States of Emergency - Centre for Policy Alternatives

of emergency. It is true that the deLining ‘emergency’ is difLicult if
not impossible. Thus constitution‐makers proceed on a hypothesis
on what might be involved and what powers may be reasonably
needed by the State, balanced by procedural and substantive
limitations. These strike different equilibria between legal
regulation and political discretion depending on local context and
constitutional culture. For the same reasons, they also
demonstrate a wide variety of institutional arrangements.
One way of doing this is to provide for a general state of
emergency, but restrict its invocation through the explicit
speciLication of aims and purposes. This is the approach of the
South African constitution, 80 which requires a declaration of
emergency, in terms of a law passed by Parliament, 81 when ‘the life
of the nation is threatened by war, invasion, general insurrection,
disorder, natural disaster or other public emergency’, 82 and then
only to the extent emergency powers are necessary to restore law
and order. 83 Likewise, the Israeli Basic Law provides for one type
of state of emergency, but unlike the South African example,
80
See Nicholas Haysom, ‘States
of
Emergency’ in Halton Cheadle, Dennis
Davis & Nicholas Haysom (2002) South
African
Constitutional
Law:
The
Bill
of
Rights
(Durban: Butterworths): Ch.31
81
Now the State of Emergency Act 86 of 1995, which repealed and
replaced the Public Safety Act 3 of 1953
82
Section 37 (1) (a) of the Constitution of the Republic of South Africa Act
108 of 1996 (the ‘Final Constitution’). Cf. Articles 180‐182 of the
Constitution of Ecuador and Article 29 of the Constitution of Mexico
83
Section 37 (1) (b)
68