To prepare the article, the relevant legislation of 30 countries was analyzed: USA, Spain, Great Britain, Germany, Israel, Argentina, India, Croatia, Brazil, Bulgaria, Czech Republic, Chile, Canada, Estonia, Greece, Hungary, South Korea, Latvia, Lithuania, New Zealand, Netherlands, Poland, Peru, Romania, South Africa, Slovenia, Serbia, Slovakia, Switzerland, Portugal. It can be seen that all these countries can be considered democracies.
Ways to impose a state of emergency
A state of emergency is a legal regime that is introduced when the state cannot eliminate the existing threats by other, ordinary means. This is an extreme measure. The procedure for imposing a state of emergency in most of the analyzed countries does not differ from the imposition of a state of siege or martial law. That is, a state of emergency is equated with a declaration of war. And in some countries (for example, Greece, Chile, Brazil, Argentina) there is no legal regime called “state of emergency”. If there is an emerging threat in these states (even if it is non-military), then a state of siege is declared there . That is, the legal regime for counteracting both military and non-military threats is the same.
Among the analyzed countries, federations can be singled out. In unitary states, a state of emergency is declared at the national level by the head of state, government, or parliament. In federations, a state of emergency can be imposed both at the federal level and the level of the subjects of the federation. For example, in Canada, a state of emergency may be imposed at both the Canadian and Ontario or Manitoba governments. Examples of such federations are Canada, the United States, and Argentina. This article focuses on the analysis of the mechanisms for imposing a state of emergency by the central government.
Parliament, the government and the president, are the actors in the state of emergency. The emergency procedure must perform two tasks simultaneously: 1) rapid response to threats and, at the same time, 2) preservation of the democratic regime, i.e., prevention of dictatorship. It is to protect the democracy that such a “clumsy” body as the parliament is involved in the procedures for declaring a state of emergency. Depending on the procedure, the specific algorithm for introducing a state of emergency, we have distinguished 5 scenarios.
Parliament approves the decision of the executive (president or government) to impose a state of emergency. It goes like this:
- The government (in some countries – the president) sends a proposal to the president (or, respectively, the government) to declare a state of emergency. This step is optional; the law of some states does not require such a proposal.
- The president (in some countries – the government) decides to impose a state of emergency.
- Parliament convenes for an urgent sitting to approve a decision to impose a state of emergency. This usually takes 1-2 days.
- If the parliament approves such a decision of the president, a state of emergency is imposed. If the issue of imposing a state of emergency does not find the required number of votes in favor, the imposition of a state of emergency is canceled.
There are two options for when a state of emergency is imposed. The first option – the decision to impose an emergency comes into force only after approval of such a decision by parliament. The second option is that a state of emergency takes effect immediately after the president signs such a decision. Still, if the parliament does not approve the decision, then it becomes invalid.
Ukraine, Slovenia, Romania, Portugal, New Zealand, Latvia, and Canada have such a procedure of imposing a state of emergency.
Parliament does not revoke the decision of the executive (president or government) to impose a state of emergency. The procedure, in this case, should be as follows:
- The government (in some countries – the president) sends a proposal to the president (respectively, in some countries – the government) to declare a state of emergency. This step is optional; the law of some states does not require such a proposal.
- The president (in some countries – the government) decides to impose a state of emergency. This decision takes effect immediately after signing. As soon as the decision to impose a state of emergency is made, it takes effect.
- Parliament convenes to discuss the decision to declare a state of emergency. This usually takes 1-5 days.
- If parliament does not agree to a state of emergency, it can vote to overturn the president’s decision. The proposal to cancel the decision to impose a state of emergency must gain enough votes in favor. Otherwise, the state of emergency will continue to operate.
The main difference between the first two methods is that the imposition of a state of emergency under Scenario №1 requires the support of the majority of deputies, and under Scenario №2 – non-interference of deputies, their failure to decide to cancel.
Examples of countries that have such a procedure of imposing a state of emergency are the United States, Poland, South Korea, and India.
Parliament decides to declare a state of emergency. This happens in just two steps:
- Parliament convenes and considers the imposition of a state of emergency. This initiative can come from both the government and the parliament itself.
- A state of emergency is declared if the parliament adopts this decision by collecting the required number of votes in favor.
