Emergency Provisions in National Constitutions a Comparison

Emergency Provisions in Different Constitutions of the World: A Comparative Study

EM ERGENCY ERGENCY PROVISIONS PROVISIONS I N DI FF ERENT CONS CONSTI TI TUTI ONS OF TH E WORLD WORLD : A COM COM PARATI PARATI VE STUDY

(Towards fulfillment of continuous assessment in the subject of Comparative Public Law)

Submitted To Prof. K. L. Bhatia Faculty of Law

Submitted By Ravi Kant Meena Roll no. : 516 Semester 1 LLM (Corporate Law)

National L aw Uni ve versity rsity JODHPUR

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ACKNOWLEDGMENT ACKNOWLEDGMENT

I present a „vote of thanks‟ to Prof. K. L. Bhatia (Faculty of Law, National Law University, Jodhpur) for providing me with his valuable guidance and directions essential. essential. I express my gratitude for the precious time spared to clear my doubts as and when they came up. Without his support and encouragement the project would have been been incomplete. incomplete.

Ravi Kant Meena Roll no. : 516

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ACKNOWLEDGMENT ACKNOWLEDGMENT

I present a „vote of thanks‟ to Prof. K. L. Bhatia (Faculty of Law, National Law University, Jodhpur) for providing me with his valuable guidance and directions essential. essential. I express my gratitude for the precious time spared to clear my doubts as and when they came up. Without his support and encouragement the project would have been been incomplete. incomplete.

Ravi Kant Meena Roll no. : 516

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TABLE OF CONTENTS

………………………………………………………………………………………………….................. ...................... ..................... .........4 INTRODUCTION …………………………………………………………………………………………………........ CHAPTER 1: STATE OF EMERGENCY: AN OVERVIEW ……………………………………………………………………………….6 1.1 What is a State of Emergency? .............................................................................................................

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1.2 Why is this issue important?................................................................................................................

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1.3 What essential principles must be respected during emergency rule?............................................... 7 1.4 Which human rights cannot be limited even in the event of a state of emergency?.......................... 8 1.5 What special powers can be proclaimed in a state of emergency?..................................................... 8 1.6 What mechanism and approaches can help guard against the abuse of emergency powers? ........... 9 1.7 Which branch of government can declare a state of emergency?..................................................... 11 CHAPTER 2: EMERGENCY: DEFINITION, COMPETENCY, LEGAL EFFECTS, CHECKS AND BALANCES ……...12 2.1 Defining Emergencies………………………………………………………………………………………………………………………12 2.2 Authority to declare an emergency…………………………………………………………………………………….............17 2.3 Legal results of declaring a state of emergency………………………………………………………………………………20 2.4 Checks and Balances ……………………………………………………………………………………………………………………….22 22 CHAPTER 3: EMERGENCY PROVISIONS IN INDIAN CONSTITUTION ……………………………………………………..24 CHAPTER 4: CURRENT STATE OF EMERGENCIES …………………………………………………………………………………..26 4.1 Ongoing Emergencies………………………………………………………………………………………………………………………26 4.2 Recently declared emergencies………………………………………………………………………………………………………27 CONCLUSION …………………………………………………………………………………………………………………………………………29 BIBLIOGRAPHY ………………………………………………………………………………………………………………………………………31

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INTRODUCTION

Different constitutions differ greatly in their treatment of the subject matter of emergency powers. Most modern constitutions contain explicit, frequently detailed, emergency provisions. However, some other Constitutions like the Constitution of United States, are devoid of 1

references to states of emergency and to emergency powers. Indirect reference to emergencies may only be found in two clauses – Article I, Section 8, Clause 15 which vests the power in Congress “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”, and Article I, Section 9, Clause 2, which provides that “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 ”. Although certain other clauses mention terms such as “war”, or “time of war”, none attaches special powers to any branch of government 2

in the event of such exigencies. However, the omission of emergency provisions is limited to the federal level. Unlike the Federal Constitution, many State Constitutions contain emergency 3

provisions.

Moreover, some national constitutions do provide for a special type of emergency regime in case of war but do not specify constitutional emergency arrangements for events that fall short 4

of war.

1

Other examples of the same are the Democratic Constitution of Japan, the Constitution of Belgium (however, the constitution does provided that “the constitution may not be wholly or partially suspended” Article 187 as well as states 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” Article 196) , the Constitution of Czech Republic, the Japanese Constitution (however, Article 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. See L.W.Beer, Peace in Theory and Pratice Under Article 9 of Japan’s Constitution, 81 Marq. L. Rev. 815, 826 (1998) 2

United States Constitution, Art. I, Sec. 8, Clause 11 (Congress‟s power to declare war); Art. III, Sec. 3, Clause I (the crime of Treason); Third Amendment (prohibition on the quartering of soldiers in private premises); Fifth Amendment (exemption from the requirement of Grand Jury). 3

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. xvii, Sec. 1; Constitution of Florida, Art. ii, Secs. 2 and 6, Art. vi, Sec. 5, Art. vii, Sec. 18; Constitution of Hawaii, Art. vii, Sec. 13; Constitution of Maine, Art. 4, part 3, Sec. 16 and Art. 9, Sec. 17, etc. 4

E.g., Art. 78 of the Italian Constitution which provides that: “Chambers are competent to declare war and assign the necessary powers to government ”; Ch. 13 of the Constitution of Sweden, etc.

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This project seeks to examine in brief the provisions revealed in many constitutional 5

arrangements around the world in their treatment of emergencies. The primary focus is on the constitutional provisions dealing with emergencies and emergency powers. The following research questions have been answered in this project: (a) How to define a „state of emergency‟ in the constitutional document? (b) Who has the power and authority to declare a state of emergency? (c) Who has the power to terminate such a declaration? (d) What political and judicial control (if any) exists under the constitutional framework over the use of emergency powers? (e) What are the legal ramifications of declaring a state of emergency with respect, for example, to the protection of individual rights and civil liberties and the possibility of suspending the constitution, in whole or in part? The primary object of the project is to examine the constitutional provisions and not the legislations made in respect of emergencies. However, such legislations have been discussed appropriately wherever they are applicable. This project has been divided into four chapters. The first chapter deals with the general overview of the state of emergency. It deals with several issues such as the need, legal consequences and effects of a state of emergency. Chapter 2 deals with the comparative part of the project. It compares the position with respect to the emergency provisions throughout the world. Chapter 3 explains the emergency provisions as given under the Indian Constitution. Finally, Chapter 4 enumerates some of the emergency situations declared in the past and also emergencies which have been continuing till today.

