Emergency Powers

The German Law Journal has an article discussing the state of emergency and how it should be recognised and tempered. Given that a state of emergency operates outside of the standard political technologies, it is likely that new methods will have to be developed to restrain that negative passion of the executive.

Via Gary Sauer-Thompson , the German Law Journal has an article on the state of emergency as a paradigm of government. The article discusses the war on terror legislation in Germany as the establishment of a silent state of emergency.

the constellation of legal issues involved in combating terrorism could be considered as the law on state of emergency "incognito."

The article describes a state of emergency as a situation which can threaten the very constitution itself and as a consequence a state of emergency is declared where the constitutional and legal norms are dissolved and unitary government in the hands of the executive is created legislatively to handle the emergency.

Like the story of Cincinnatus, the emergency is intended to be temporary, the constitution saved, and the unconstitutional powers dissolved. In Roman legend this is when Cincinattus returned to his farming.

One of the issues facing modern government systems is the under-handed creation of the state of emergency as a paradigm of governance. A good example of this is the council in the District of Columbia in the United States. Its police department is constantly declaring emergencies due to the crime rate, such that its operation is indistinguishable from a state of non-emergency.

The never-ending war on terror acts as a similar opportunity for nation-state levels of government.

The article argues that a state of emergency can be identified and should be constitutionally recognized. This allows the establishment of the state, and the legal recourse to dismantle it. The article argues that the downside to such a system is that it slows the process down. It is possible that the emergency so heavily threatening the constitutional structure and fabric is so rapid that emergency powers are needed immediately.

The establishment of a formal procedure to declare a state of emergency is argued for as it is partnered with the deconstruction of the emergency as well.

With the formal termination of the state of emergency, all emergency restrictions on fundamental rights are automatically cancelled

The article argues that certain fundamental rights need to maintain fully valid in the state of emergency. This is due to the author's fear of abuse of those rights under the unitary and absolute power of an emergency.

Canada has constitutional measures which enable the suspension of rights for a period before they must be reinstated. The problem with this is that fundamental rights are supposed to be inalienable. The constitutional system in Canada is setup to make rights one of government convenience, rather than having a fundamental quality.

The state of emergency has arisen, especially as a modern operating method of government, due to the technologies of constitutions, separation of powers and liberal democracy. Where once a tyrant could declare themselves the monopoly on power, or seek to have that absolute power vested through revolution, divine right or hereditary claims, the modern institutions have locked off much of that capability.

Consequently the executive has to find other, more insidious, means to subvert the system and collapse absolute power to themselves. Where separation of powers was used to temper the power of Kings, and constitutional rights were developed to cut off arbitrary government, it is likely that new constitutional technologies will have to created to lock off the state of emergency as an operational method.

Unitary and absolute power is always dangerous. It should not even be considered in a republican system. The state of emergency speaks to the avarice of the executive and the elevation of the state above the individual as such a republican system should remove the possibility of such action.
Permalink, Emergency Powers, Aug 2006, cam
dlatimer: Another complication of GG altering models: Thanks Cam for identifying another complication of republican models which seek to promote the Governor-General to the position of Head of State or alter our existing federal structures.

Under the Australian constitution there is no need for emergency powers to temporarily suspend the constitution. In an emergency there is nothing in the constitution which would prevent the executive from responding appropriately. Even under the most extreme unimaginably horrible situtations there are a series of dormant commissions under which government continues.

Under the Copernican proposals ( http://www.copernican.info ), these would not be altered. The office of Governor-General and the office of state governor are maintained and it is through these offices allow government to continue in emergencies and for parliament to be reformed when the emergency to continue.

However the codification of the Governor-General\'s power would necessarily involve the possibility of suspending the constitution to deal with extreme emergencies, as codified provisions may be impossible to comply with if communication is disrupted or worse.

It is certainly possible to add further layers to the constitution to deal with emergency powers, however it is hard to see how adding further  constitutional machinery will do anything but hinder executive response or create loopholes a government may exploit for politicial purposes.

Keep in mind that a emergency provision may not be ever needed. Let\'s imagine it is first used after 100 years. The practicalities of its actual use could be quite confusing.

Hence it is better to stick with the current system, which responds directly. That is what the Copernican proposal ( http://www.copernican.info ) deliberately retains from the current constitutional arrangements.
dlatimer: Amend: Another complication of GG alterning models: In above post, the end of third paragraph should read:
\"and for parliament to be reconvened when the emergency has diminished.\"
cam: Parliamentary systems are easier to create: states of emergency in due to their lack of separation of powers. The mix between executive and legislative in a parliamentary system makes it harder to spot as well. A state of emergency is essentially a temporary form of executive decree. Both Presidential and Parliamentary systems are susceptible to them. Australia and the US have both shown examples of this behaviour in recent times.

cam
dlatimer: The difference obvious lack of obvious difference: If your point is that all nations could be subject to emergencies, then you are stating the obvious. Why would a cyclone avoid a country because of its constitutional system?