This is how Serbia, Lithuania, Israel, Hungary, Greece, Estonia, Croatia, Bulgaria, and Argentina are imposing a state of emergency.
According to Scenario №3, all power over the state of emergency is concentrated in the hands of parliament. The question arises – what to do if the parliament cannot convene quickly? This also applies to states where the decision to impose a state of emergency requires parliamentary approval.
Some countries have special procedures in case the parliament fails to convene to declare or declare a state of emergency. They are that another authority is allowed to declare a state of emergency. It is important to clarify: even if another entity has declared a state of emergency, the parliament should still convene as soon as possible and approve such a decision. A state of emergency declared by another entity is in effect until the first sitting of the parliament. If the parliament does not approve the decision to impose a state of emergency at this sitting, the state of emergency is terminated.
Special procedures should simultaneously ensure a rapid response to emergencies and protect the country from individual control as much as possible. Therefore, the criteria for determining that the parliament really cannot convene and that another entity must exercise its power to impose a state of emergency are important. Most often, such a criterion is a break in the plenary work of the parliament, a non-session time, or a dissolved parliament.
For the most part, the president takes over the parliamentary functions of imposing a state of emergency. In Slovenia, Lithuania, Bulgaria, or Argentina, in the event of parliamentary failure, a state of emergency is declared by the president alone.
In Israel, if the Knesset is not convened, a state of emergency can be declared by the government, and if the government cannot meet, then a state of emergency can be declared by the prime minister alone.
To prevent the seizure of power, the imposition of a state of emergency may require the approval of such a decision by several entities at once. For example, in Serbia, it is the president, the prime minister, and the speaker. In Greece and Croatia, there is a president and a government. In Hungary, a president can declare a state of emergency only if the speaker, the prime minister and the chairman of the constitutional court testify at the failure of parliament to convene.
Also, parliamentary powers can be transferred to another parliamentary entity, as in Portugal. In this country, such powers are transferred to a body called the Standing Committee (similar in form to the Ukrainian Conciliation Council).
The executive branch imposes a state of emergency, but only the parliament can extend the state of emergency. The procedure is as follows:
- The government, the president, or the monarch declares a state of emergency. It enters into force immediately after the signing of the decision to impose a state of emergency.
- The state of emergency is valid for a certain number of days (usually up to 30 days).
- Only the parliament can prolong the state of emergency. The entity that imposed the state of emergency cannot continue it.
In most countries, parliament can terminate a state of emergency early. Still, unlike Scenario 2, in Scenario 4, the parliament does not necessarily meet to discuss the feasibility of a state of emergency.
Examples of countries that have such a state of emergency are South Africa, Great Britain, and the Czech Republic.
The executive branch imposes a state of emergency. The algorithm includes only two steps:
- The government and the president agree on a state of emergency.
- Authorities declare a state of emergency. It takes effect immediately and does not need to be approved by parliament.
This is the harshest way to impose a state of emergency, which carries the highest risk of usurping power. Scenario №5 operates, for example, in Peru.
So, there are five emergency procedures. They all differ mostly in the role of parliament.
Terms of the state of emergency
The decision to impose a state of emergency should often cover 4 points:
- state of emergency,
- the duration of the state of emergency,
- list of emergency measures;
- list of limited constitutional rights and freedoms.
Now we are going to talk about deadlines. States usually determine the time for which a state of emergency may be initially imposed. This term is set in the form of an upper bar, i.e., “not more than X days”. The number of days for a one-time state of emergency varies significantly from country to country.
The lower threshold of the state of emergency is 15 days (two weeks). It applies to Portugal, Greece, and Chile.
In South Africa, it is already 21 days (three weeks).
The most common is 30 days (1 month). That much a state of emergency can last, for example, in the UK, Spain, India, the Czech Republic, Brazil, and Ukraine as well.
In Peru, a state of emergency can be imposed for 60 days (2 months).
The term of 90 days (3 months) is also popular. It applies to Serbia, Poland, Estonia, Canada.
In Lithuania, a state of emergency can be imposed for 180 days (6 months).
Israel and the United States have the longest time for a state of emergency. There it is for 1 year.
It is crucial that the time for which a state of emergency is declared can be extended, shortened, or left unchanged.
