States of Emergency - Centre for Policy Alternatives

may override ordinary statutes. As Gross and Ní Aoláin note, “…in
order to prevent repetition of the mistakes that led to the
destruction of the Weimar constitutional experiment…modern
constitutional provisions often proscribe any change or
modiLication of the constitution itself during an emergency, or at
least any change to, or modiLication of, the nature of the regime
and its core constitutional norms.” 121
Nonetheless, two prominent examples of liberal democratic
constitutions permitting fairly broad suspension of constitutional
provisions during times of emergency are those of the Swiss
confederation and the Irish Republic. Under the doctrine of régime
des
pleins
 pouvoirs (regime of plenary powers), the Swiss federal
government can act to safeguard the confederation’s security,
independence, neutrality or economic interests in emergencies,
when the legislature cannot meet or the legislative process can no
longer function. While such an extreme assumption of power by
the federal government would be deemed unconstitutional
normally, in the circumstances it becomes operational, the
doctrine offers practically no limits, apart from Switzerland’s
obligations under the European Convention of Human Rights, on
the power of the federal executive.
Likewise, the constitution of the Irish Republic contains a bizarre
provision, Article 28.3.3°, which suspends the constitution
including fundamental rights in times of emergency through the
121
For e.g. Article 89 (4) of the French Constitution; Articles 187, 196 of
the Belgian Constitution; see Gross and Ní Aoláin: p.60‐61. Under Article
155 of the Sri Lankan constitution, the President is empowered to make
emergency regulations which can override the provisions of any ordinary
law, but not the provisions of the constitution. This is salutary. But in
practice, rule by emergency powers have become so endemic, and
executive accountability so weak, that emergency rule‐making often
strays into the sphere of the unconstitutional: see Chapter 5, infra
80