Emergencies: on the misuse of government powers (original) (raw)
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Profiting from Natural Disaster ? Inquiring into the Effectiveness of Emergency Constitutions
2016
of Emergency Constitutions PRELIMINARY – PLEASE ASK AUTHORS FOR LATEST VERSION BEFORE CITING Christian Bjørnskov* and Stefan Voigt Abstract: Today, 9 out of 10 constitutions contain explicit emergency provisions. Their purpose is to help governments cope with extraordinary events that endanger many people or even the existence of the state tout court. In this paper, we deal with two questions: (1) does the constitutionalization of emergency provisions help governments to cope with disasters and other extraordinary events? (2) Among the most common types of emergency constitutions, which ones fare best? We find that the more advantages emergency constitutions confer to the executive, the higher the number of people killed as a consequence of a natural disaster, controlling for its severity. Furthermore, the easier it is to call a state of emergency, the larger the negative effects on basic human rights. Interestingly, presidential democracies are better able to cope with natural disa...
2015
By now, nine out of ten countries have included emergency provisions into their constitutions. These provisions remain poorly understood. This paper therefore aims at providing first answers to three questions: 1) which particular provisions are most often included in emergency constitutions; 2) how much additional discretionary power do emergency constitutions allow and which political actors are given the additional power; and 3) which political and economic factors cause the inclusion of particular emergency provisions into constitutions. We discuss three theoretical motives possibly leading to the creation of such provisions, namely (1) a pragmatic, (2) a power-maximizing and (3) a commitment motive. We test our theoretical conjectures and find that emergency constitutions in countries with stronger veto institutions, higher average income, and which recently experienced a coup allow more discretionary power while countries that are prone to natural disasters and countries far f...
Unconstitutional States of Emergency
The Journal of Legal Studies
Nine out of ten modern constitutions contain explicit emergency provisions, describing who can call a state of emergency (and under which conditions) and the additional powers government enjoys under a state of emergency. As states of emergency typically allocate additional powers to the executive, they lend themselves easily to abuse and provide political incentives to declare emergencies. In this paper, we analyze under what conditions government behavior under a state of emergency deviates from constitutional provisions and a de jure/de facto gap thus emerges. Such a gap can be caused by the unlawful declaration of an emergency, the noncompliance with constitutional provisions in the course of an emergency, or the perpetuation of a state of emergency beyond the constitutionally defined length. Based on a novel dataset comprising 853 emergency declarations, 115 are identified as unlawful. We find that events caused by political 1 This paper emerged out of the joint research project "The Economics of Compliance with Constitutions" supported by the DFG (381589259) and the NCN within the Beethoven 2 initiative. The authors thank Abishek Choutagunta for his help in creating the dataset underlying this paper. Bjørnskov gratefully acknowledges support from the Jan Wallander and Tom Hedelius Foundation. The authors thank Dan Brinks,
The Emergency Paradox: Constitutional Interpretation in Times of Crisis
SSRN Electronic Journal, 2020
The Covid-19 pandemic has presented an extreme challenge to legal and political structures around the globe. Institutions are struggling to cope with this new reality, none more strenuously than our legal systems which have rapidly introduced and frequently amended criminal and other sanctions in the hopes of curbing the spread of the virus. In such circumstances, the old adage that desperate times call for desperate measures rings true, prompting calls for a loosening or suspension of previously held legal norms. This paper explores the role that the concept of an emergency plays in our interpretation of fundamental constitutional principles such as the rule of law. Emergencies are, ironically, commonplace. Fires break out and road accidents occur on a daily basis. Indeed, so frequently that we employ full-time emergency services to respond to them. The normalcy of emergencies reveals a descriptive paradox, given that emergencies are often defined as abnormal instances demanding extraordinary responses. As Greene puts it, "emergencies are simultaneously a universal, inevitable reality but also unforeseen, exceptional events invariably requiring equally exceptional responses". 1 If our contention is that an emergency is something exceptional, which requires an exceptional response, it becomes difficult to see how fires or road accidents qualify. In most cases, there is actually not much which is exceptional about an emergency, particularly from the perspective of the law. Even large-scale crises such as natural disasters or viral outbreaks can and have been addressed within the ordinary confines of existing institutional structures, with, at most, a fast-tracked timeline or loosening of some procedural red tape. And yet, these examples do often warrant a different response, even if it is not a wholly exceptional one. The difficulty then arises as to how emergencies interact with our constitutional norms, particularly those relating to the interpretation of legal concepts. Crises such as these force us to reconcile the exceptional with the fundamental. If emergencies are to have any legal significance such that they might trigger a state of exception, they must amount to more than simply natural concepts; they must also be legal concepts, interpreted harmoniously with 1 A Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (2018) 1.
