States of Emergency - Centre for Policy Alternatives

Legislative
Accommodation
One of the problems of constitutional accommodation is that it is
difLicult, ex
 ante, to anticipate every exigency and thereby to
provide for them comprehensively. Therefore constitutional
instruments may establish only the general framework required to
address the imperatives of a particular crisis and the measures
needed to deal with it. In the case of some jurisdictions, there may
be no constitutional guidance on states of emergency at all. In
both cases, legislation is the most common means by which crises
are dealt with under the law.
Legislative accommodation in turn can be of two separate types.
Legislation in response to a crisis may modify the existing law to
deal with speciLic challenges presented by the crisis, or
alternatively, they can fall under the category of special emergency
legislation. As Gross and Ní Aoláin explain, “This model [of special
emergency legislation] also adheres to the notion that emergency
must be met under the umbrella of the law. Yet, at the same time, it
regards ordinary legal norms to be inadequate for dealing with the
pressing needs emanating from speciLic emergencies. Rather than
attempting to modify existing legal norms…the effort is directed at
creating replacement or supplementary emergency norms that
pertain to the particular exigency (or to potential future
exigencies).” 41 The Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of 2001, the Lirst British Prevention
of Terrorism (Temporary Provisions) Act of 1974 and the Sri
Lankan Prevention of Terrorism (Temporary Provisions) Act No.
48 of 1979 are all examples of legislative responses in an
emergency context to speciLic events and threats.
41
Gross and Ní Aoláin: p.67
47