State of emergency

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A state of emergency is a governmental declaration that may suspend certain normal functions of government, may work to alert citizens to alter their normal behaviors, or may order government agencies to implement emergency preparedness plans. It can also be used as a rationale for suspending civil liberties. Such declarations usually come during a time of natural disaster, during periods of civil unrest, or following a declaration of war (therefore, in democratic countries many call this martial law, most with non-critical intent). Justitium is its equivalent in Roman law.

In some countries, the state of emergency and its effects on civil liberties and governmental procedure are regulated by the constitution or a law that limits the powers that may be invoked during an emergency or rights suspended. It is also frequently illegal to modify the emergency law or Constitution during the emergency.

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[edit] Use and viewpoints

Though fairly uncommon in democracies, dictatorial regimes often declare a state of emergency that is prolonged indefinitely as long as the regime lasts. In some situations, martial law is also declared, allowing the military greater authority to act.

For State parties that are signatories to the International Covenant on Civil and Political Rights (ICCPR), Article 4 permits States to derogate from certain rights guaranteed by the ICCPR in "time of public emergency". Any measures derogating from obligations under the Convention, however, must only be to the extent required by the exigencies of the situation and must be announced by the State party to the Secretary-General of the United Nations.

Some political theorists, such as Carl Schmitt, have argued that the power to decide the initiation of the state of emergency defines sovereignty itself. In State of Exception (2005), Giorgio Agamben has criticized this idea, arguing how the mechanism of the state of emergency deprives certain people of their civil rights, producing his interpretation of homo sacer.

[edit] State of emergency law in selected countries

[edit] Australia

State of emergency legislation differs in each State of Australia.

In Victoria, the Governor can declare a state of emergency if there is a threat to employment, safety or public order. The declaration expires after 30 days, and a resolution of either the upper or lower House of Parliament may revoke it earlier. A declared state of emergency allows the Governor to immediately make any desired regulations to secure public order and safety, under the Public Safety Preservation Act. However, these regulations expire if Parliament does not agree to continue them within 7 days. Also, under the Essential Services Act, the Premier (or delegate) may operate or prohibit operation of, as desired, any essential service (e.g. transport, fuel, power, water, gas).

[edit] Canada

The federal government of Canada can use the Emergencies Act to invoke a state of emergency. A national state of emergency automatically expires after 90 days. The Emergencies Act replaced the War Measures Act in 1988. The War Measures Act has been invoked three times in Canadian history, most controversially during the FLQ Crisis. A state of emergency can also be declared by provincial, territorial, and municipal governments [1].

[edit] Egypt

Egyptians have been living under an Emergency Law (Law No. 162 of 1958) since 1967, except for an 18-month break in 1980. The emergency was imposed during the 1967 Arab-Israeli War, and reimposed following the assassination of President Anwar Sadat. The law has been continuously extended every three years since 1981. Under the law, police powers are extended, constitutional rights suspended and censorship is legalized.[2] The law sharply circumscribes any non-governmental political activity: street demonstrations, non-approved political organizations, and unregistered financial donations are formally banned. Some 17,000 people are detained under the law, and estimates of political prisoners run as high as 30,000.[3]

[edit] France

The state of emergency in France is framed by the constitution of 1955, which states that it can be decreed by the President in the Council of Ministers, but has to be confirmed by Parliament in order to be held after 12 days. State of emergency gives authorities the power to:

  • Regulate or forbid circulation and gathering in some areas
Further information: curfew
  • Close places of gathering
  • Conduct house-to-house searches, 24/7 without judicial oversight
  • Censorship

It may also give the military authority the power to act in place of civilian authorities, if a decree specifies it explicitly. It is unclear though how some of the legal possibilities can be implemented currently, because of various legal changes since the 1950s.

Since 1955, four states of emergency have been decreed:

  • In 1955 in Algeria due to independentist unrest
  • In 1958 due to the uprising in Algeria
  • In 1961 after the Generals' putsch
Further information: Algerian War of Independence
  • In 1984 in New Caledonia due to independentist troubles
  • During the 2005 civil unrest in France, President Jacques Chirac declared a state of emergency on 8 November 2005. It was extended for three months on 16 November by the Parliament, dominated by the UMP majority. On December 10, France's highest administrative body, the Council of State, ruled that the three-month state of emergency decreed to guarantee calm following unrest was legal. It rejected a complaint from 74 law professors and the Green party, declaring that the conditions that led to the unrest that started on October 27, the quick spread of violence, and the possibility that it could recur justify the state of emergency, which is to end in mid-February. The complaint challenged the state of emergency's necessity and said it compromised fundamental liberties[4] [5] [6].

[edit] Germany

The Weimar Republic constitution allowed states of emergency under Article 48 to deal with rebellions. Article 48 was invoked numerous times during the 14-year life of the Republic, sometimes for no reason other than to allow the government to act when it was unable to obtain a parliamentary majority.

After the February 27, 1933 Reichstag fire, a false flag attack blamed on the communists, Adolf Hitler declared a state of emergency using Article 48, and then had president von Hindenburg sign the Reichstag Fire Decree, which suspended the Weimar Constitution for the whole duration of the Third Reich. Therefore, the Weimar Constitution wasn't repealed by Nazi Germany, but simply "indefinitely suspended". After the prohibition of the Communist Party of Germany (KPD) on March 1, 1933, the NSDAP had hands free to vote the March 23, 1933 Enabling Act, which enabled Chancellor Adolf Hitler and his cabinet to enact laws without the participation of the Reichstag. These two laws signaled the implementation of the Gleichschaltung; the Nazis institution of totalitarianism.

