State of emergency

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Members of the Royal Malay Regiment during the Malayan Emergency in 1949, inspecting equipment captured in a raid.

A state of emergency is a situation in which a government is empowered to perform actions or impose policies that it would normally not be permitted to undertake. A government can declare such a state during a natural disaster, civil unrest, armed conflict, medical pandemic or epidemic or other biosecurity risk. Such declarations alert citizens to change their normal behavior and orders government agencies to implement emergency plans. Justitium is its equivalent in Roman law—a concept in which the Roman Senate could put forward a final decree (senatus consultum ultimum) that was not subject to dispute.

States of emergency can also be used as a rationale or pretext for suspending rights and freedoms guaranteed under a country's constitution or basic law, sometimes through martial law or revoking habeas corpus. The procedure for and legality of doing so vary by country.

Relationship with international law

Under international law, rights and freedoms may be suspended during a state of emergency; for example, a government can detain persons and hold them without trial. All rights that can be derogated from are listed in the International Covenant for Civil and Political Rights. Non-derogable rights cannot be suspended.[1] Non-derogable rights are listed in Article 4 of the ICCPR; they include right to life, the rights to freedom from arbitrary deprivation of liberty, slavery, torture, ill-treatment, retroactive law, rights to freedom of thought, conscience and religion and legal recognition.[2]

Some countries have made it illegal to modify emergency law or the constitution during the emergency; other countries have the freedom to change any legislation or rights based constitutional frameworks at any time that the legislative chooses to do so. Constitutions are contracts between the government and the private individuals of that country. The International Covenant for Civil and Political Rights (ICCPR) is an international law document signed and ratified by states. Therefore, the Covenant applies to only those persons acting in an official capacity, not private individuals. However, States Parties to the Covenant are expected to integrate it into national legislation. The state of emergency (within the ICCPR framework) must be publicly declared and the Secretary-General of the United Nations and all other States Parties to the Covenant must be notified immediately, to declare the reason for the emergency, the date on which the emergency is to start, the derogations that may take place, with the timeframe of the emergency and the date in which the emergency is expected to finish. Although this is common protocol stipulated by the ICCPR, its monitoring Committee of experts has no sanction power and its recommendations are therefore not always strictly followed; enforcement is therefore better regulated by the American and European Conventions and Courts on human rights.[3]

Use and viewpoints

Though fairly uncommon in democracies, dictatorial regimes often declare a state of emergency that is prolonged indefinitely for the life of the regime, or for extended periods of time so that derogations can be used to override human rights of their citizens usually protected by the International Covenant on Civil and political rights.[4] In some situations, martial law is also declared, allowing the military greater authority to act. In other situations, emergency is not declared and de facto measures taken or decree-law adopted by the government. Ms. Nicole Questiaux (France) and Mr. Leandro Despouy (Argentina), two consecutive United Nations Special Rapporteurs, have recommended to the international community to adopt the following "principles" to be observed during a state or de facto situation of emergency : Principles of Legality, Proclamation, Notification, Time Limitation, Exceptional Threat, Proportionality, Non-Discrimination, Compatibility, Concordance and Complementarity of the Various Norms of International Law (cf. "Question of Human Rights and State of Emergency", E/CN.4/Sub.2/1997/19, at Chapter II; see also état d'exception).

Article 4 to the International Covenant on Civil and Political Rights (ICCPR), permits states to derogate from certain rights guaranteed by the ICCPR in "time of public emergency". Any measures derogating from obligations under the Covenant, however, must be to only the extent required by the exigencies of the situation, and must be announced by the State Party to the Secretary-General of the United Nations. The European Convention on Human Rights[5] and American Convention on Human Rights[6] have similar derogatory provisions. No derogation is permitted to the International Labour Conventions.

Some political theorists, such as Carl Schmitt, have argued that the power to decide the initiation of the state of emergency defines sovereignty itself. In State of Exception (2005), Giorgio Agamben criticized this idea, arguing that the mechanism of the state of emergency deprives certain people of their civil and political rights, producing his interpretation of homo sacer.[7]

Graduation

In many democratic states there are a selection of legal definitions for specific states of emergency,[8] when the constitution of the State is partially in abeyance depending on the nature of the perceived threat to the general public. In order of severity these may include:

Abuse

The state of emergency can be abused by being invoked. An example would be to allow a state to suppress internal opposition without having to respect human rights. An example was the August 1991 attempted coup in the Soviet Union (USSR) where the coup leaders invoked a state of emergency; the failure of the coup led to the dissolution of the Soviet Union.

