States of Emergency - Centre for Policy Alternatives

alarm concerns natural disasters, scarcity of basic commodities or
essential services; a state of emergency is declared where ‘the free
exercise of the citizen’s rights and liberties or the normal
functions of democratic institutions, public services essential for
the community or any other aspect of public order are altered to
the extent that the ordinary powers prove insufLicient to reestablish
or maintain them’; and a state of siege is proclaimed ‘in
the event of an insurrection or threat of insurrection or an act of
force against the sovereignty or independence, territorial integrity
and constitutional order of Spain which cannot otherwise be
resolved.’ 97
As with any constitutional design options, the choice of
arrangements depend upon an assessment of the strengths and
weakness of each option in the light of political context. The dual
and multilevel classiLications of emergencies are aimed at limiting
the range of extraordinary powers available to government
through a system of calibration. Thus varying degrees of threat are
tied to a corresponding cascade of legal powers available. These
models therefore are acutely concerned about the equation
between power and liberty, legally regulating the increment of the
former and corresponding decrement of the latter (especially in
regard to constitutionally enshrined fundamental rights) strictly
according to the gravity of the threat.
On the other hand, the classiLicatory approach to the structuring
of emergency powers has its disadvantages. Gross and Ní Aoláin
point out two broad problems, even assuming, as they say, “that
such classiLication and categorisation are viable projects.” 98 Firstly,
97
European Commission for Democracy through Law (1995), op cit., pp.
7‐8
98
Gross and Ní Aoláin: p.45
73