Providing for the Unexpected: Constitutional Emergency Provisions
The article seeks to examine some of the general patterns with respect to treating emergencies as they are reflected in domestic constitutional arrangements. The article explores existing constitutional emergency arrangements of over seventy countries around the world, attempting to classify some of the important attributes of such constitutional arrangements into meaningful categories. Specifically, the article examines the various constitutional options with respect to such questions as: (1) how (and whether) to define a state of emergency in the constitutional document; (2) who has the power and authority to declare a state of emergency (and to terminate such a declaration); (3) what political and judicial control (if any) exists under the constitutional framework over the use of emergency powers; and (4) what are the legal ramifications of declaring a state of emergency with respect, for example, to the protection of individual rights and civil liberties and the possibility of s...
The constitutions of the Central and Eastern European (CEE) states exemplify a judicial or constitutional model for the treatment of emergency situations and emergency powers. Even though this region and this area of constitutional law have been underexplored so far, and there are no empirical experiences to call on, approaches based on the Kelsenian views and drafting techniques used by CEE constitutions may be of interest to other states trying to make more detailed provision for emergency situations and powers in their own constitutions. When regulating emergencies, the constituent powers of most CEE states have duly considered the dichotomy between lessening constitutional burdens in emergencies and the need to avoid the abuse of powers. They contain rigorous and detailed rules on who does what, for how long in differently defined emergency situations, and not only clarify the prohibition on the suspension of the constitution and the functioning of the constitutional court, but also specify derogations from fundamental rights obligations. It is also stipulated that during emergencies, the principles of temporality and functionality, necessity and proportionality, legality, continuity and constitutionality (or constitutional review) apply. These regulatory schemes, on the other hand, can be seen as examples of how the constitution and constitutionality may be abused not solely in times of emergency but also when regulating emergency situations. Hungary, a state that has shared the well-elaborated, closed and detailed constitutional design adopted by the CEE states towards guaranteeing that emergency rules are not corrupted, may not be a good role model. Therefore, in times of normality, when regular governance is still possible, this paper concludes that it may not be the actual abuse of emergency power which is dangerous, but the abusive regulation of emergency situations and powers by the bypassing of constitutional procedures, secrecy, and non-transparency of decisions and vague drafting.
Governing Natural Disasters: State Capacity, Democracy, and Human Vulnerability
Social Forces, 2014
From the perspective of historical institutionalism, I argue that state capacity, democracy, and their interaction shape the distribution of human vulnerability in natural disasters. The ruling elite, irrespective of whether it is democratic, has the incentive to develop state capacity to prevent damage caused by natural disasters, which is considered a threat to its rule and revenue. To win elections in a democracy, the elite may increase public spending for disaster mitigation in favor of voters' demands. Democracy also empowers civil society and stimulates social spending, which benefits vulnerable citizens. Thus, a strong state capacity effectively reduces human vulnerability, especially in a democracy. I used panel data from 150 countries between 1995 and 2009 to demonstrate the relationship among state capacity, democracy, and the impact of disasters. After controlling for the density and magnitude continuity of natural-disaster hazards, the empirical results I obtained from the multilevel models indicate that democracy reduces the disaster mortality rate, and a strong state capacity mitigates the effect of a disaster on a population, especially in a democracy. I also found that state capacity and democracy are more effective in preventing human losses caused by predictable disasters such as floods and storms, rather than earthquakes.
We aim to complement the work of legal scholars by investigating the effects of constitutional provisions for states of emergency, on the respect for personal (or physical) integrity rights, in instances in which governments are confronted with domestic crises. Our findings show that such constitutional provisions have an important impact on governments' propensities to abuse such rights. However, these impacts are not always what one might expect, and indeed, our findings suggest that following the recommendations of lawyers groups may actually have a damaging effect on human rights in many instances.
EMERGENCIES AND DEMOCRATIC FAILURE
Critics of emergency measures such as the U.S. government's response to 9/11 invoke the Carolene Products framework, which directs courts to apply strict scrutiny to laws and executive actions that target political or ethnic minorities. The critics suggest that such laws and actions are usually the product of democratic failure, and are especially likely to be so during emergencies. However, the application of the Carolene Products framework to emergencies is questionable. Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. The related arguments that during emergencies courts should protect aliens, and should be more skeptical of unilateral executive actions than of actions that are authorized by statutes, are also of doubtful validity.