d'urgence).[13] The distinction between article 16 and the 1955 Act concerns mainly the distribution of powers: whereas in article 16, the executive power basically suspend the regular procedures of the Republic, the 1955 Act permits a twelve-day state of emergency, after which a new law extending the emergency must be voted by the Parliament. These dispositions have been used at various times, in 1955, 1958, 1961, 1988 and 2005 (see below).
The state of emergency in France is framed by the Constitution of 1958, which states that it can be decreed by the Président de la république in the Council of Ministers, but must be confirmed by Parliament in order to be held after 12 days. State of emergency gives authorities the power to:
It may also give the military authority the power to act in place of civilian authorities, if a decree specifies it explicitly. It is unclear, however, how some of the legal possibilities can be implemented due to various legal changes since the 1950s.
Article 16 of the Constitution gives the head of government "extraordinary powers" in exceptional cases, leading to an effective "state of exception":
When the institutions of the Republic, the independence of the nation, the integrity of its territory, or the fulfillment of its international commitments are under grave and immediate threat and when the proper functioning of the constitutional governmental authorities is interrupted, the President of the Republic shall take the measures demanded by these circumstances after official consultation with the Prime Minister, the Presidents of the Assemblies, and the Constitutional Council.He shall inform the nation of these measures by a message.
These measures must be prompted by a will to ensure within the shortest possible time that the constitutional governmental authorities have the means of fulfilling their duties. The Constitutional Council shall be consulted with regard to such measures.
Parliament shall meet ipso jure.
The National Assembly may not be dissolved during the exercise of emergency powers.
The conditions are both that the state is confronted to exceptional circumstances and that the regular institutions are disrupted and cannot effectively govern.[14] This amendment to the Constitution of the Fifth Republic has been qualified as "liberticide" by critics.[14] Invoked on 23 April 1961 during the Algerian War; normal functioning of institutions was quickly restored.[14]
In the judgment Rubin de Servens of March 2, 1962, the Conseil d'État judged that he could not himself invoke article 16, as that constituted an "act of government". Furthermore, the State Council considered that it could only pronounce on rulings which were not legislative acts carried out during this period. Thus, a legislative measure (although the role of Parliament is not specified, just that it is not to be dissolved) which breaches fundamental liberties cannot be appealed against before the Conseil d'État.[14]
Article 36 of the Constitution is concerned with the state of siege (in French), which can be decreed by the Council of Ministers for a period of twelve days which can only be extended with the approval of the Parliament. A state of siege may be declared in case of an "imminent peril resulting from a foreign war [guerre étrangère, or simply "war"] or an armed insurrection (une insurrection à main armée).[15] Military authorities may take police powers if they judge it necessary. Fundamental liberties may be restricted, such as the right of association, legalization of searches in private places day and night, the power to expel people who have been condemned for common law matters or people who do not have the right of residence in the territory, etc.
Since 1955 a state of emergency has been decreed five times:
In 1972 the Common Program of the Left (issued from an alliance between the Socialist Party and the Communist Party) proposed to repeal article 16. François Mitterrand's program in 1981 did not include this proposition. The Socialist government of Pierre Bérégovoy included a reform of this article in its project of Constitutional reform in 1992, but the project was not implemented. Also in 1992, the Vedel Commission created by François Mitterrand proposed to give to the Conseil Constitutionnel (Constitutional Council), on the concerted initiative of the President of the Republic and the presidents of the Assemblies, the mission to determine that the conditions required for the use of article 16 were in fact met.[14]
On July 23, 2008 a constitutional act was passed which, among other amendments, added a paragraph to article 16 of the Constitution[19] which stated that after 30 days the Constitutional Council can be requested to determine whether the conditions that justified the use of article 16 are still current; the ruling is public. At any time beyond 60 days the Council rules on this issue without the need for a referral.
The Weimar Republic constitution allowed states of emergency under Article 48 to deal with rebellions. Article 48 was often invoked during the 14-year life of the Republic, sometimes for no reason other than to allow the government to act when it was unable to obtain a parliamentary majority.