In the postwar Federal Republic of Germany, the Notstandgesetze (amendments to the Constitution passed on May 30, 1968 as a reaction to the resistance of the Ausserparlamentarische Opposition (APO), the extraparliamentary opposition, despite fierce opposition by the German student movement) states that the basic constitutional rights of the Grundgesetz may be limited in case of a state of defence (war), a state of tension (uprisings), or an internal state of emergency or disaster (catastrophe).

[edit] Hungary

According to the Hungarian Constitution the National Assembly of Hungary can declare state of emergency in case of armed rebellion, natural or industrial disaster. It expires after 30 days, but can be extended. Most civil rights can be suspended, but basic human rights, like right to live, ban of torture, freedom of religion can not.

During state of emergency, the Parliament can not be disbanded.

[edit] India

In India, an external state of emergency was declared three times during wars:

In 1975 Prime Minister of India Indira Gandhi declared a state of internal emergency (the Indian Emergency (1975 - 77)) after she was indicted in a corruption scandal and was ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree till 1977. India made great economic strides during the two year emergency period, but political opposition was heavily suppressed. Civil liberties were suspended and a mandatory birth control program was introduced by the government. Confident about her chances of getting reelected, Indira Gandhi relaxed the emergency and released dissidents. She then was trounced by an anti-Indira grand coalition in the 1977 elections.

[edit] Ireland

According to Article 28.3.3. of the Constitution of Ireland, "no article of the Constitution may be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law". The time of war or armed rebellion includes actions outside the state itself, and is not limited in time to the duration of the war or armed rebellion. A state of emergency was declared in 1939 at the outbreak of the Second World War, though Ireland was not a participant, which was not lifted until 1972, only to be succeeded by a second state of emergency to deal with the Troubles in Northern Ireland, which lasted until the IRA ceasefire in 1994.

[edit] Spain

In Spain there are three degrees of state of emergency (estado de emergencia in Spanish): alerta (alert), excepción (exception[al circumstance]) and sitio (siege). They are named by the constitution, which limits which rights may be suspended, but regulated by the "Ley Orgánica 4/1981" (Organic Law).

[edit] United Kingdom

In the United Kingdom the Privy Council or a Senior Minister may make emergency regulations under the Civil Contingencies Act 2004 if there is a serious threat to human welfare or the environment or in case of war or terrorism. These last for seven days unless confirmed by Parliament.

[edit] United States

A federal emergency declaration allows the United States Federal Emergency Management Agency (FEMA) to exercise its power to deal with emergency situations; federal assistance also becomes available to areas that are declared to be in a state of emergency. For FEMA, emergency declarations are different from the more common disaster declarations done for hurricanes and floods.

In the United States, the head of the executive branch has the authority to declare a state of emergency. The President of the United States, a governor of a state, or even a local mayor may declare a state of emergency within his or her jurisdiction. This is relatively rare at the federal level, but quite common at the state level in response to natural disasters. Typically, a state of emergency empowers the executive to name coordinating officials to deal with the emergency and to override normal administrative processes regarding the passage of administrative rules.

The courts in the United States are often very lenient in allowing almost any action to be taken in the case of such a declared emergency, if it is reasonably related. For example, habeas corpus is the right to challenge an arrest in court. The U.S. Constitution says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Constitution also provides an exemption from the privilege of a grand jury hearing for cases arising in the military when in service in a time of "public danger." These are the only emergency provisions in the Constitution.

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads", or those in the Union who supported the Confederate cause. Lambdin Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court in 1864. However, their execution was not set until May 1865, so they were able to argue the case after the Civil War. It was decided in the Supreme Court case Ex Parte Milligan 71 US 2 1866 that the suspension was unconstitutional because civilian courts were still operating, and the Constitution (according to the Court) only provided for suspension of habeas corpus if these courts are actually forced closed.

The Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer established that Presidents may not act arbitrarily during an emergency. In 1976 the National Emergencies Act set a limit of two years on emergency declarations unless the president explicitly extends them.

Since the September 11, 2001 attacks, President George W. Bush has claimed emergency authority to detain individuals and conduct warrantless surveillance. In 2006 he suspended (by legislation) the privilege of habeas corpus for aliens detained as enemy combatants.

[edit] Examples

[edit] Ongoing

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  • Tonga's Prime Minister decleared a State of Emergency on November 17, 2006 due to civil unrest in the nations capital

[edit] Past states of emergency

Main article: Indian Emergency

[edit] See also

[edit] References

  • Giorgio Agamben, State of Exception (2005) [Excerpt online: A Brief History of the State of Exception ]
  • Walter Benjamin, Zur Kritik der Gewalt ("Criticism of Violence")
  • Carl Schmitt, The Dictature and Political Theology
  • Conradin Wolf, Ausnahmezustand und Menschenrecht (2005)

[edit] External links

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de:Ausnahmezustand fr:État d'urgence (France) id:Keadaan darurat kn:ತುರ್ತು ಪರಿಸ್ಥಿತಿ lt:Karo padėtis nl:Noodtoestand ja:非常事態宣言 pt:Estado de sítio th:สถานการณ์ฉุกเฉิน tr:Sıkıyönetim zh:紧急状态

State of emergency

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