States of Emergency - Centre for Policy Alternatives

As we noted before, the institution of the dictatorship in the
Roman republic has served as the model for modern democracies
in devising their constitutional and legal arrangements with
respect to emergency powers. The features of the Roman model
germane to modern constitution‐makers are, in Gross and Ní
Aoláin’s summary: “temporary character, recognition of the
exceptional nature of emergencies, appointment of a dictator
according to speciLic constitutional forms that separated, among
other things, those who declared an emergency and those who
exercised dictatorial power on such occasions, the appointment of
dictators for well‐deLined and limited purposes, and the ultimate
goal of upholding the constitutional order rather than changing or
replacing it.” 74
In this chapter, we review a selection of comparative experiences
on how to constitutionally accommodate the tension between
providing for emergency powers and the preservation of core
democratic values. In this regard, it will be seen that in addition to
procedural safeguards and institutional checks, many democracies
also envisage substantive limitations on the scope of emergency
powers, most prominently through the device of a bill of rights.
This allows us, in the following chapter, to explore the
international legal and directory standards that have been
developed in regulating states of emergency.
74
Oren Gross and Fionnuala Ní Aoláin (2006) Law
in
Times
of
Crisis:
Emergency
Powers
in
Theory
and
Practice
(Cambridge: Cambridge UP);
hereinafter Gross and Ní Aoláin
65