States of Emergency - Centre for Policy Alternatives

Termination of a state of emergency is of obvious importance, and
the procedures for declaration usually determine how this occurs.
Many constitutions additionally impose a positive duty on the
institutional actor having the power of declaration to terminate a
state of emergency ahead of its temporal expiry if the threat has
abated or there is no legitimate reason why the state of emergency
should continue.
3.1.3
Legal
Effects
of
a
Declaration
of
Emergency
The legal effect and consequences of a declaration of a state of
emergency for the ordinary constitutional order, comprises the
substantive crux of the matter in addressing the tension between
emergency powers and democratic values. For constitutionmakers,
the relevant questions are as follows: (a) Which elements
of the normal constitutional order are affected, in whole or in part,
or suspended (if at all) by the operation of the emergency regime
(b) What fundamental rights constitutionally protected under
normal circumstances can be limited or derogated from during an
emergency, and to what extent (c) How does the institutional
framework and balance of the constitutional order change (d)
Are amendments to the constitution under emergency powers
permitted, and if so to what extent 120
In addressing these questions, the general pattern among liberal
democratic constitutions shows that while derogations, within
limits, of some fundamental rights as well as greater institutional
space for the executive are permitted, a suspension of the
constitution or empowering emergency‐related constitutional
amendments are disapproved of, although emergency measures
120
See also Cheadle, Davis & Haysom (2002) op cit., Ch.31
79