There are no provisions in the Australian constitutional system for a state of emergency, and they are not needed. Nor would they be needed if we elected a President who\'s powers were limited to appointing governors.

However, if we codified the Governor-General\'s powers (because they become President) then that may need to include state of emergency provisions.

In all instances I\'m assuming that a parliamentary system continues, so the necessity for state of emergency provisions is not about parliamentary vs presidential systems.

I am not sure why it would be difficult to monitor the executive response to an emergency under any particular democratic system. That is a question of the political culture in which officials do their work.

I cannot see why formal emergency provisions in a constitution are any help at all.
avocadia: Dictator:

The Roman system had an office more or less outside of the normal cursus honorum the Dictator. They were appointed by the Senate - via one of the Consuls - for a period of six months. The legend of Cincinnatus - apropros of not much, he wasn\'t exactly a nice guy and didn\'t believe in rules that applied equally to plebians and patricians - is a nice story and all, but technically all he did was obey the law which stated a Dictator had to give up the office after six months or at the end of the emergency, which ever came soonest.

Anyway, my point was that a state of emergency by definition can\'t last very long. An emergency, after all, is an unexpected event that demands an immediate response. If the event is still occuring after six months, surely it can no longer be called \"unexpected\" but has become the new state of things. If after six months the regular system of things has surely had ample time to craft an appropriate response without the need to lend extraordinary and almost unhindered powers to one person.

Six months seems appropriate although consideration might be made to the superior ability of our regular government bodies to gather and confer.

Of course, the Roman Dictators aren\'t exactly the model we would want to adopt anyway. They, like George W. Bush thinks he is, were completely immune to prosecution for any activities performed while Dictator. Not just while in office, but after as well. Everyone just covered the eyes and ears.
avocadia: The obvious similarity:

I think the thrust of Cam\'s post was that there is incentive for the manufacture of a phony state of emergency or the continuation of an existing one beyond the duration of the actual emergency. If the extraordinary powers are lent to the same body that decalared the emergency, it does create the potential for conflict of interest. The party system would be what I identified as the aspect common to the US presidential system and the Australian Parliamentry system that creates the conflict of interest.

Anyway, as to how it would be difficult to monitor executive response, just look at the Bush administration with its constant secrecy and one the alleged watchdogs controlled by the same party as the President. In some ways, the US system seems almost to have been willfully modified to allow the executive to avoid observation by constantly murmuring \"national security\" while it goes about doing what it will.

Is my low opinion of factionalism showing?

Lastly, I am of mixed opinions of the need for emergency provisions in the modern government. I do not believe there is any emergency short of the irrevocable break down of law and order into some sort of Mad Max-ian dystopia of hotted up cars and fur-and-leather-clothes that require a legislative response in anything less than half a week, which you would think is the maximum conceivable time it would take a quorum to form. This isn\'t the old days when elected members have to travel in horse-drawn carts for days to get from Sydney to Canberra let alone from Cairns or Perth. Meanwhile, there are plenty of bodies, the State Emergency Services for one, that can and do respond very quickly to deal with the immediate effects of emergency. Ultimately, nothing the US Congress did after 9/11 had any effect on the state of emergency the US was under.
dlatimer: Example of an emergency: I am not familiar with this particular legend. It reminds me of George Washington\'s decision to not contest a third election, a precedent followed until Franklin Delano Roosevelt.

The sort of emergency the Romans worried about was an army occupying the capital. The Roman system of government was dependent on the actual city of Rome being under Roman control. Anyway Sulla was dictator for many years, and Julius Caesar became dictator for life.

This is again the example that infrequently used provisions are difficult for subsequent generations to understand the practicalities of their intended use.

And again I wonder what this has to do with the Australian constitutional system which allows the governors to exercise executive power, but does not afford them the rights of a dictator. Unless someone can explain why a governor would be either unable to respond to an emergency OR be unwilling work towards the restoration of democratic institutions (assuming they were affected) at the first opportunity, then I cannot see why we\'d not retain the present system on this.

I believe we have a superior system to the US in this regard, and yet the checks and balances of that system are taking note of this issue. It leads me to strongly support retaining the office of governor (and governor-general) within a Australian republican system and it surprises me that knowledgeable people would support codifying these powers.

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