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The constitutions studied for the project are as follows: Albania, Algeria, Argentina, Australia, Austria, Belarus, Belgium, Bolivia, Brazil, Bulgaria, Canada, China, Columbia, Czech Republic, Denmark, Estonia, Guatemala, France, German, Greece, Indian, Ireland, Italy, Japan, Malaysia, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Poland, Po rtugal, Romania, Russia, Singapore, Slovakia, South Africa, Sweden, U nited Kingdom, United States, Venezuela.

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CHAPTER 1: STATE OF EMERGENCY: AN OVERVIEW

1.1 What is a state of emergency?

A „state of emergency‟ derives from a governmental declaration made in response to an extraordinary situation posing a fundamental threat to the country. The declaration may suspend certain normal functions of government, may alert citizens to alter their normal behaviour, or may authorize government agencies to implement emergency preparedness plans as well as to limit or suspend civil liberties and human rights.

The need to declare a state of emergency may arise from situations as diverse as an armed action against the state by internal or external elements, a natural disaster, civil unrest, an epidemic, a financial or economic crisis or a general strike.

States of emergency are not uncommon occurrences, particularly in dictatorial regimes where the state of emergency may last as long as the regime lasts. In some situations, martial law is also declared, allowing the military greater authority to act. Other terms for referring to emergency situations are state of exception, state o f alarm and state of siege.

1.2 Why is this issue important?

The implementation of emergency law invariably leads to restrictions on normal economic, civil or political activity and rights in order to address the extraordinary circumstances that have given rise to the emergency situation. Certain restrictions may be fully justified.

At the same time, there is a danger that a government will take advantage of a state of emergency to introduce unwarranted restrictions on human rights and civil liberties, to neutralise political opponents, to postpone elections, or for other self-serving purposes that would be more difficult to pursue under normal circumstances. Page | 6


In some countries, there has been a tendency to maintain states of emergency for years or even decades, long after the original reason for its proclamation has disappeared. The danger that a “constitutional dictatorship” can arise out of a state of emergency should not be understated.

1.3 What essential principles must be respected during emergency rule?

A country‟s constitution or legislation normally describes the circumstances that can give rise to a state of emergency, identifies the procedures to be followed, and specifies limits on the emergency powers that may be invoked or the rights that can be suspended. While each country will want to define its own practices, international norms have developed that can provide useful guidance. For example, important international treaties such as the European Convention of Human Rights and Fundamental Freedoms (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) stipulate that states are to observe the following principles.

(i)

: This refers to the exceptional nature of the declaration of a state of Temporality emergency

(ii)

: The crisis must present a real, current or at least an imminent Ex ception al thr eat danger to the community

(iii)

Declaration : The state of emergency must be announced publicly; this informs

citizens of the legal situation and reduces the possibility of a de facto state of emergency, that is, a situation whereby the state restricts human rights without officially proclaiming a state of emergency (iv)

Communication : Notification of the measures taken must be made to other states and

relevant treaty-monitoring bodies; for example, if a state is to derogate from its obligations under the ECHR or ICCPR then it must inform the Secretary General of respectively the Council of Europe or the UN of its derogation, the measures it has taken and the reasons therefore, as well as the termination of the derogation. (v)

: The measures taken to counter the crisis must be proportional to the Proportionality gravity of the emergency situation; this applies to the area of application, their material content and their duration.

(vi)

: Human rights and fundamental freedoms during a state of emergency must Legality respect the limits provided for by the relevant instruments of international and Page | 7


national law; furthermore, a state of emergency does not imply a temporary suspension of the rule of law, nor does it authorize those in power to act in disregard of the principle of legality, by which they are bound at all times. (vii)

: This concerns the fundamental rights from which there can be no Intangibility derogation, even during times of emergency.

1.4 Which human rights cannot be limited even in the event of a state of emergency?

Certain human rights are non-derogable under any circumstances. The ECHR and the ICCPR identify these rights as follows: (a) the right to life; (b) prohibition of torture; (c) freedom from slavery; (d) freedom from post facto legislation and other judicial guarantees; (e) the right to recognition before the law; and (f) freedom of thought, conscience and religion.

The UN Human Rights Committee has recognized that, in addition to the non-derogable rights listed above, there are several other humanitarian provisions that must remain inviolable. These are: (a) the humane treatment of all persons deprived of their liberty; (b) prohibitions against hostage-taking and unacknowledged incarceration; (c) protection of the rights of persons belonging to minorities; (d) the prohibition of propaganda advocating war or national, racial, or religious hatred; and (e) procedural guarantees and safeguards designed to ensure the integrity of the judicial system.

1.5 What special powers can be proclaimed in a state of emergency?

Special emergency powers are granted to the government by virtue of the constitution or statutory laws. Examples of emergency measures or powers ran ge widely, for example: (i)

the restriction of press freedom and the prohibition of public meetings Page | 8


(ii)

domestic deployment of the armed forces

(iii)

evacuation of people from their homes and places of work

(iv)

searches of homes and other private places withou t a warrant; arrests without charges

(v)

confiscation of private property (with or without compensation) and/or its destruction

(vi)

regulation of the operations of private enterprise; interference with financial transactions and export regulations

(vii)

special legislation to punish non-compliance with emergenc y regulations.

In some countries (e.g., the UK), special judicial bodies may be set up during the emergency situation, whereas in other countries (e.g., Germany), extraordinary judicial bodies are forbidden.

In a state of emergency, responsibility for government must remain with civilian authorities on the national and local level. Security forces assist the civilian authorities in a subsidiary role.