After the February 27, 1933 Reichstag 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 whole duration of the Third Reich: the Weimar Constitution was never actually repealed by Nazi Germany, but "indefinitely suspended". After the prohibition of the Communist Party of Germany on March 1, 1933, the NSDAP (Nazi Party) had hands free to vote in the March 23, 1933 Enabling Act, which enabled Chancellor 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.
In the postwar Federal Republic of Germany the Emergency Acts state that some of the basic constitutional rights of the Basic Law may be limited in case of a state of defence, a state of tension, or an internal state of emergency or disaster (catastrophe). These amendments to the constitution were passed on May 30, 1968 despite fierce opposition by the so-called extraparliamentary opposition (see German student movement for details).
The Standing Committee of the National People's Congress can declare a state of emergency and deploy troops from the People's Liberation Army Hong Kong Garrison under the Law of the People's Republic of China on the garrisoning of the Hong Kong Special Administrative Region.
The Chief Executive of Hong Kong along with the Executive Council can prohibit public gatherings, issue curfew orders, prohibit the movement of vessels or aircraft and appoint special constable all under Chapter 245 ("Public Order Ordinance") of Hong Kong Law.
Since 1997 no emergency measure have been enacted. Prior to 1997 emergency measures have been used for 4 major incidents:
According to the Hungarian Constitution, the National Assembly of Hungary can declare state of emergency in case of armed rebellion or natural or industrial disaster. It expires after 30 days, but can be extended. Most civil rights can be suspended, but basic human rights (such as the right to live, the ban of torture, and freedom of religion) cannot.
During state of emergency, the Parliament cannot be disbanded.
In India, an external state of emergency was declared two times during wars:
In 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. It all started after maverick socialist Raj Narain, who had been defeated in parliamentary election by Indira Gandhi, lodged cases of election fraud and use of state machinery for election purposes against Mrs. Indira Gandhi in the Allahabad High Court. On 12 June 1975, Justice Jagmohanlal Sinha of the Allahabad High Court found the Prime Minister guilty on the charge of misuse of government machinery for her election campaign. The court declared her election null and void and unseated her from her seat in the Lok Sabha. The court also banned her from contesting any election for an additional six years. Some serious charges such as bribing voters and election malpractices were dropped and she was held responsible for misusing the government machinery, and found guilty on charges such as using the state police to build a dais, availing the services of a government officer, Yashpal Kapoor (IAS), during the elections before he had resigned from his position, and use of electricity from the state electricity department. Protests led by J.P.Narayan, Raj Narain, Satyendra Narayan Sinha and Morarji Desai flooded the streets of Delhi close to the Parliament building and the Prime Minister's residence.The persistent efforts of Raj Narain, was praised worldwide as it took him over four years of continuous political and legal battle against system and Mrs Indira Gandhi to prove his charges. This instilled the faith in Indian Democracy and Judiciary. Political opposition was heavily suppressed during the emergency. Civil liberties were suspended and a mandatory birth control program was introduced by the government. The Government used police forces across the country to arrest thousands of protestors and strike leaders. J.P. Narayan, Raj Narain, Morarji Desai, Charan Singh, Jivatram Kripalani, Atal Bihari Vajpayee, L.K. Advani, Satyendra Narayan Sinha and other protest leaders were immediately arrested. Organizations such as the Rashtriya Swayamsevak Sangh, along with some opposition political parties were banned. Nearly two years later, confident about her chances of getting re-elected, Indira Gandhi relaxed the emergency and released dissidents. Mrs. Gandhi called new elections and freed her critics, Mr.Raj Narain and his colleagues rode a popular wave of unrest to defeat her and her Government. Raj Narain won decisively in the Prime Minister's home constituency of Rae Bareli. The victory of Mr Raj Narain over Prime Minister Smt. Indira Gandhi in 1977 parliamentary elections in Rai Bareilly (U.P-India) led to the fall of long era of Congress led central government in India, after independence and brought everlasting change in political equations thereafter in Indian politics, even today.
