States of Emergency - Centre for Policy Alternatives

siege is therefore a legal institution of crisis government. As Radin
points out, “The vital point is that the state of siege is not a
condition in which law is temporarily abrogated, and the arbitrary
Liat of a ‘commander’ takes its place. It is emphatically a legal
institution, expressly authorised by the constitutions and the
various bills of rights that succeeded each other in France, and
organised under this authority by a speciLic statute.” 29
While the transfer of powers (in relation to the maintenance of
order and the security of the Republic) from political to military
authorities during an emergency is the basic premise of the
French model, it is subject to critical safeguards that make it
neither an automatic nor an unfettered transfer. The procedural
requirements and substantive effects of the state of siege are all
statutorily regulated and are always subject to (suitably abridged)
constitutional rights. Thus, the model contemplates strong
requirements of demonstrable constitutional necessity before a
state of siege is brought into operation; legislative control over its
declaration; limitations in time of its operation; the continuation
of constitutional rights except to the extent legitimately restricted
under the state of siege; and the preservation of the separation of
powers between the executive and legislature and of functions
between the civilian and military authorities, including political
oversight over and co‐operation with the military. 30
29
Max Radin (1942) ‘Martial
Law
and
the
State
of
Siege’ 30 California
Law
Review 634 at p.637
30
See Gross and Ní Aoláin: pp.26‐30; Rossiter (1948), op cit., pp.79‐129
41