Derogations by states having ratified or acceded to binding international agreements such as the ICCPR, the American and European Conventions on Human Rights and the International Labour Conventions are monitored by independent expert committees, regional Courts and other State Parties.[9]

Law in selected countries

Argentina

The Constitution, which has been amended several times, has always allowed for a state of emergency (literally estado de sitio, "state of siege"), to be declared if the constitution or the authorities it creates are endangered by internal unrest or foreign attack. This provision was much abused during dictatorships, with long-lasting states of siege giving the government a free hand to suppress opposition (as of 2010 a state of emergency had been declared 52 times by democratic and dictatorial governments, starting in 1854 shortly after the constitution came into force[10]). The American Convention on Human Rights (Pacto de San José de Costa Rica), adopted in 1969 but ratified by Argentina only in 1984 immediately after the end of the National Reorganization Process, restricts abuse of the state of emergency by requiring any signatory nation declaring such a state to inform the other signatories of its circumstances and duration, and what rights are affected.

Australia

State-of-emergency legislation differs in each state of Australia. With regard to emergency management, regions (usually on a local government area basis) that have been affected by a natural disaster are the responsibility of the state, until that state declares a State of Emergency where access to the Federal Emergency Fund becomes available to help respond to and recover from natural disasters. A State of Emergency does not apply to the whole state, but rather districts or shires, where essential services may have been disrupted.[citation needed]

In Victoria, the premier can declare a state of emergency if there is a threat to employment, safety or public order.[11] The declaration expires after 30 days, and a resolution of either the upper or lower House of Parliament may revoke it earlier. Under the Public Safety Preservation Act 1958,[12] a declared state of emergency allows the premier to immediately make any desired regulations to secure public order and safety. However, these regulations expire if Parliament does not agree to continue them within seven days. Also, under the Essential Services Act 1958,[13] the premier (or delegate) may operate or prohibit operation of any essential service, such as transport, fuel, power, water or gas.[14]

A state of emergency was declared in New South Wales in December 2019 in response to the 2019 bushfires. At that time 7,800,000 acres (3,200,000 ha) of NSW bushland had been lost, resulting in over 600 homes lost and eight fatalities.[citation needed]

On 18 March 2020,[15] a nationwide human biosecurity emergency was declared in Australia owing to the risks to human health posed by the coronavirus (COVID-19) pandemic, after the National Security Committee met the previous day. The Biosecurity Act 2015[16] specifies that the Governor-General of Australia may declare such an emergency if the Health Minister (currently Greg Hunt) is satisfied that "a listed human disease is posing a severe and immediate threat, or is causing harm, to human health on a nationally significant scale". This gives the Minister sweeping powers, including imposing restrictions or preventing the movement of people and goods between specified places, and evacuations.[17] The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 was declared by the Governor-General, David Hurley, under Section 475 of the Act.[15]

Brazil

Extreme act that, in Brazil (Estado de Sítio or Estado de Exceção, in Portuguese), can be declared on the following circumstances:

  • Serious disturbance with national impact;
  • Inefficiency on the Defense State previously decreed;
  • Declaration of war;
  • Response to foreign armed aggression.

The state of emergency could last for 30 days, being possible to extend it for more days in case of persistence of the reasons of exceptionality.

Only the President is able to declare or prorogate this State; after receiving formal authorization from National Congress and after consultation with the National Security Council and the Council of the Republic.

Canada

The federal government of Canada can use the Emergencies Act to invoke a state of emergency. A national state of emergency automatically expires after 90 days, unless extended by the Governor-in-Council.[18] There are different levels of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency, and War Emergency.[19]

The Emergencies Act replaced the War Measures Act in 1988. The War Measures Act was invoked three times in Canadian history, most controversially during the 1970 October Crisis, and also during World War I (from 1914 to 1920, against threat of Communism) and World War II (from 1942 to 1945, against perceived threat from Japanese Canadians following Imperial Japan's attack on Pearl Harbor).

Under the current Emergency Act a state of emergency can also be declared by provincial, territorial, and municipal governments.[20] In addition Canada's federal government and any of its provincial governments can suspend, for five years at a time, Charter rights to fundamental freedoms in section 2, to legal rights in sections 7 through 14, and to equality rights in section 15 by legislation which invokes the notwithstanding clause, section 33, and therefore emergency powers can effectively be created even without using the Emergency Act.

Provincial governments can also invokes states of emergency, and have done to respond to at least 12 incidents during the 21st century.

Denmark

The police chief in a district can impose a zone in which people can be body searched without a specific suspicion. Such an order must be issued in writing, published, and imposed for a limited period. The police law (article 6) regulates this area.[21] The normal procedure calls for assisting the suspect to a private area and stripping them.[22] The police can also impose a zone in which specific crimes such as violence, threats, blackmailing and vandalism can be punished with a double penalty length. The zone can only be imposed if there is an extraordinary crime development and the zone can only last up to three months unless the extraordinary crime development still applies.[23][24]

If the police feel that a situation involving a crowd of people can get out of hand, they can order the assembly to be dissolved and "pass the street" in the name of the king. People that after three such warnings are still part of the crowd can then without further warning be subjugated to mass arrest. All people arrested can then be detained for 24 hours without charging them or taking them for a judge. This is called a precluding arrest.

