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.”).