Emergency Laws and Civil Liberties

By George Nalappat

The provision of emergency laws in various constitutions around the world has always been up for a debate. The power that is vested in the governments and the executives to enforce and implement emergency powers can be traced back to the early Greek civilization. Even though such is the case, it is so astonishing that so little thinking and writing has been done on the politics of the emergency situations other than for the early scholarly efforts of Carl .J. Friederich, Clinton L Rossiter and Frederick .M. Watkins and the writings of German jurist Carl Schmit.[1] However, it has been found out through various researches that such widespread implementation of the emergency laws have been violating the human rights of people all around the globe and even pose a threat for implementing the Human rights covenants that are proposed by the UNO.

The encroachment of emergency law provisions on civil liberties and the gradual change of emergency powers to emergency regimes have been two of the grounds in which the very existence of emergency powers has been questioned by various philosophers around the world. The reliance of the executive on emergency powers to respond to perceived threats from other foreign sovereigns have always presented a challenge for the maintenance of a constitutional governance ever since the beginning of a Republic.[2] However it has also been concluded by various legal philosophers that since the provision of emergency power is present in almost every contemporary constitution, thought and time needs to be given on how to accommodate emergencies within our social life and thereby how to constitutionalize emergency powers.

The persistence of emergency powers and the breakdown of civil liberties have been the cause for the collapse of democracy in various countries and hence it is the need of the hour to spend some thought into the said topic.

Through an in depth study on prevalent emergency laws throughout the world- AFSPA for example, it can easily be found out that Emergency laws/ martial laws pose for constitutional democracies – problems of a magnitude and variety to defy easy solution, and evokes response which vary according to a nation’s pattern of political experience and institutions. It is also understood that the time has gone in which one could challenge the very existence of the provision for emergency laws in various constitutions and hence the focus now should be on how to accommodate the existing emergency powers into our civil society

To accommodate the provisions of emergency regimes in our society, the first realization that we need to have is that there is a fundamental difference between the rights enjoyed by a society, as a whole during a period of emergency and a period of normalcy. If this realization has been well thought out by the existing political system, instances will be less, where there is an outcry for the slightest violation of human rights. However, this does not mean that human beings will be entirely denied of their inherent civil and political rights, but it means that there has to be a certain degree of relaxation on the rights guaranteed to every human being. So the conflicts regarding emergency regimes and human rights will be entirely determined on where a restraint needs to be imposed on the powers that are enjoyed by an executive in a period of emergency. This simply means that a clear cut balance needs to be struck on the emergency powers enjoyed by an executive during the period of emergency and its encroachment on human rights. This balance has to be maintained or else it would lead to the collapse of the constitutional machinery existing in a state.

There are different mechanisms that allow a state to make this balance. One such mechanism is to develop a constitutional machinery within the state itself that ensure minimum protection for its citizens during the period of emergency. The second method is by devising procedural safeguards against the violation of human rights taking place within the state. This is where the role of the judicial system existing in a state comes into play. After intra-state mechanism has been successfully developed, the next task is to make sure that the international community comes together to act against the violators of human rights. To achieve this mechanism, there has to be an overall change in the existing international rules. Constitution of a separate International Body to monitor the effects of emergency regimes that exist in different nations. It should be ensured that countries that deviate from the set International standards are imposed with sanctions, one kind or the other to make sure that such instances never repeat and some of the basic human rights are given priority over the needs of the executive or the needs of a state as it is claimed.

Whatever be the mechanism that has been brought into force, it does come with its own limitations. Almost all measures require the consent of the executive, who takes care of all the affairs of the state. Bringing into force, such mechanisms without the prior permission of the executive will require a complete overhaul of the existing political landscape of a country, and when this is viewed in a broader picture of international regime, the chances for such occurrences are very remote. Overall, it can be concluded that the issue of emergency powers has no easy solutions. It will take years of detailed discussion and not a political revolution to bring in solutions, though it won’t be concrete, but solutions that ensure that the individual rights in an international sphere does not conflict with the needs of emergency regimes that are imposed on the state by an executive.