1.6 What mechanisms and approaches can help guard against the abuse of emergency powers?

I.

The role of parl iament

Most legal systems ensure that the executive does not have sole authority to declare a state of emergency and provide for parliamentary ratification of the decision of the executive – often, with a qualified vote. As a general rule, governments, checked by parliament, must provide a well-considered justification for both their decision to declare a state of emergenc y and the specific measures to address the situation.

Most parliaments also have the power to review the state of emergency at regular intervals and to suspend it as necessary. This parliamentary role is especially important in longlasting states of exception, where the principle of civilian supremacy over the security sector may be at risk.

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Whatever the emergency situation, the post hoc accountability powers of parliament, i.e. the right to conduct inquiries and investigations on the execution of emergency powers ought to be guaranteed by law. This is important for both assessing government behaviour and identifying lessons learned with a view to future emergencies.

II.

Th e role of th e judi cial system

The judicial system must continue to ensure the right to fair trial. It also must provide individuals with an effective means of recourse in the event that government officials violate their human rights.

In order to guard against infringement of non-derogable rights, the right to take proceedings before a court on questions relating to the lawfulness of emergency measures must be safeguarded through independence of the judiciary.

The courts can play a major role in decisions concerning the legality of a declaration of a state of emergency as well as in reviewing the legality of specific emergency measures.

III.

Th e role of civil society

An emergency situation exerts enormous pressure on state and society. To deal with it effectively, governments need the cooperation of their citizens. Any abuse or unwarranted limitation of human rights in such a situation will undermine that cooperation and make it more difficult to surmount the emergency situation. A state has a vital interest in dealing with a state of emergency in an accountable and responsible manner.

IV.

Th e rol e for neighbour in g states and the in tern ational commun it y

Emergency situations may also affect the relations of a state with its neighbours and have implications for the international community. All states should have an interest in ensuring that the declaration and implementation of states of emergency are subject to certain limitations and proceed in accordance with international norms.

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The international community needs to be actively engaged in ensuring that governments observe these norms. In particular, it must work with concerned governments to secure a swift return to normalcy and the restoration of the constitutional order in which rights can again be fully ensured.

1.7 Which branch of government can declare a state of emergency?

Most states have legal mechanisms governing the declaration of a state of emergency and the implementation of derogations. As concerns the prerogative to declare a state of emergency, the three most common approaches are the following: (i)

The executive declares the state of emergency and is obliged to inform parliament within a specified period of time (e.g. US)

(ii)

The executive declares the state of emergency but must have this ratified by parliament before it can proceed with emergency measures (e.g. Germany)

(iii)

Parliament itself declares the state of emergency (e.g. Hun gary)

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.

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CHAPTER 2 EMERGENCY: DEFINTION, COMPETENCY, LEGAL EFFECTS, CHECKS AND BALANCES

2.1 DEFINING EMERGENCIES

Defining a state of emergency is not an easy task.

No statute defines a national

emergency. The test for when a national emergency exists is completely subjective – anything 6

7

the President says is a national emergency. Emergency is an “elastic concept”. 8

In the case of Ningkan v. Government of Malaysia, it was observed that: “The natural meaning of the word ‘emergency’ itself is capable of covering a wide range of situations and occurrences, including such diverse events as wars, famines, earthquakes, floods, epidemics and the collapse of civil government .” Further in the case of Bhagat Singh & Ors. v. The King 9

Emperor , it was observed by the Privy Council that: “ A state of emergency is something that does not permit of any exact definition. It connotes a state of maters calling for drastic act ion…..” Many constitutions establish a dual structure of emergency regimes. Under the Constitutions of The Netherlands and Portugal, for example, there are two possible types of emergencies. The Dutch Constitution authorizes the declaration of a “state of war” and a “state 10

of emergency”.

The Constitution of Portugal distinguishes between a “state of emergency” and

6

The National Emergency Dilemma: Balancing the Executive‟s Crisis Powers with the Need for Accountability; 52 S. Cal. L. Rev. 1453 7

H P Lee, Emergency Powers (1984).

8

[1970] A.C. 379

9

AIR 1931 PC 111

10

A “state of war” may be declared in accordance with Article 96 of the Constitution; a “state of emergency” may be declared under the provisions of Article 103. While the Constitution includes no definition of the former type of emergency, it provides that the latter will be defined by an Act of Parliament. Article 103(1) provides as follows:

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Emergency Provisions in Different Constitutions of the World: A Comparative Study 11

a “state of siege”. Similar dual structures can also be found in the constitutions of many former 12

13

14

15

Communist countries such as Belarus, Estonia, Romania, Hungary, Slovakia and Russia.

Many of the constitutions of Latin and South American countries draw distinctions among a multiplicity of states of exception allocating different emergency powers to government according the particular type of exigency at hand. Not less than nine different states of exception can be identified in the constitutions of these countries. These include, among others, the state of 16

17

18

19

20

siege, state of emergency, state of alarm, state of prevention, state of defense, and state 21

of war. The mechanism used to distinguish among the various situations is based on general

The cases in which a state of emergency, as defined by Act of Parliament, may be declared by Royal Decree in order to maintain internal or external security shall be specified by Act of Parliament. The consequences of such a declaration shall be governed by Act of Parliament. 11

Articles 19 and 139 of the Portuguese Constitution. A state of siege or a state of emergency may be declared “in case of actual or imminent aggression by foreign forces, serious threat to or disturbance of the democratic constitutional order or public calamity.” According to Article 19(3), a “state of emergency is declared where the circumstances mentioned in the preceding paragraph are less se rious.” 12

See, V I Ganev, Emergency Powers and the New East European Constitutions, 45 Am. J. Comp. L. 585.

13

Under Article 100(1)(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 people‟s lives and health or jeopardizes the territorial intergrity and existence of the State”. A “state of martial law” may be imposed “in the event of military threat or attack”, Article 100(1)(25). 14

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 impeded the spread of infectious diseases [Article 87(8) or in case of a “threat to the Estonian Constitutional system” (Article 129). A state of war may be declared in the event of “aggression directed against the Republic of Estonia” (Ar ticle 128)]. 15

See, Articles 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 Constitution Law. Martial law may be imposed in the event of aggression against the Russian Federation. 16

See, e.g., Article 111 of the Constitution of Bolivia (“In case of grave danger 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.”) 17

See,e.g., Article 37(8) of the Constitution of the Dominican Republic; Article 51 of the Constitution of Panama.