Egypt

Egyptians lived under an Emergency Law (Law No. 162 of 1958)[25] from 1967 to 2012, except for an 18-month break in 1980 and 1981. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat. The law continuously extended every three years since 1981. Under the law, police powers were extended, constitutional rights suspended and censorship was legalized.[26] The law sharply circumscribed any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations were formally banned. Some 17,000 people were detained under the law, and estimates of political prisoners run as high as 30,000.[27] The emergency rule expired on 31 May 2012, and was put back in place in January 2013.[28][29] Egypt declared a month-long national emergency on 14 August 2013.[30]

The Egyptian president announced a one-month state of emergency across the country on 14 August 2013 and ordered the armed forces to help the Interior Ministry enforce security. The announcement made on state TV followed deadly countrywide clashes between supporters of deposed President Mohammed Morsi and the security forces.[31]

France

State of emergency in Paris, November 2015

Three main provisions concern various kind of "state of emergency" in France: Article 16 of the Constitution of 1958 allows, in time of crisis, "extraordinary powers" to the president. Article 36 of the same constitution regulates "state of siege" (état de siège). Finally, the Act of 3 April 1955 allows the proclamation, by the Council of Ministers, of the "state of emergency" (état d'urgence).[32] The distinction between article 16 and the 1955 Act concerns mainly the distribution of powers: whereas in article 16, the executive power basically suspend the regular procedures of the Republic, the 1955 Act permits a twelve-day state of emergency, after which a new law extending the emergency must be voted by the Parliament. These dispositions have been used at various times, in 1955, 1958, 1961, 1988, 2005, and 2015.

Germany

The Weimar Republic constitution (1919–1933)[33] allowed states of emergency under Article 48 to deal with rebellions. Article 48 was often invoked during the 14-year life of the Republic, sometimes for no reason other than to allow the government to act when it was unable to obtain a parliamentary majority.

After the 27 February 1933, Reichstag fire, an attack blamed on the communists, Adolf Hitler declared a state of emergency using Article 48, and then had President von Hindenburg sign the Reichstag Fire Decree, which suspended some of the basic civil liberties provided by the Weimar Constitution (such as habeas corpus, freedom of expression, freedom of the speech, the freedom to assemble or the privacy of communications) for the whole duration of the Third Reich.[34] On 23 March, the Reichstag enacted the Enabling Act of 1933 with the required two-thirds majority, which enabled Chancellor Adolf Hitler and his cabinet to enact laws without the participation of the legislative. (The Weimar Constitution was never actually repealed by Nazi Germany, but it effectively became ineffective after the passage of the Enabling Act.[35]) These two laws implemented the Gleichschaltung, the Nazis' institution of totalitarianism.

In the postwar Federal Republic of Germany the Emergency Acts state that some of the basic constitutional rights of the Basic Law may be limited in case of a state of defence, a state of tension, or an internal state of emergency or disaster (catastrophe). These amendments to the constitution were passed on 30 May 1968, despite fierce opposition by the so-called extra-parliamentary opposition (see German student movement for details).

Hong Kong SAR (China)

During the state of war, or turmoil which threatens national security or unity, and the Standing Committee of the National People's Congress believes is beyond the control of the local government, it can invoke Article 18 of the Hong Kong Basic Law and declare a "State of Emergency" in Hong Kong, thus the Central People's Government can selectively implement national laws not normally allowed in Hong Kong.[36] Deployment of troops from the People's Liberation Army Hong Kong Garrison under the "Law of the People's Republic of China on Garrisoning the Hong Kong Special Administrative Region" can happen.[37]

The Chief Executive of Hong Kong along with the Executive Council can prohibit public gatherings, issue curfew orders, prohibit the movement of vessels or aircraft, delegate authority, and other listed powers, under "Cap. 245 Public Order Ordinance".[38]

Although the People's Liberation Army Hong Kong Garrison may not interfere in internal Hong Kong affairs, however, the Hong Kong Special Administrative Region Government may invoke Article 14 of the Hong Kong Basic Law and request the Central People's Government permission to have the garrison assist in "maintenance of public order or disaster relief".[36]

Since 1997, a State of Emergency has never been declared. However, emergency measures have been used in varying degrees over the years during British rule and after the establishment of the Special Administrative Region. A few notable mentions are as follow:

On 4 October 2019, Carrie Lam, the Chief Executive of Hong Kong S.A.R., invoked Section 2(1) within "Cap. 241 Emergency Regulations Ordinance"[39] implemented since 1922 and last amended by the Legislative Council in 1999, which allow the government to implement the new, "Cap. 241K Prohibition on Face Covering Regulation".[40] The new regulation forbid public assembly participants from wearing masks or obscure faces during such events without reasonable excuses. The permitted excuses are: pre-existing medical or health reasons, religious reasons, and if the person uses the face covering for physical safety while performing an activity connected with their profession or employment. Any person defying the new regulation face possible criminal prosecution. The government's motive in doing so is to end months of social unrest and riots, however, did not declare a "State of Emergency". The new regulation took effect at 00:00 HKT on 5 October 2019.[41] Offenders risked a maximum of one-year imprisonment or a fine of HK$25,000 (US$3,200).[42]

The High Court of Hong Kong denied an application for a judicial injunction of the anti-mask law, on the same night shortly before the new regulation took effect. A subsequent attempt by pro-democrats to halt the new regulation also failed, however, the court recommended a judicial review at a later date.[43]

On 18 November 2019, the High Court ruled the "Cap. 241 Emergency Regulations Ordinance" is "incompatible with the Basic Law", however, the court "leaves open the question of the constitutionality of the ERO insofar as it relates to any occasion of emergency." The court also held the ordinance meets the "prescribed by law" requirement. However, the court deemed s3(1)(b), (c), (d) and s5 of the regulation do not meet the proportionality test as they impose restrictions on fundamental rights that goes beyond what is necessary in furthering its intended goals.[44]

On 22 November 2019, the High Court made the following remark:

"Nevertheless, we recognise that our Judgment is only a judgment at first instance, and will soon be subject to an appeal to the Court of Appeal. In view of the great public importance of the issues raised in this case, and the highly exceptional circumstances that Hong Kong is currently facing, we consider it right that we should grant a short interim suspension order so that the respondents may have an opportunity to apply to the Court of Appeal, if so advised, for such interim relief as may be appropriate. Accordingly, we shall grant an interim temporary suspension order to postpone the coming into operation of the declarations of invalidity for a period of 7 days up to the end of 29 November 2019, with liberty to apply."[45][46]

On 26 November 2019, the High Court announced hearing for the government appeal against the judgement is on 9 January 2020.[47]

On 27 November 2019, the Court of Appeal extended the interim suspension of the judgment until 10 December 2019.[48][49]

On 10 December 2019, the Court of Appeal refused to suspend the "unconstitutional" ruling by the Court of First Instance on the anti-mask regulation. As scheduled, a full hearing will commence on 9 January 2020.[50][51][52]

Hungary

According to the Hungarian Constitution, the National Assembly of Hungary can declare state of emergency in case of armed rebellion or natural or industrial disaster. It expires after 30 days, but can be extended. Most civil rights can be suspended, but basic human rights (such as the right to life, the ban of torture, and freedom of religion) cannot.

During state of emergency, the Parliament cannot be disbanded.

Iceland

The Icelandic constitution provides no mechanism for the declaration of war, martial law nor state of emergency.

India

The State of Emergency can be proclaimed by the President of India, when he/she perceives grave threats to the nation, albeit through the advice of the cabinet of ministers. Part XVIII of the Constitution of India gives the President the power to overrule many provisions, including the ones guaranteeing fundamental rights to the citizens of India

In India, a state of emergency was declared twice:

  1. Between 26 October 1962 to 10 January 1968 during the India-China war — "the security of India" having been declared "threatened by external aggression".
  2. Between 3 December 1971 to 21 March 1977 originally proclaimed during the Indo Pakistan war, and later extended on 25 June 1975, along with the third proclamation — "the security of India" having been declared "threatened by external aggression" and by "internal disturbances"

The first internal Emergency was declared by the president, Fakhruddin Ali Ahmed on advice of the then Prime Minister, Indira Gandhi The provisions of the Constitution allows the Prime Minister to rule by decree.

Ireland

In Ireland declaring a state of "national emergency" involves Article 28.3.3° of the 1937 Constitution of Ireland, which states that:[53]

Nothing in this Constitution [...] shall be invoked to invalidate any law enacted by the Oireachtas [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 armed rebellion in pursuance of any such law.

In addition, during a "war or armed rebellion", military tribunals may try civilians,[54] and the Defence Forces are not bound by habeas corpus.[55]

The First Amendment of the Constitution of 1939 allows an emergency to be declared during wars in which the state is a non-belligerent, subject to resolutions by the houses of the Oireachtas.[56] By the 2nd Amendment of 1941, an emergency ends, not automatically when the war does, but only by Oireachtas resolutions.[57] The 21st Amendment of 2002 prevents the reintroduction of capital punishment during an emergency.[58]

The first amendment was rushed through the Oireachtas after the outbreak of the Second World War, in which the state remained neutral. Immediately after, the required resolution was passed, in turn enabling the passage of the Emergency Powers Act 1939 (EPA), which granted the government and its ministers sweeping powers to issue statutory orders termed "Emergency Powers Orders" (EPOs).[59][60] (The period in Ireland was and is referred to as "The Emergency".) The EPA expired in 1946, although some EPOs were continued under the Supplies and Services (Temporary Provisions) Act 1946 until as late as 1957.[61][62] Rationing continued until 1951.