[1] Carl J. Friedrich, Constitutional Government and Democracy: Theory and Practice in Europe and America, rev. ed. (New York: Blaisdell, 1950), chapter 26; Clinton L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, N.J.: Princeton University Press, 1948); and Frederick M. Watkins, The Failure of Constitutional Emergency Powers under the German Re-public (Cambridge, Mass.: Harvard University Press, 1939).

[2] Executive use of emergency powers to respond to foreign crisis threatens to undermine both constitutional separation of powers and individual liberties. As it was warned by James Madison almost 200 years ago, “perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad.” A. SCHLESINGER, THE IMPERIAL PRESIDENCY ix (1973) (quoting Letter from Madison to Jefferson, May 13, 1798); see also THE FEDERALIST No. 8, at 45 (A. Hamilton) (J. Cooke ed. 1961) (“Safety from external dangers is the most powerful director of national conduct. Even the most ardent love of liberty will, after time, give way to its dictates.”).



Journalism and Privacy

By – Apoorva Mishra

A question journalists often confront is how much of a person’s private life should be revealed in an article. Just because a journalist is efficient enough to pull out the source’s information doesn’t mean all of that is an ethical practice. Ofcourse, the journalists want to share the information publically concerning the public’s “Right to know”. However, the journalists need to understand that they are serving the masses in the end and hence, there is a difference between the “Public’s right to know” and what the “Public wants to know”.

The people has a right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This right “to be secure” has consistently been interpreted to mean that people have a right to privacy in their homes and other non-public places, as well as a right to safety. This right applies to those whom you might want to record for a story as much as it applies to you.

‘Is it in the public interest?’ is a question one needs to ask before publishing personal information. The more private or intimate the information is, the greater the public interest justification needs to be.

The rights of the journalism has consistently been interpreted to mean that news organizations have the right to broadcast or print the information without the fear of censorship, even if it potrays a person in the negative limelight. Until and unless the information is true, the negative potryal shall stand justified and not necessarily lead to libel.

The courts have made it very clear that the public’s right to know is one of our most secure freedoms. This right generally applies to anything that could be considered interesting to the public, is in the public eye, or affects any portion of the populace. The public’s right to know allows the news to show the victim of a car crash, the President on vacation, or the unsanitary conditions inside a poorly run meat-packing plant. However, this does not mean a news broadcast has the right to libel or slander someone or otherwise misrepresent the pictures shown or the words read.

If a court decides that a person has a reasonable expectation of privacy in relation to a piece of information or a situation, it then looks at the issue of whether, nonetheless, the public interest in the story outweighs this. In broad terms, this is about whether the issue is of public importance or not.

If any news intrudes into the privacy of a person then Privacy injunctions are regarded by many as a more important way of protecting their privacy because once private information is published it is difficult to make it private again. As a result, people are usually more concerned with preventing publication of the story than with getting damages subsequently.

Privacy injunctions are orders of the court that prevent publication of the private information. These are often obtained on an urgent basis shortly before a planned story is due to be broadcast, when there is not sufficient time for the court to properly consider all of the arguments.

If a person applies for an interim injunction, the court will decide whether or not the person seeking the injunction is more likely than not to succeed at trial. Sometimes, in order to avoid undermining the purpose of an injunction, the court will also order that the media is not allowed to report who has obtained an injunction.

Therefore, Privacy law may be relevant, for example, when you are reporting stories about people’s personal or sexual lives, finances, information about their health, or filming them in their house without their permission. It can even sometimes include situations where the person is in a public place. It is basically the correct judgement of what should be displayed in the public forum and what should not be. Journalism need to be practiced with some sense of sensitivity, sensitivity to protect the privacy, be it that for a public figure or a common man. For example, if a woman accuses a man of rape do you publish his name if charges haven’t been filed, and do you investigate the sexual history of the woman making the allegations? Therefore, a journalist needs to understand the difference between what is a news and what is not a news.