18

See,e.g., Article 139 of the Constitution of Guatemala

19

Id.

20

See,e.g., Article 238(7) of the Constitution of Paraguay; Article 136 of the Constitution of Brazil.

21

See,e.g., Article 47 of the Constitution of Panama.

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descriptions of factual circumstances that may lead to invo king each particular state of exception. 22

Such factual circumstances include, inter alia, external war, breach of the peace and the public 23

24

25

26

order, economic exigencies, natural disasters and threats of disturbances. In addition, each constitution lists the legal results arising out of the declaration of each state of exception by way of suspension of individual rights and the vesting of extraordinary powers in the executive branch of government. Multilevel constitutional arrangements can also be found in the constitutions of Western 27

Countries such as Germany, Canada and Spain, as well as some former Communist countries.

After the constitutional amendment of May 1968, which ushered in the “emergency 28

constitution”,

the German Basic law now distinguishes between “Internal Emergency”, a “State 29

of Tension” and a “State of Defense”. An Internal Emergency occurs in situations when it is necessary “to avert an imminent danger to the existence or free democratic basic order of the

22

See,e.g., Article 40(1) of the Constitution of Chile.

23

For example, in Guatemala, the Constitution defines “invasion, serious disturbances of peace, activities against the security of the State or public calamity” as bases for introducing various emergency regimes (Article 138). 24

See,e.g., Article 185 of the Constitution of Nicaragua.

25

Article 55(7) of the Constitution of Dominican Republic allows for a declaration of state of siege in the event of “disaster areas in which damage has occurred, due to meteors, storms, earthquakes, floods, or any other phe nomenon of nature, as well as result of epidemics”. 26

Article 137 of the Constitution of Brazil authorizes the President of the Republic to decree a state of siege in, among other things, the event of “a serious disturbance with national effects…” 27

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 (Article 229). A state of emergency may be declared “In the case of threats of the constitutional order of the State, to security of the citizens or public order” [Article 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” (Article 232). In addition to specific limitations pertaining to each declaration, Article 228(1) provides that a declaration of any of the three states of exception noted above may only be permissible “in situations of particul ar danger, if ordinary constitutional measures are inadequate”. 28

J E Finn, Constitutions in Crisis – Political Violence and the Rule of Law (1991), pp. 196-200

29

Article 91 of the German Basic Law tackles the issue of Internal Emergency. Article 80a refers to the State of Tension and Ch. Xa (Article 115a – 115l) deals with the state of defense.

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Federation or of a Land”.

A State of Defense may be declared when “the federal territory is 31

under attack by armed force or imminently threatened by such an attack”. On the other hand, the circumstances that may give rise to a State of Tension are not defined in the Basic law.

32

It

should not noted that the Basic Law also deals with situations of “natural disaster or a particularly serious accident” under which police units from several Lander as well as Federal 33

Border Guard and the Armed Forces may be called in to assist in combating the threat.

In Canada, emergency doctrine finds its constitutional anchor in preamble to Section 91 of the Constitution Act of 1867,

34

which permits the making of laws “for the Peace, Order and

35

Good Government”. Based on this provision, the War Measures Act (WMA) was enacted in August 1914. WMA was applied during the two World Wars and in 1970 before its revocation in 1988 by the Emergencies Act, 1988. The Emergencies Act authorizes the federal government to declare four different types of emergencies. “Public welfare emergency” may be declared in circumstances if natural disasters;

36

“public order emergency” may be invoked when serious 37

threats to the security of Canada emerge;

“international emergency” deals with situations 38

involving acts of intimidation towards Canada or other countries;

finally, “war emergency”

may be proclaimed in case of real or imminent armed conflict involving Canada or any of its 39

allies. Under the Act the initial duration of each proclaimed emergency varies (from 30 days in

30

Articles 91(1) and 87a(4) of the Basic Law.

31

Article 115a(1) of the Basic Law.

32

See,Articles 12a(5)-(6) and 80a of the Basic Law.

33

Article 35(2)-(3) of the Basic Law.

34

Until 1982 this Act was known as the British North America Act.

35

P W Hogg, Constitutional Law of Canada (3rd Edition, 1992), pp. 435-466.

36

Section 5, Emergencies Act, 1988

37

Section 16 of the Emergencies Act, 1988 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”. 38


39


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the case of “public order” upto 120 days when “war emergency” is concerned) and so does the nature and scope of permissible emergency powers granted to the federal government. The Spanish Constitution identifies three distinct scenarios involving a “state of alarm”, “state of emergency” and “state of siege”. Article 116 of the Constitution deals with the authority to declare each of the three types of emergency regimes, outlines general procedures for such 40

declaration and prescribes the initial duration for which a declaration may apply. The Constitution does not define the three classes of emergencies but rather leaves it for an organic 41

law to regulate the as well as the corresponding powers and limitations thereon. Pursuant to this provision, Organic Law 4/1981 defined the different circumstances under which each type of emergency regime may be exercised. However, this pattern of separating several types of emergency regimes is not universally followed. The Constitution of South Africa, for example, recognizes only one type of emergency regime, following a declaration of a state of emergency. However, such a state of emergency may be invoked in a range of cases when “the life of the nation is threatened by war, invasion, 42

general insurrection, disorder, natural disaster or other public emergency”. Similarly, the Israeli BLG neither defines “state of emergency” nor purports to describe the circumstances that may legitimately give rise to such a declaration. All it does is recognize the possibility of declaring a state of emergency without setting out substantive guidelines as to when such a declaration may be appropriate. Many constitutions apply at least a two-level legal classification of emergency regimes, with some constitutions employing a multilevel system of classification. The main purpose behind such classification is to modify and, at the same time, limit the powers made available to government in connection with a particular type of emergency. Natural disaster demands for government powers distinct from those necessary to face a foreign invasion. Both situations are, in turn, distinguishable from economic crisis. Thus, for example, certain crises may necessitate the use of “executive” emergency powers, which do not confer upon the executive a law-making 40

Section (2) of Article 116 of the Spanish Constitution deals with the state of alarm, Section (3) with the state of emergency and Section (4) with the state of siege. 41

Article 116(1) of the Spanish Constitution.

