Introduction
Constitutional democracies are structured to operate under normal circumstances, with a prevailing security of the institutions and stability. Still, history shows in a constant way that the most extreme challenges to the rule of law come up in the periods of aberration, like wars, revolts, super recessions, disease outbreaks, terror and other life and death situations for the country.[1] All over the world, constitutions allow for such emergencies by providing different kinds of allowances where the usual constitutional rules do not have to be followed for the time being. These measures are meant to enable governments to take rapid and powerful actions when the situation is such that the normal legal channels will not suffice.[2] But at the same time, the question of using emergency powers has always been a double-edged one. They are claimed to be necessary in preserving the constitutional order, but they are the very measures that would disrupt most of the democratic values, individual liberties, state’s rights, and legal system. In different parts of the world, emergency measures have been in place as an argument both for the survival of constitutionalism and for the extent of the regime’s authoritarianism. Thus, the overall constitutional issue has been set up as a never-ending one: it is how to let the crisis management go on without letting the democratic structures suffer so much that they become like a dead horse.
A worldwide comparison points out that, although nearly all constitutions admit to the existence of emergencies, their treatment, however, varies substantially in terms of design, the scope of application, the safeguards, and the rights protections that accompany it. These variations trace back to the historical backgrounds, prevailing political attitudes, and degrees of confidence in the executive. The study of the emergency jurisdictions within democratic, hybrid, and autocratic regimes offers a vital understanding of the constitutional crisis response.
Constitutional Foundations of Emergency Powers
Three main approaches to the constitutional foundation of emergency powers are observed worldwide in constitutions; these comprise the first one being an explicit constitutional codification, the second one being a partial or implicit constitutional authorisation that is supplemented by statutes, and the third one being executive-centric or extra-constitutional models. [3]India, Germany, France, South Africa, Brazil, and Japan, to name a few, have constitutions that clearly state emergency powers among the constitutional texts. Along with the specified grounds, procedure, duration, and legal consequences of emergencies, the constitutions also mention these explicitly. Generally, this type of constitutional law is based on the notion that emergencies are a part of human life and that they must be ruled or regulated by legal means rather than left to the discretion of politicians. The other systems of the United States, the United Kingdom, Canada, and Australia, however, stand out in that they do not have an extensive emergency powers section in their constitutions; instead, the governments rely more on statutory frameworks and executive powers. In such systems, where the constitution is mostly silent or has little reference, emergency measures are taken through legislation, executive powers, and parliamentary control. The focus is on the flexibility of the law instead of its rigidity.
In contrast, many dictatorial and hybrid regimes, which are present in parts of Asia, Africa, and the Middle East, grant themselves extensive emergency powers with only a few restrictions or declare a state of emergency that lasts indefinitely. The emergency powers that are assumed in such systems are often used as regular means of governance rather than being limited to exceptional cases.
Therefore, at the global level, the various approaches to the constitutional foundations of emergency powers can be summed up as ranging from tightly regulated constitutional regimes to complete executive dominance.
The constitutional design and the extent of emergency powers
The emergencies that the constitutions recognise are of great importance in setting the limits of how often the extraordinary powers can be used and in what context they could be misused. For instance, some constitutions, like those of India, Pakistan, Bangladesh and the countries of Latin America, have very wide-ranging emergency classifications with the constitutional provision for national security emergencies, constitutional breakdowns, and financial or economic crises.[4] The broadness of these classifications grants governments the power to react to a wide range of threats; however, it also raises the danger of political manipulation, especially in federal or politically divided systems.[5] On the other hand, there are constitutions that restrain and define the categories. For instance, Germany, Japan, and some Nordic countries limit constitutional emergencies to military attacks or imminent threats to the survival of the nation. They use the normal legal channels to deal with internal disturbances and natural calamities. In addition, some legal systems draw finer distinctions separating states of emergency from states of siege, martial law, and public health emergencies, with each event imposing different legal ramifications. While this is the case in general, the distinctions are frequently collapsed by authoritarian governments that declare vague or open-ended emergencies based on some notion of public order or national unity and thus become accustomed to exceptional powers.