The 1939 state of emergency was not formally ended until a 1976 resolution, which also declared a new state of emergency in relation to the Troubles in Northern Ireland and in particular the recent assassination of the British ambassador to Ireland, Christopher Ewart Biggs.[63] The Emergency Powers Act 1976 was then passed to increase the Garda Síochána powers to arrest, detain, and question those suspected of offences against the state.[64] President Cearbhall Ó Dálaigh referred the bill under Article 26 of the Constitution to the Supreme Court, which upheld its constitutionality.[65] The referral was condemned by minister Paddy Donegan as a "thundering disgrace", causing Ó Dálaigh to resign in protest. The 1976 EPA expired after one year, but the state of emergency persisted until 1995, when as part of the Northern Ireland peace process it was rescinded as a "confidence building measure" to satisfy physical force republicans after the Provisional IRA's 1994 ceasefire.[66]

The Offences against the State Act does not require a state of emergency under Article 28.3.3°.[67][68] Part V of the Act, which provides for a non-jury Special Criminal Court (SCC), is permitted under Article 38.3.1°.[69][70] Part V is activated by a declaration from the government that it is "necessary to secure the preservation of public peace and order", and it can be rescinded by vote of Dáil Éireann. Provision for internment is similarly activated and rescinded (originally by Part VI of the 1939 act, later by Part II of a 1940 amending act).[67][71][72] Parts V and VI were both activated during the Second World War and the IRA's late 1950s Border Campaign; Part V has been continually active since 1972.[73][74]

Several official reviews of the Constitution and the Offences Against the State Acts have recommended a time limit within which the operation of Article 28.3.3° or Article 38.3.1° must either be explicitly renewed by resolution or else lapse.[75][76][77]

Israel

Israel's Emergency Defence Regulations are older than the state itself, having been passed under the British Mandate for Palestine in 1945. A repeal was briefly considered in 1967 but cancelled following the Six-Day War. The regulations allow Israel, through its military, to control movements and prosecute suspected terrorists in occupied territories, and to censor publications that are deemed prejudicial to national defense.

Italy

In Italy, the state of emergency planned by the legal system is implemented by the Council of Ministers, without the need of a parliamentary vote, due to the Law n. 225 of 1992 on Civil Protection.[78] Moreover, the Article 120 of the Constitution provides that the government can exercise "substitute powers" of local authorities in typically situations: to protect the legal or economic unity of the state, in case of violation of supranational laws and to face a serious danger for safety and public safety.[79] For other emergency, such as a war, a parliamentary vote is required to give extraordinary powers to the government.[80]

The Parliament can also give extraordinary powers to the government in case of health emergency, as it occurred during the COVID-19 pandemic in 2020, when the Parliament approved a state of emergency from 31 January to 15 October 2020, thanks to what the government can implement administrative acts, without the approval of the Parliament.[81]

Macau SAR (China)

The Standing Committee of the National People's Congress can declare a state of emergency and deploy troops from the People's Liberation Army Macau Garrison under the Article 14 of Macau's Basic Law on the defence of the Macau Special Administrative Region.

Since 1999 no emergency measure have been enacted. Prior to 1999 emergency measures have been used for 1 major incident:

Malaysia

In Malaysia, if the Yang di-Pertuan Agong (Monarch) is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.[82]

In the history of Malaysia, a state of emergency was declared by the then-colonial government of Britain. The state of emergency lasted from 1948 until 1960 to deal with the communists led by Chin Peng.

States of emergency were also declared during the Konfrontasi in 1962, the 1966 Sarawak constitutional crisis and 1977 Kelantan Emergency.

When a race riot broke out on 13 May 1969, a state of emergency was declared.

On 11 August 2005 a state of emergency was announced for the world's 13th largest port, Port Klang and the district of Kuala Selangor after air pollution there reached dangerous levels (defined as a value greater than 500 on the Air Pollution Index or API).

Thierry Rommel, the European Commission's envoy to Malaysia, told Reuters by telephone on 13 November 2007 (the last day of his mission) that, "Today, this country still lives under (a state of) emergency."[83] Although not officially proclaimed as a state of emergency, the Emergency Ordinance and the Internal Security Act had allowed detention for years without trial.

On 23 June 2013 a state of emergency was declared by Prime Minister Najib Abdul Razak for Muar and Ledang, Johor as smoke from land-clearing fires in Indonesia pushed air pollution index to above 750. This was the first time in years that air quality had dipped to a hazardous level with conditions worsening as dry weather persisted and fires raged in Sumatra.[84]

Maldives

A state of emergency was declared on 26 December 2004, following the 2004 Indian Ocean Earthquake and Tsunami. The resulting tsunamis caused extensive damage to the country's infrastructure, cutting off communications from large swathes of the nation, decimating islands and forcing the closure of a number of resorts due to the damage.