42

Article 37(1)(a) of the Constitution of South Africa

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power, while other types of emergencies may justify the use of “legislative emergency powers”. Others may require a hierarchical order of possible proclamation of emergencies. While each proclamation can be made in the context of broad panoply of danger and threats, the powers made available to the executive, and the protection of individual rights and civil liberties, 43

increase and diminish in scope, respectively, as we step up the emergency ladder. 2.2 AUTHORITY TO DECLARE AN EMERGENCY

In his seminal work, Constitutional Dictatorship,

44

Clinton Rossiter argues that a

democratic regime can fight a successful total war by adopting a model of constitutional dictatorship. Under this model, dictatorial forms substitute democratic ones for the duration of the exigency. However, it is a constitutional dictatorship in as much its sole purpose is the complete restoration of status quo ante bellum. In that regard, constitutional dictatorship must be both temporary and self-destructive. Once it enables the government to overcome the emergency it must disappear without leaving a trace. Rossiter suggests that in order for this extraordinary vehicle to function properly, it must follow certain criteria that govern the initiation, operation, 45

and termination of the constitutional dictatorship.

In many instances the primary authority for declaring a state of emergency is vested in parliament. At times such power to declare an emergency is coupled with the provision that 46

parliament will so act upon the request or proposal of the government. However, it is also common to find provisions allowing the government or the president (where relevant) to declare a state of emergency when circumstances are such that parliament cannot convene or act in time against the exigency. Such circumstances may also pave the way for the exercise of provisional legislative emergency powers by the executive. Such executive declaration of emergency and

43

See,e.g., Article 139 of the Constitution of Guatemala; Article 19 of the Constitution of Portugal.

44

C L Rossiter, Constitutional Dictatorship – Crisis Government in t he Modern Democracies (1948).

45

Ibid., at 297-306

46

See,e.g., Article 48(1) of the Greek Constitution; Articles 78 and 87 of the Italian Constitution; Article 115a of the German Basic Law; Article 34(1) of the Constitution of South Africa.

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acts of legislative nature are then subject to a subsequent prompt ratification by parliament if they are to remain in force.

47

Other constitutional provisions vest the primary responsibility and authority to declare a state of emergency in the executive, but require prior authorization or subsequent ratification to 48

be given by the legislative organ of government. Where it is the president who has the constitutional power to declare an emergency it is often the case that a counter-signature by 49

certain ministers or an approval by the government is required for the declaration to be valid.

However, where the constitutional system involves a strong presidency, it may well be that no counter-signature or formal governmental approval is required. Rather, a duty of consultation with the government prior to declaring a state of emergency may be required of the President.

50

Finally, it may also be the case that certain types of emergency regimes may be declared by the 51

executive and yet others by the legislature.

Various constitutional arrangements can also be found concerning the required majority in parliament that must approve or ratify an executive declaration of emergency or to proclaim an emergency when the power to so declare is vested in the legislature. The range of existing

47

See,e.g., Article 49(c) of the Israeli BLG; Article 48(2) of the Greek Constitution; Article 18(3) of the Austrian Constitution; Article 23 of the Constitution of Denmark. 48

See,e.g., Articles 137(d) and 141 of the Constitution of Portugal; Article 111 of the Constitution of Bolivia; Articles 2(II) and V, 49(II) and (IV), 84(IX), (X), 136, and 137 of the Brazilian Constitution. 49

Article 143 of the Constitution of Portugal, Article 111 of the Constitution of Bolivia, Article 190(11) of the Constitution of Venezuela; Article 352 of the Constitution of India (presidential declaration permissible only after a written decision to that effect taken by the Union Cabinet). 50

Article 16(1) of the French Constitution. Also note that Article 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. 51

Article 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. Article 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. Article 116(4) , dealing with state of siege, grants the power to declare such a state of exception in the hands of the House, based on governmental proposal.

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arrangements on this point goes from demanding a simple majority to requiring a qualified 52

majority.

Different arrangements exist also with respect to the duration for which an initial declaration of a state of emergency may be in force as well as with respect to the possibility of further renewals of that declaration. The principle of temporal duration, so intrinsically linked to the fundamental understanding of the concept of emergency, requires that states of emergency be short-lived. This principle is reflected in suing one or both of the following techniques: (1) 53

setting temporal limitations on a declared state of emergency, and (2) setting strict procedures 54

concerning the extension of a declared state of emergency. In fact, under some constitutions there is a limit on the number of permissible extensions to the initial declaration of emergency or 55

a limit on the number of emergencies which may be declared in a given period.

In conclusion, different constitutional arrangements can be found with respect to the organ or organs that are authorized to declare an emergency. Under the majority of constitutional schemes, the authority to invoke an emergency regime is shared by the executive and legislative branches of government. However, the exact point of equilibrium varies with the specific type of emergency involved and with the general constitutional culture of any given jurisdiction. The constitutional mechanism of institutional power sharing is designed to prevent a situation in which the organ who is to exercise emergency powers under a declared emergency is also the one authorized to declare that emergency in the first place and activate its own powers. At the same time, it is aimed at ensuring that the branch of government most capable of acting rapidly and effectively to counter a crisis is not rendered unable to handle the necessary powers and to take the measures that are deemed necessary to overcome the particular exigency. 52

The Greek Constitution, for example, requires that measures taken under paras. 2 and 3 of Article 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 1 (parliamentary declaration of a state of siege) must be taken by a “three -fifths majority of the total number of deputies”. Article 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. 53

See,e.g., Article 38(b) of Israel‟s BLG and Article 352(5) of the Indian Constitution.

54

See,e.g., Article 37 of the Constitution of South Africa.