According to Article 28.3.3. of the Constitution of Ireland, "no article of the Constitution may be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law". The time of war or armed rebellion includes actions outside the state itself, and is not limited in time to the duration of the war or armed rebellion. A state of emergency was declared in 1939 at the outbreak of the Second World War, though Ireland was not a participant (The period was and is referred to as The Emergency in Ireland). This state of emergency was not technically lifted until 1972, and was succeeded by a second state of emergency to deal with the Troubles in Northern Ireland, which lasted until the IRA ceasefire in 1994.
The Standing Committee of the National People's Congress can declare a state of emergency and deploy troops from the People's Liberation Army Macau Garrison under the Article 14 of Macau's Basic Law on the defence of the Macau Special Administrative Region.
The Chief Executive of Macau can use the Macau national security law to prohibit public gatherings, issue curfew orders, prohibit other activities perceived to be a threat against the Region or China.
Since 1999 no emergency measure have been enacted. Prior to 1999 emergency measures have been used for 1 major incident:
In Malaysia, if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.[20]
In the history of Malaysia, a state of emergency was declared by the then-colonial government of Britain. The state of emergency lasted from 1948 until 1960 to deal with the communists led by Chin Peng.
States of emergency were also declared during the Indonesia-Malaysia confrontation in 1962, the 1966 Sarawak constitutional crisis and 1977 Kelantan Emergency.
When a race riot broke out on May 13, 1969, a state of emergency was declared.
Thiery Rommel, the European Commission's envoy to Malaysia, told Reuters by telephone on November 13, 2007 (the last day of his mission) that, "Today, this country still lives under (a state of) emergency."[21] Although not officially proclaimed as a state of emergency, the Emergency Ordinance and the Internal Security Act had allowed detention for years without trial.
The Civil Defence Emergency Management Act 2002 gives the government and local city council the power to issue a state of emergency, either over the entire country or within a specific region.[22] This may suspend ordinary work and essential services if need be. The state of emergency in New Zealand expires on the commencement of the seventh day after the date on which it was declared, unless it is extended. However, the minister of civil defence or local mayor may lift the state of emergency after an initial review of the region's status.
In Nigeria, a state of emergency is usually declared in times of great civil unrest.
On 31 December 2011, the Nigerian President declared a state of emergency in the North-Eastern (Yobe and Borno States) and North-Central (Plateau and Niger State) regions of the country. This declaration also included the immediate shutdown of the borders in that region. This declaration was in reaction to the terrorist attacks on Nigerians by an Islamic extremist sect called Boko Haram. Boko Haram wants to impose strict Sharia law across Nigeria.[24]
In Pakistan, a state of emergency was declared five times in its history:
The first three were regarded as the imposition of direct martial law. In 2007 a 'state of emergency' was declared.
In Spain, there are three degrees of state of emergency (estado de emergencia in Spanish): alarma (alarm or alert), excepción (exception[al circumstance]) and sitio (siege). They are named by the constitution, which limits which rights may be suspended, but regulated by the "Ley Orgánica 4/1981" (Organic Law).
On December 4, 2010, the first state of alert was declared following the air traffic controllers strike. It was the first time since the Francisco Franco's regime that a state of emergency was declared.[25]
The Prime Minister Kamla Persad-Bissessar on 21 August 2011 at 8:00 pm announced a State of Emergency in an attempt to crack down on the trafficking of illegal drugs and firearms, in addition to gangs.
The decision of the President, George Maxwell Richards, to issue the proclamation for the State of Emergency was debated in the country's Parliament as required by the Constitution on September 2, 2011 and passed by the required simple majority of the House of Representatives.
Debate on a 3-month first extension of the State of Emergency is in progress before the Parliament on September 3. On September 4 the Parliament has extended the State Of Emergency for a further 3 months.