On 5 February 2018, a state of emergency was declared by Maldives's President Abdulla Yameen for 15 days and ordered security forces into the supreme court and arrested a former president Maumoon Abdul Gayoom and the Chief Justice of Honorable Supreme court of Maldives.[85]

Namibia

Namibia declared last a State of Emergency due to an ongoing drought in 2016.[86]

New Zealand

The Civil Defence Emergency Management Act 2002 gives the Government of New Zealand and local-body councils the power to issue a state of emergency, either over the entire country or within a specific region.[87] This may suspend ordinary work and essential services if need be. States of emergency in New Zealand expire on the commencement of the seventh day after the date of a declaration, unless extended. However, the Minister of Civil Defence or a local mayor may lift a state of emergency after an initial review of a region's status.

  • On 25 March 2020 at 12.21pm, the Minister for Civil Defence Peeni Henare declared a state of national emergency in response to the total cases of COVID-19 reaching 205. Combined with an epidemic notice issued under the Epidemic Preparedness Act 2006, the state of emergency declaration enabled authorities to close most premises in New Zealand and enforce a nationwide lockdown. This also provided access to special powers to combat COVID-19, including powers of requisition and closing roads and restricting movement. Director of Civil Defence Emergency Management Sarah Stuart-Black said these powers sat alongside other powers to ensure essential services could stay up and running.[88] The state of national emergency was renewed four times, to last for a total of five weeks.[89]

Nigeria

In Nigeria, a state of emergency is usually declared in times of great civil unrest. In recent years, it has specifically been implemented in reaction to terrorist attacks on Nigerians by the Islamic jihadist group Boko Haram.

On 14 May 2013, Goodluck Jonathan declared a state of emergency for the entire northeastern states of Borno, Yobe and Adamawa.[92] A more limited state of emergency had been declared on 31 December 2011 in parts of Yobe, Borno, Plateau and Niger states. This earlier declaration included the temporary shutdown of the international borders in those regions.[93]

Pakistan

In Pakistan, a state of emergency was declared five times in its history:

The first three were regarded as the imposition of direct martial law.

Portugal

Letter from the Portuguese President, Marcelo Rebelo de Sousa, to the Speaker of the Assembly of the Republic, Eduardo Ferro Rodrigues, requesting Parliament for authorisation under the terms of the Constitution, for a declaration of the state of emergency in the context of the 2020 COVID-19 pandemic.

The current Constitution of Portugal empowers the President of the Republic[94] to declare a state of siege (Portuguese: estado de sítio) or a state of emergency (Portuguese: estado de emergência) in part or the entirety of the Portuguese territory, only in cases of actual or imminent aggression by foreign forces, serious threats to or disturbances of the democratic constitutional order, or public disasters.[95]

Such declarations allow the entities that exercise sovereignty from suspending the exercise of some of the constitutionally defined rights, freedoms and guarantees, so that the public authorities can take the appropriate and strictly necessary measures for the prompt restoration of constitutional normality; the Constitution, however, sets a temporal limit for these states of emergency (no more than fifteen days, even though renewal is possible) and forbids any suspension of the right to life, to personal integrity, to personal identity, to civil capacity and citizenship, the non-retroactivity of criminal law, the right to a fair trial, or the freedom of conscience and religion.[95] They also may not affect the constitutionally-defined competences and mode of operation of the entities that exercise sovereignty. The Assembly of the Republic may not be dissolved while a state of siege or a state of emergency is in force,[96] nor can the Constitution itself be subject to amendment.[97]

Before declaring a state of siege or a state of emergency, the President is required to consult with the Government and request authorisation to do so from the Assembly of the Republic.[98]

During the Third Portuguese Republic, the only two times such states of exceptional suppression of constitutional provisions were declared were during the failed left-wing coup d'état of 25 November 1975 (state of siege, within the confines of the Lisbon Military Region),[99] and during the COVID-19 pandemic (state of emergency, in the entirety of the Portuguese territory).

Within the remit of the basic law of civil protection services, the Prime Minister can, through a Resolution of the Council of Ministers and without the need of parliamentary approval or presidential promulgation, decree a situation of calamity (Portuguese: situação de calamidade). Lesser exceptional statuses, the situation of contingency (Portuguese: situação de contingência) and the situation of alert (Portuguese: situação de alerta) in descending order of importance, can also be set in motion by other civil protection authorities or Mayors.[100] These three situations allow for some extraordinary measures and special restrictions, but not the suspension of constitutional rights and freedoms.