55

Article 111 of the Bolivian Constitution mandates that “the Executive may not prolong a state of siege beyond ninety days nor declare within the same year, except with the consent of Congress”.

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2.3 LEGAL RESULTS OF DECLARING A STATE OF EMERGENCY

To what extent may a constitution be suspended, in whole or in part, in times of emergency? May individual rights, otherwise projected by the constitution, be suspended or derogated from under such circumstances? To what extent may emergency measures change the institutional features of the constitutional order? And to what extent may the constitution be modified, amended, changed or even repealed in such conditions? These are some of the most important questions that ought to be answered in thinking about emergency regimes. Under some constitutions, a declaration of emergency may lead to the suspension of certain individual rights and freedoms. For the most part, the constitutions reviewed in the project follow one of two approaches on this matter: (1) enlisting those rights and freedoms that 56

may be suspended during a declared state of emergency, or (2) enumerating those rights and 57

freedoms that may not be restricted or in any way violated even in times of acute exigency. 58

Some constitutions take a mixed approach. Thus, for example, the Constitution of Albania uses the second approach with respect to a state of war or a state of emergency, while adopting the first approach with respect to a state of natural disaster. Another approach is taken by the Indian Constitution in Articles 358 and 359. Article 358 provides that, during a declared state of emergency, “nothing in article 19 shall restrict the power of the State as defined in part III (fundamental rights) to make any law or to take any executive action which the State would but not for the provisions contained in that Part be competent to make or to take.” Article 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 Articles 20 and 21) as may 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 equally suspended, the possibility of taking 56

Costa Rica, for example, allows for the limitation of, “the rights and guarantees conferred by Article 22 (freedom of movement), 23 (sanctity of 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. 57

This is the approach taken by the Nicargua Constitution (Article 186); Article 19(6) of the Portuguese Constitution; Article 37 of the South African Constitution; Article 56(3) of the Constitution of Russia; Article 200 of the Constitution of Peru, etc. 58

Article 175 of the Constitution of Albania

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any action as authorized by Article 358, coupled with suspension of remedies against constitutional violations (as provided by Article 359) gives the federal government enormous powers. Another constitutional outcome of a declaration of a state of emergency may be the conferring upon the executive branch of extraordinary powers. Emergencies tend to result in an expansion of executive powers. One important aspect of such expansion and concentration of powers concerns the ability of the executive to engage in the process of law-making. Such lawmaking powers may be granted to the government either in accordance with an explicit constitutional provision or by way of delegation of some legislative power from the legislature 59

either a priori or in the context of a particular exigency.

Other broad categories of legal effects of a declared state of emergency should be noted. First, in federal States one of the first “victims” of exigencies and crises is the principle of 60

federalism. This is explicit in various constitutional provisions found in the constitutions of, for 61

62

63

example, Germany, India, and Russia . 64

Some constitutions provide for a modification or suspension of the constitution itself . Modern constitution provisions often prescribe any change or modification of the Constitution itself during an emergency, or at least any change or modification of the nature of the regime and

59

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., Article 112 of the Constitution of Bolivia, Article 62 of the Brazilian Constitution, etc. 60

European Commission for Democracy through Law (1995).

61

Article 53(a)(2), German Basic Law.

62

Articles 353, 356 and 360 of the Constitution of India.

63

Article 88 of the Russian Constitution

64

See,e.g., Article 28, section 3, paragraph 2 of the Irish Constitution explicitly provides that “in the case of actual invasion…the government may taken whatever steps they may consider necessary for the protection of the State…” Paragraph 3 continues in the same line when it provides that, “nothing in this Constitution shall be invoked to invalidate any law enacted by the National Parliament 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 ar med rebellion in pursuance of any such law.”

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of its core constitutional norms. However, a constitution suspension clause is both unnecessary and undesirable. It is unnecessary because if government is to go outside the constitutional boundary it would do so regardless of whether the constitution itself allows such actions. If one strives to maintain as complete a separation between normalcy and emergency as possible, including a suspension clause in the constitution is also undesirable. It makes constitution that which is otherwise unconstitutional and ought to remain so. Emergency measures may, under certain circumstances, go beyond positive law and sometimes even against it, but when they do they must be openly acknowledged for what they are. Allowing the constitution to prescribe its own suspension confers a false sense of legality and legitimacy on these exceptional measures and facilitates the breaking down of the demarcation lines between normalcy and emergency. 2.4 CHECKS AND BALANCES

The problem with emergency powers results, among other things, from the need to balance adequately between the granting of sweeping powers to the government to allow it to fight the crisis successfully, and the need to prevent (or at least minimize) abuses of power by government and its agents. The task of checking the executive is entrusted to other branches of government. Somme legal systems may see the courts as the ultimate safeguard of rights, liberties and freedoms against governmental encroachment. Others may put their faith in the legislature. Be that as it may, the claim has often been made that neither courts nor legislature live up to that task in times of emergency, precisely when their vigilance is most needed.

66

Some constitutional provisions explicitly provide for judicial review not only of particular emergency measures employed by the government but also of the legal validity of the 67

initial declaration of emergency. Few others limit judicial review of the constitutional validity

65

See,e.g., Article 187 of the Belgian Constitution; Articles 170(5) and 177(2) of the Constitution of Albania; Article 60(1) of the Constitution of Brazil, etc. 66

G J Alexander, The Illusory Protection of Human Rights By National Courts During Periods of Emergency, 5 Hum. Rts. L.J. 1 (1984). 67

The Constitution of the Philippines explicitly allows for review of the emergency regime from its inception. Article VII (18) provides that “the 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.”

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of the declaration of a state of emergency or of legislative emergency measures. Most constitutions are, however, silent on this matter.

68

Article 150(8) of the Malaysian Constitution; Article 219 of the Constitution of Thailand; Article 26 of the Irish Constitution.

