States of Emergency - Centre for Policy Alternatives

normative expectations of the accommodative approach, practical
experience suggests that confronted with the exigencies of a crisis,
the models have not always been able to withstand the
depredations of assertive executives, rendering them meaningless,
apologetic and unprincipled. 162
Constitution‐making involves anticipation of future exigencies, but
it cannot ensure ofLicial and political compliance with the letter,
and more importantly, the spirit of the constitutional instrument,
however great the perspicacity of its drafters and howsoever
perfect and elegant its text. Thus, the experience that judges and
legislators have been unable to assert their institutional role, so as
to meaningfully give effect to constitutional safeguards during
times of emergency, is as much or more a matter of politics as of
constitutional law. As Friedrich observed, “There are no ultimate
institutional safeguards available for insuring that emergency
powers be used for the purpose of preserving the constitution…All
in all the quasi‐dictatorial provisions of modern constitutional
systems, be they martial rule, state of siege or constitutional
emergency powers, fail to conform to any exacting standard of
effective limitations upon a temporary concentration of powers.
Consequently, all these systems are liable to be transformed into
dictatorial schemes if conditions become at all favourable to it.” 163
Indeed, the subversion of constitutional arrangements by
usurpers and autocrats is as old as the idea of constitutional
government itself. The institution of the emergency dictatorship of
162
See Eric A. Posner & Adrian Vermeule (2003) ‘Accommodating
Emergencies’ 56 Stanford
Law
Review
605, at p.607
163
Carl J. Friedrich (1968) Constitutional
Government
and
Democracy:
Theory
and
Practice
in
Europe
and
America
(4 th Ed.) (Massachusetts:
Blaisdell): p.570
94