Romania

In Romania, there are two types of states of emergency, each designed for a different type of situation.[citation needed]

  • State of alert (Stare de alertă in Romanian): Non-military, can be enforced by a prefect. Roadblocks are enforced. Any utilitarian vehicle or equipment can be temporarily used by the state, without any restriction. Evacuation is not mandatory, unless extreme circumstances apply. Only EMS, Police and firefighting personnel are required to intervene. This situation can be enforced in case of natural disasters or civil unrest.
  • State of emergency (stare de urgentă in Romanian): Can only be enforced by the President of Romania with approval from Parliament. The military becomes the upper form of control in the country (under the rule of the president).[citation needed] The civilian population is subject to strict regulations, imposed by the type of emergency.[citation needed] All private and public non-crucial activities are suspended.[citation needed] Essential services might be disrupted. This situation can be enforced in case of extreme circumstances, such as a war.
  • Special zone of public safety (Zonă specială de siguranță publică in Romanian): Administrative, can be enforced by local police. This implies installation of road check-points and higher numbers in police and gendarmes/ riot police presence, patrolling the area. There is also a ban that restricts the right to travel for people in the area; any vehicle and individual transiting the zone are subject to screening.[101][102]

The most well-known event in which the state of emergency has been enforced was because of 1977 Vrancea earthquake.[citation needed]

The last instance in which the special zone of public safety was enforced was in 8 December 2013-ongoing, in Pungești, Vaslui following civil unrest in Pungești from Chevron's plans to begin exploring shale-gas in the village.[103] According to police officials, the special security zone will be maintained as long as there is conflict in the area that poses a threat to Chevron's operations.[101] This special security zone has faced domestic and international criticism for alleged human-rights abuses.

Sierra Leone

Sierra Leone declared, on 7 February 2019, a State of Emergency due to ongoing rape and sexual violence in the country.[104] On 24 March 2020, a state of emergency was declared by His Excellency (Rtd) Brigadier Julius Madaa Bio due to global pandemic of the coronavirus.

South Africa

States of emergency in South Africa are governed by section 37 of the Constitution and by the State of Emergency Act, 1997. The President may declare a state of emergency only when "the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency" and if the ordinary laws and government powers are not sufficient to restore peace and order. The declaration is made by proclamation in the Government Gazette and may only apply from the time of publication, not retroactively. It can only continue for 21 days unless the National Assembly grants an extension, which may be for at most three months at a time. The High Courts have the power, subject to confirmation by the Constitutional Court, to determine the validity of the declaration of a state of emergency.[105]

During a state of emergency the President has the power to make emergency regulations "necessary or expedient" to restore peace and order and end the emergency. This power can be delegated to other authorities. Emergency measures can violate the Bill of Rights, but only to a limited extent. Some rights are inviolable, including amongst others the rights to life and to human dignity; the prohibition of discrimination on the grounds of race, sex or religion; the prohibition of torture or inhuman punishment; and the right of accused people to a fair trial. Any violation of a constitutional right must be strictly required by the emergency. Emergency measures may not indemnify the government or individuals for illegal actions. They may impose criminal penalties, but not exceeding three years' imprisonment. They may not require military service beyond that required by the ordinary laws governing the defence force. An emergency measure may be disapproved by the National Assembly, in which case it lapses, and no emergency measure may interfere with the elections, powers or sittings of Parliament or the provincial legislatures. The courts have the power to determine the validity of any emergency measure.

The constitution places strict limits on any detention without trial during a state of emergency. A friend or family member of the detainee must be informed, and the name and place of detention must be published in the Government Gazette. The detainee must have access to a doctor and a legal representative. He or she must be brought before a court within at most ten days, for the court to determine whether the detention is necessary, and if not released may demand repeated review every ten days. At the court review the detainee must be allowed legal representation and must be allowed to appear in person. The provisions on detention without trial do not apply to prisoners of war in an international conflict; instead they must be treated in accordance with the Geneva Conventions and other international law.

Spain

In Spain, there are three degrees of state of emergency (estado de emergencia in Spanish): alarma (alarm or alert), excepción (exception[al circumstance]) and sitio (siege). They are named by the constitution, which limits which rights may be suspended, but regulated by the "Ley Orgánica 4/1981" (Organic Law).

On 4 December 2010, the first state of alert was declared following the air traffic controllers strike.[106][107] It was the first time since the Francisco Franco's regime that a state of emergency was declared.[108] The second state of alert was declared on 14 March 2020 due to the coronavirus pandemic.[109]

Sri Lanka

In Sri Lanka, the President is able to proclaim emergency regulations under the Public Security Ordinance in the constitution in order to preserve public security and public order; suppression of mutiny, riot or civil commotion; or maintenance of supplies and services essential to the life of the community. These regulations last for one month unless confirmed otherwise by Parliament.[110]

Switzerland

According to Art. 185 of the Swiss Federal Constitution The Federal Council (Bundesrat) can call up in their own competence military personnel of maximum 4000 militia for three weeks to safeguard inner or outer security (called Federal Intervention or Federal Execution, respectively). A larger number of soldiers or of a longer duration is subject to parliamentary decision. For deployments within Switzerland the principle of subsidiarity rules: as a first step, unrest has to be overcome with the aid of cantonal police units.

