States of Emergency - Centre for Policy Alternatives

historical considerations, and they in turn shape governance and
political cultures in the exercise of emergency powers. In this
section, we turn to some of the political consequences of
emergencies which in spite of, and in some cases, because of
constitutional frameworks continue to pose serious challenges to
liberal constitutionalist assumptions about the separation
between emergency and normalcy, and commitment to the
protection of human rights and the rule of law during times of
crisis. 160
3.2.1
 Constitutional
Accommodation:
Misuse
and
Abuse
As we saw, the objectives of providing for emergency powers that
are Llexible in the face of adversity, yet sufLiciently robust to
protect human rights and the rule of law, constitute the rationale
for the models of accommodation, in particular constitutional
accommodation. As Gross and Ní Aoláin state, “…the argument is
made that the beneLits of accommodation exceed the potential
costs of invoking such models of emergency rule. The models
avoid constitutional and legal rigidity in the face of crisis, allowing
governments to act responsibly, within a legal framework, against
threats and dangers. Operating within the conLines of a legal
system also means that mechanisms of control and supervision
against abuse and misuse of powers – such as judicial review and
parliamentary oversight over the actions of the executive
government – are available and functioning.” 161 Against these
160
Jackson J. also observed that, “…emergency powers tend to kindle
emergencies.”, ibid, at p.650
161
Gross and Ní Aoláin: p.81
93