The last time a State of emergency was declared was in 1970 Black Power Revolution & July 27 - August 1, 1990 in the attempted state coup by the Jamaat al Muslimeen against the NAR government of the then Prime Minister A. N. R. Robinson.[26]
Since the foundation of the Republic of Turkey in 1923 the military conducted three coup d'états and announced martial law. Martial law between 1978 and 1983 was replaced by a state of emergency that lasted until November 2002.
In the United Kingdom, the Monarch, the Privy Council, or the Prime Minister can make emergency regulations under the Civil Contingencies Act 2004 if there is a serious threat to human welfare, the environment, or in case of war or terrorism. These regulations last for seven days unless confirmed otherwise by Parliament. A state of emergency was last invoked in 1974 by Prime Minister Edward Heath in response to increasing industrial action.
In the United States, there are several methods for government response to emergency situations. A state governor or local mayor may declare a state of emergency within his or her jurisdiction. This is common at the state level in response to natural disasters.
The president of the United States, as head of the executive branch, has the authority to declare a federal state of emergency. The only emergency provisions in the U.S. Constitution are:[27] "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."[28] and an exemption from the privilege of a grand jury hearing for cases arising in the military when in service in a time of "public danger".
Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of Maryland and some midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads", those in the Union who supported the Confederate cause. Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps, and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan 71 US 2 1866 that the suspension was unconstitutional because civilian courts were still operating, and the Constitution only provided for suspension of habeas corpus if these courts are actually forced closed.
On December 16, 1950, during the Korean War, President Truman issued Presidential Proclamation No. 2914,[29] declaring a state of national emergency.[30] The Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer established, in 1952, that presidents may not act contrary to Acts of Congress during an emergency.
During the Watergate scandal which erupted in the 1970s after President Richard Nixon authorized a variety of illegal acts, Congress investigated the extent of the President's powers and belatedly realized that the U.S. had been in a continuous state of emergency since 1950. As a result, in 1976 the National Emergencies Act set a limit of two years on emergency declarations unless the president explicitly extends them, and requiring the president to specify in advance which legal provisions will be invoked. The Act terminated the emergency of 1950 on September 14, 1978;[31] however, even in the 21st century, the federal courts have upheld harsh penalties (including deportation) for crimes that occurred during the state of national emergency from 1950 to 1978, where the penalties were escalated because of the existence of that emergency.[29]
The 1977 International Emergency Economic Powers Act allows freezing of assets, limiting of trade, and confiscation of property during a declared emergency.
A federal emergency declaration allows the United States Federal Emergency Management Agency (FEMA) to exercise its power to deal with emergency situations; federal assistance also becomes available to areas that are declared to be in a state of emergency. For FEMA, emergency declarations are different from the more common disaster declarations done for hurricanes and floods. Typically, a state of emergency empowers the executive to name coordinating officials to deal with the emergency and to override normal administrative processes regarding the passage of administrative rules.
The United States is formally in an ongoing limited state of emergency declared by several Presidents for several reasons. A state of emergency began on January 24, 1995 with the signing of Executive Order 12947 by President Bill Clinton. In accordance with the National Emergencies Act, the executive order's actual effect was not a declaration of a general emergency, but a limited embargo on trade with "Terrorists Who Threaten To Disrupt the Middle East Peace Process".[32] This "national emergency" was expanded in 1998 to include additional targets such as Osama bin Laden,[33] and has been continued to at least 2008 by order of President George W. Bush.[34] There are a number of other ongoing national emergencies of this type,[35][36] regarding for instance diamond trade with Sierra Leone. Especially noteworthy are the ongoing states of emergency declared on November 14, 1979 regarding the Iran Hostage Crisis,[37] that declared on March 15, 1995 with respect to Iran,[38] and that declared on September 14, 2001 through Bush's Proclamation 7463, regarding the terrorist attacks of September 11, 2001.[39]
President Barack Obama extended George Bush's Declaration of Emergency regarding terrorism on September 10, 2009[40] and again on September 10, 2010.
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