Syria

An emergency prevailed in Syria from 1962 to 2011. Originally predicated on the conflict with Israel, the emergency acted to centralize authority in the presidency and the national security apparatus while silencing public dissent. The emergency was terminated in response to protests that preceded the Syrian Civil War. Under the 2012 constitution, the president may pass an emergency decree with a 2/3 concurrence of his ministers, provided that he presents it to the legislature for constitutional review.

Trinidad and Tobago

A state of emergency was declared in 1970 during the Black Power Revolution by then Prime Minister Eric Williams. During the attempted state coup by the Jamaat al Muslimeen against the NAR government of the then Prime Minister A. N. R. Robinson,[111][112] a state of emergency was declared during the coup attempt and for a period after the coup.

On 4 August 1995, a state of emergency was declared to remove the Speaker of the House Occah Seepaul by Prime Minister Patrick Manning during a constitutional crisis.[113] The government had attempted to remove the speaker via a no-confidence motion, which failed. The state of emergency was used to remove the speaker using the emergency powers granted.[114]

The Prime Minister Kamla Persad-Bissessar announced a state of emergency on 22 August 2011 at 8:00 pm in an attempt to crack down on the trafficking of illegal drugs and firearms, in addition to gangs. The decision of the President, George Maxwell Richards, to issue the proclamation for the state of emergency was debated in the country's Parliament as required by the Constitution on 2 September 2011 and passed by the required simple majority of the House of Representatives. On 4 September the Parliament extended the state of emergency for a further 3 months. It ended in December 2011.

Turkey

Since the foundation of the Republic of Turkey in 1923 the military conducted three coups d'état and announced martial law. Martial law between 1978 and 1983 was replaced by a state of emergency that lasted until November 2002. The latest state of emergency was declared by President Erdoğan on 20 July 2016 following a failed coup attempt on 15 July 2016 by a faction of the country's armed forces. It was lifted on 18 July 2018.

United Kingdom

In the United Kingdom, only the British Sovereign,[115] on the advice of the Privy Council, or a Minister of the Crown in exceptional circumstances, has the power to introduce emergency regulations under the Civil Contingencies Act 2004, in case of an emergency, broadly defined as war or attack by a foreign power, terrorism which poses a threat of serious damage to the security of the UK, or events which threaten serious damage to human welfare or the environment of a place in the UK. The duration of these regulations is limited to thirty days, but may be extended by Parliament. A state of emergency was last invoked in 1974 by Prime Minister Edward Heath in response to increasing industrial action.

The act grants wide-ranging powers to central and local government in the event of an emergency. It allows the modification of primary legislation by emergency regulation, with the exception of the Human Rights Act 1998 and Part 2 of the Civil Contingencies Act 2004.

United States

The United States Constitution implicitly provides some emergency powers in the article about the executive power :

  • Congress may authorize the government to call forth the militia to execute the laws, suppress an insurrection or repel an invasion.
  • Congress may authorize the government to suspend consideration of writs of habeas corpus "when in cases of rebellion or invasion the public safety may require it."
  • Felony charges may be brought without presentment or grand jury indictment in cases arising "in the militia, when in actual service in time of war or public danger."
  • A state government may engage in war without Congress's approval if "actually invaded, or in such imminent Danger as will not admit of delay."

Aside from these, many provisions of law exist in various jurisdictions, which take effect only upon an executive declaration of emergency; some 500 federal laws take effect upon a presidential declaration of emergency. The National Emergencies Act regulates this process at the federal level. It requires the President to specifically identify the provisions activated and to renew the declaration annually so as to prevent an arbitrarily broad or open-ended emergency. Presidents have occasionally taken action justified as necessary or prudent because of a state of emergency, only to have the action struck down in court as unconstitutional.[116]

A state governor or local mayor may declare a state of emergency within his or her jurisdiction. This is common at the state level in response to natural disasters. The Federal Emergency Management Agency maintains a system of assets, personnel and training to respond to such incidents. For example, on 10 December 2015, Washington state Governor Jay Inslee declared a state of emergency due to flooding and landslides caused by heavy rains.[117]

The 1977 International Emergency Economic Powers Act allows the government to freeze assets, limit trade and confiscate property in response to an "unusual and extraordinary threat" to the United States that originates substantially outside of it. As of 2015 more than twenty emergencies under the IEEPA remain active regarding various subjects, the oldest of which was declared in 1979 with regard to the government of Iran. Another ongoing national emergency, declared after the September 11 attacks, authorizes the president to retain or reactivate military personnel beyond their normal term of service.[118]

Examples

Active in 2020

Past states of emergency

See also

References

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Bibliography

External links

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