Impact on Federalism and Distribution of Power
Emergency provisions seem to frequently recalibrate the balance between central and regional authorities, which means that constitutional systems show up as prioritising national unity over regional autonomy during crises. If we take federal systems like India, Nigeria, Pakistan, and Malaysia, emergency regimes most of the time allow the central government to interfere in state governance to a very large extent. For example, India’s President’s Rule, Nigeria’s federal emergency powers, and Pakistan’s frequent emergency announcements are clear indications of how subnational autonomy can be significantly undermined during the invocation of extraordinary powers. On the other hand, the federations such as the United States, Canada, Germany, and Switzerland demonstrate a high degree of structural resilience. The central government’s authority may expand during emergencies, but the states or provinces remain constitutional entities, and the federal system works within the limits of the institutions. In Germany and Switzerland, the involvement of subnational units through the second chambers guarantees co-decisions even in rarefied circumstances. In unitary countries like France and the United Kingdom, the emergencies reinforce the executive power, but at the same time, such power remains formally bounded by parliamentary control and judicial review. On the contrary, the authoritarian regimes often completely cut off the regional autonomy, thereby permanently centralising power.[6]
Safeguards, Oversight, and Historical Lessons
The safety of emergency powers relies solely on the constitutional institutions that monitor and restrict their use. The strongest constitutional systems worldwide have set up multi-layered protections to make sure that the extraordinary power is neither accepted nor misused. The essential parts of these protections consist of: the necessity of legislative approval for emergency declarations, the strict temporal limitations, the regular renewal requirements, the judicial examination of both the declaration and its outcomes, the participation of the federal or the regional governments in the decision-making process, and the requirements for transparency. Germany, South Africa, and Canada are examples of this model of institutionalised distrust of concentrated power, thus making sure that no single branch of government exercises unchecked emergency authority. However, the situation is not the same for all democracies, and most of them become victims of oversight erosion during crises that last long. In such cases, the legislative bodies may turn passive or show deference, the executives may take control of the decision-making through emergency regulations, and the courts may become very cautious, especially on the issues that are presented as national security or public safety. The same situation was seen all over the world during the global fight against terrorism and health emergencies, when extraordinary measures were extended repeatedly with less and less scrutiny.
The historical lesson is clear: emergency powers, once accepted as normal, are very hard to withdraw. From the case of Weimar Germany, where emergency decrees led to the establishment of an authoritarian regime, to the current situations where governments operate under the cover of continuous emergency declarations, the constitutional collapse often starts with the temporary exceptions turning into permanent practices.
Conclusion
The global comparative study of emergency powers has shown that, in the end, emergencies are everywhere acknowledged, but the constitutions’ responses differ extremely across the different legal systems. Some constitutions prefer flexibility and the efficiency of the executive over those that favour restraint, institutional checks, and the upholding of fundamental rights. The differences in these powers are mainly a result of the different historical experiences, political cultures, and levels of trust in the state power. The lesson one can draw from this comparison is very clear: it is not the emergencies that threaten constitutionalism, but rather the unrestrained power.
The world over, the survival of democratic rule is not a matter of crises being averted, but of constitutional arrangements that keep emergencies brief, accountable, and compliant with rights. Where no protective measures are in place, emergencies may lead to a situation where the government dominates rather than the people being protected.[7]
Author(s) Name: Srishna R (Christ Academy Institute of Law, Bangalore, Karnataka)
References:
[1] Clinton L Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton University Press 1948).
[2] Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press 2006)
[3] Grundgesetz für die Bundesrepublik Deutschland (Basic Law), arts 115a–115l
[4] A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.
[5] Bruce Ackerman, ‘The Emergency Constitution’ (2004) 113 Yale Law Journal 1029.
[6] ADM Jabalpur v Shivkant Shukla AIR 1976 SC 1207 (India)
[7] Giorgio Agamben, State of Exception (Kevin Attell tr, University of Chicago Press 2005)