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CHAPTER 3 EMERGENCY PROVISIONS IN INDIAN CONSTITUTION

According to the Indian Constitution, the President has been given extraordinary powers to deal with certain abnormal situations in order to protect the security, integrity and stability of the country. For this purpose, there are three types of emergencies which can be proclaimed by the President of India on the written advice of the Union Cabinet:

These three types of emergencies are: (a) National emergency (Article 352) (b) Emergency due to the breakdown of Constitutional machinery in a State (Article 356) (c) Financial emergency (Article 360)

National emergency under Article 352 has been declared thrice so far. Twice it was imposed due to the external aggression by Pakistan, whereas it was declared only once on the th

basis of the fear of internal disturbance. This emergency was imposed on 25 June 1975. Emergency on account of failure of Constitutional machinery has been declared in almost all the States some time or the other. But Financial Emergency has not been declared so far.

Emergency, when imposed, affects the Fundamental Rights of the citizens. It also affects the autonomy of the State Governments. The powers of the Union Government increase and it can make laws even on the State List. The Centre gives directions to the State Governments. Practically speaking, the federal nature of the Constitution changes into a unitary form. So much so that when the proclamation of National Emergency is in operation, some of the Fundamental Rights guaranteed by the Constitution remain suspended.

The second type of emergency under Article 356 is the most frequently imposed emergency. Under this, a State is put under the President‟s Rule if the elected representatives fail

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to form or run the government in a State according to the Constitution of India. This is the most misused form of emergency which has been vehemently criticized by many.

The third type of emergency is Financial Emergency which has not been declared in our country so far. During this type of emergency, the President of India may give directions to the Union as well as State Governments to reduce the salaries and allowances of their employees including the judges. The purpose of declaring this type of emergency is to solve the financial crises.

The proclamation of each type of emergency is made by the President on the written advice of the Union Cabinet. Such a proclamation has to be approved by both the Houses of Parliament within one month in case of National Emergency and within two months in case of the remaining two types of emergencies, from the date of imposition of such emergency. The Proclamation of National Emergency as well as the imposition of President‟s Rule, if approved by the Parliament, will continue to be in operation for six months from the date of proclamation. In case it is to be extended beyond six months, a subsequent resolution has to be passed by the Parliament to this effect. In case of Financial Emergency once proclaimed, it continues to operate as long as it is required.

The Emergency Provisions provide the President with sweeping powers to deal with abnormal and extraordinary situations. Any misuse of these powers can easily lead to subversion of democracy. But the actual working of the Constitution for over 49 years has demonstrated that emergency powers were generally used in the interest of the country barring a few cases where emergency was imposed due to political considerations. In spite of misuse of emergency provisions in some of the States, there is a broad consensus that emergency provisions still have a role to play under the conditions prevailing in India.

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CHAPTER 4 CURRENT STATE OF EMERGENCIES

4.1 ONGOING EMERGENCIES

(i)

69

United States, specifically New Jersey, has been in a State of Disaster due to Hurricane Sandy.

(ii)

Israel has been in a State of Emergency since the 1948 Arab-Israeli War.

(iii)

Yemen declared a State of Emergency on March 18, 2011.

(iv)

Trinidad and Tobago declared a state of emergency on August 21, 2011 due to an upsurge in violent crimes.

(v)

th

Egypt declared a state of emergency on 14 August 2013 for a month, after the security forces had stormed two protest camp in Cairo.

(vi)

Myanmar declared a state of emergency in Meiktila due to ongoing sectarian violence.

(vii)

Philippines declared on September 26, 2009 “state of calamity” for Metro Manila and 25 other nearby provinces due to heavy flooding caused by Tropical Storm Ketsana.

(viii)

The United States is in an effectively permanent state of national emergency with regard to specific international problems, notably the threat of terrorism.

(ix)

Brunei has been in a state of emergency since December 12, 1962 in response to a pro-independence rebellion.

(x)

In the Palestinian Occupied Territories, Palestinian President Mahmoud Abbas declared a state of emergency in the Gaza Strip and West Bank following Hamas's takeover of power in Gaza Strip.

69

(xi)

Algeria has been in a state of emergency since the 1992 coup.

(xii)

Somalia has been in a state of emergency since 2009.

nd

< http://en.wikipedia.org/wiki/State_of_emergency#Ongoing> as visited on 22 September 2013.

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4.2 RECENTLY DECLARED EMERGENCIES

A. Public Health Emergency declared on account of Swine Flu: 1. U.S. Federal, State, and Territorial Declarations of Emergency or Public Health 70

Emergency:

a. State of Maryland - Maryland Governor Martin O'Malley signed an executive order declaring a state of emergency and catastrophic health emergency for the State to prepare for the spread of H1N1 swine flu in Maryland. Date: May 1, 2009 b. State of Florida - Florida's Surgeon General, Dr. Ana M. Viamonte Ros in consultation with Governor Charlie Crist has declared a public health emergency that has “the potential to result in substantial injury or harm to the public health.” Date: May 1, 2009

c. State of Wisconsin - Wisconsin Governor Jim Doyle declared a state of public health emergency. Date: April 30, 2009 d. State of California - California Governor Arnold Schwarzenegger declared a state of emergency. Date: April 28, 2009 e. State of Texas - Texas Governor Rick Perry issued a state-wide disaster declaration to coordinate emergency response efforts and seek federal reimbursement. Date: April 29, 2009 through May 29, 2009 71

2. Argentina - The city and province of Buenos Aires have announced a health emergency to fight a swine flu outbreak that has killed at least 26 people in Argentina. B. Thailand‟s Prime Minister Abhisit Vejjajiva declared a state of emergency in the areas of

Pattaya and Chonburi on April 11, 2009, in response to anti-government protestors breaking into the conference center of a hotel complex in the sea-side resort city of Pattaya, in the 72

then-venue site of the ASEAN was being held, immediately resulting in its cancellation.

70

th

< http://www.publichealthlaw.net/Projects/swinefluphl.php > as visited on 18 September 2013. 71 th < http://news.bbc.co.uk/2/hi/8128167.stm > as visited on 18 September 2013. 72 th < http://uk.reuters.com/article/idUKTRE53A06P20090411 > as visited on 18 September 2013.

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C. Another state of emergency on April 12, 2009, was announced in Bangkok and the

surrounding areas, due to an heightened escalation of tension between the government and 73

anti-government protesters, but was later lifted.

D. Bangladesh has been in a state of emergency since January 11, 2007 due to electoral

violence. This ended on December 16, 2008, when new parliamentary elections were organized. E. On July 1, 2008, Mongolian president Nambaryn Enkhbayar declared a state of

emergency in the capital Ulaanbaatar for four days after violent protests against the excommunist Mongolian People‟s Revolutionary Party (MPRP). The MPRP had claimed a majority of seats in the 2008 parliamentary elections, but was accused of fraud and vote rigging by the less-successful parties.

74

F. Pakistan was in a state of emergency from November 3, 2007 to December 15, 2007.

President Pervez Musharraf declared emergency “to stop Pakistan from committing suicide”. He lifted the state of emergency after he resigned from the army and took the oath of office as a civilian President of Pakistan. G. Greece was in a state of emergency from August 25, 2007 to August 28, 2007 due to the

highly destructive forest fires that occurred throughout the country. H. The U.S. states of Massachusetts and New Hampshire declared a state of emergency on

May 14, 2006 as a result of massive flooding from the strongest rains to hit the regions in almost 70 years. I. Buffalo, New York declared a state of emergency on October 13, 2006 when the “most

devastating snow storm in U.S. history” hit the city. Schools and businesses were closed for a week, and Buffalo and surrounding towns and cities were declared major disaster areas by President Bush.

73

th

< http://uk.reuters.com/article/idUKTRE53B0FU20090412 > as visited on 19 September 2013. th < http://english.aljazeera.net/news/asia/2008/07/200871164712383653.html > as visited on 18 September 2013.

74

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J. Indira Gandhi, in India, declared a state of emergency in 1975 in response to political

opposition and her own conviction on charges of electoral fraud. The Emergency lasted for 19 months.

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CONCLUSION

One of the critical tasks faced by the drafters of national constitutions is to strike an appropriate and tenable balance between “the dangers of erroneous governmental empowerment” 75

and “the dangers of erroneous governmental disempowerment.” This task becomes all the more critical when dealing with the question of emergency regimes. There exists a tension of “tragic dimensions” between democratic values and responses to emergencies. Democratic nations faced with serious terrorist threats must “maintain and protect life, the liberties necessary to a vibrant democracy, and the unity of the society, the loss of which can turn a healthy and diverse nation into a seriously divided and violent one.” At the same time, exigencies and acute crises directly challenge the most fundamental concepts of constitutional democracy. This article examines the various ways in which national constitutional documents have dealt with this fundamental conundrum. The essential elements in these constitutional documents are shaped in the answers give within particular constitutional regimes to questions such as: how to define a state of emergency in the constitutional document; who has the power and authority to declare a state of emergency and to terminate such a declaration; what political and judicial control (if any) exists under the constitutional framework over the use of emergency powers; and what are the legal ramifications of declaring a state of emergency with respect, for example, to the protection of individual rights and civil liberties.

75

F. Schauer, The Constitution of Fear, 12 Const. Commentary 203 (1995).

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BIBLIOGRAPHY

Books:

1. Michael Eburn, Emergency Law: Rights, Liabilities and Duties of Emergency Workers nd

and Volunteers (2 Edition, The Federation Press, 1999). 2. H P Lee, Emergency Powers (1984). 3. J E Finn, Constitutions in Crisis – Political Violence and the Rule of Law (1991). rd

4. P W Hogg, Constitutional Law of Canada (3 Edition, 1992). 5. C L Rossiter, Constitutional Dictatorship – Crisis Government in the Modern Democracies (1948). th

6. Durga Das Basu, Introduction to Indian Constitution (Kamal Law House, Calcutta, 5 edn., 1998). 7. M P Jain, Indian Constitutional Law (Wadhva & Co., 2003).

8. M V Pylee, Select Constitutions of the World (Universal Law Publishing Co. Pvt. Ltd., 2002). Cases:

1. Ningkan v. Government of Malaysia; [1970] A.C. 379 2. Bhagat Singh & Ors. v. The King Emperor ; AIR 1931 PC 111 Articles:

1. L.W.Beer, Peace in Theory and Pratice Under Article 9 of Japan‟s Constitution, 81 Marq. L. Rev. 815, 826 (1998). 2. The National Emergency Dilemma: Balancing the Executive‟s Crisis Powers with the Need for Accountability; 52 S. Cal. L. Rev. 1453. 3. V I Ganev, Emergency Powers and the New East European Constitutions, 45 Am. J. Comp. L. 585. 4. G J Alexander, The Illusory Protection of Human Rights By National Courts During Periods of Emergency, 5 Hum. Rts. L.J. 1 (1984). 5. F. Schauer, The Constitution of Fear, 12 Const. Commentary 203 (1995). Page | 31


6. The

Emergency

Constitution, th

www.yalelawjournal.org/pdf/1135/ckerman%20FINAL.pdf , visited on 24 September 2013. 7. Parliamentary Oversight of the Security Sector: Principles, Mechanisms and Practices, th

http://www.dcaf.ch/oversight/, visited on 24 September 2013. 8. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or th

Punishment, www.unhchr.ch/html/menu3/b/h_cat39.htm, visited on 24 September 2013 th

9. European Convention on Human Rights, www.hri.org/docs/ECHR50.html, visited on 25 September 2013.

Bare Texts:

1. Constitution of United States 2. Constitution of Japan 3. Constitution of Belgium 4. Constitution of Czech Republic 5. Constitution of the State of California 6. Constitution of Colorado 7. Constitution of Florida 8. Constitution of Hawaii 9. Constitution of Maine 10. Constitution of Italy 11. Constitution of Sweden 12. Constitution of Portugal 13. Constitution of Republic of Belarus 14. Constitution of Estonia 15. Constitution of Russia 16. Constitution of Bolivia 17. Constitution of Dominican Republic 18. Constitution of Panama 19. Constitution of Guatemala 20. Constitution of Paraguay Page | 32

Emergency Provisions in National Constitutions a Comparison

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