The implementation procedure and the emergency extension procedure usually do not differ (except for Scenario №4). That is, if the imposition of a state of emergency requires the parliament to approve the president’s decision, the continuation will follow the same algorithm.
But there are exceptions to every rule. In most countries, both the introduction and continuation of the state of emergency requires an absolute majority of MPs’ votes (at least 50% + 1 vote). But, for example, in Croatia, the number of MPs who have to vote for the restriction of constitutional rights is equal to 2/3 of the parliament. In Greece, the imposition of a state of emergency requires 3/5 of the votes of MPs, and a simple majority is needed to continue this state. In South Africa, by contrast, the first extension can be made by a simple majority, and subsequent extensions require 3/5 votes of the parliament.
If the threat posed by the state of emergency has been eliminated, then the state of emergency may be terminated early. The authority that imposed the state of emergency has the power to end the state of emergency early. However, even if a state of emergency was not imposed by parliament, in most cases, parliament still has the power to terminate the state of emergency early. Some states even specifically prescribe the procedure for convening a meeting of parliament, which should consider early cancellation.
In particular, in India, a meeting on the abolition of the state of emergency may be convened at the request of 1/10 of the lower house of parliament (in India, the right to terminate a state of emergency has the lower house). In Canada, such a meeting should be convened at the request of 10 senators, or 20 members of the House of Commons.
Measures for the period of emergency
The procedure for imposing a state of emergency is not easy. A state of emergency allows the authorities to take measures to which they are generally not entitled. These emergency measures are needed to counter particularly dangerous threats.
A typical set of measures that can be introduced during a state of emergency is the restriction of constitutional rights and freedoms of citizens, seizure of property, requisition, evacuation, a special order of distribution of food and necessities. An army, which should generally be used to wage war and counter enemies, may be called upon in a state of emergency to counter threats within the country.
In a state of emergency, special financial measures are possible: for example, exceeding public debt limits or budget deficit limits. By the way, these issues are settled in this way in Spain and India.
In addition to all the above, in some countries, the state of emergency also allows the adoption of emergency legislation. The scope of emergency legislation varies and can be quite broad.
Acts of emergency legislation may:
- Increase the constitutional competence of the executive and/or legislative branches of government.
- Make changes to almost any regulations (these changes are made in circumvention of the usual procedure).
- Suspend regulations.
- Introduce emergency courts.
- Introduce additional taxes and fees.
- Implement emergency budget measures.
- Introduce other sanctions for violating the rules.
- In the case of federations, emergency measures may involve the possibility of direct management when the central (federal) authorities assume the powers of the bodies of the federation (for example, in India).
Emergency legislation usually expires with the expiration of the state of emergency. However, in some countries, it can be valid for up to 2 months after the end of the state of emergency.
In general, in democracies, there are two typical modes of issuing legislation about a state of emergency:
- The executive branch issues emergency legislation, with the subsequent approval of such legislation by parliament. Such a mechanism operates, for example, in Slovenia and Greece.
- The executive branch issues emergency legislation. Simultaneously with the issuance of emergency legislation, the executive informs the parliament about which law has been introduced. If the parliament considers the proposed emergency legislation inexpedient, it cancels it by its decision. Examples of countries with such a regime of issuing emergency legislation are South Africa, Israel, Hungary, Canada.
Emergency legislation can give the government extensive powers, and to control it, parliament has the option of not approving or repealing such legislation.
Restrictions on rights and freedoms
One of the main measures of the state of emergency is the restriction of constitutionally guaranteed rights and freedoms. There are two ways to determine which rights and freedoms will be restricted.
Protected rights and freedoms
1. There is a list of protected rights and freedoms. They cannot be limited during a state of emergency. Instead, all other rights and freedoms can be restricted.
The list of such protected rights may differ, but there are 2 rights that protect all states. These are 1) the right to life and 2) a set of guarantees of the standard of justice, which consists in prohibiting the retroactive force of law, the right not to testify against oneself, the right to defense, access to court, the validity of accusations, etc.
Below is a table comparing the protected rights of some states.
Ukraine, as you can see, has a relatively extensive list of protected rights. Only freedom of religion and freedom of conscience, which do not belong to the protected rights in Ukraine, stand out from the general trend.
Some states introduce another level of protection of citizens’ rights. Although all rights and freedoms may be restricted except those protected, it is stated that such restrictions should not be based on race, gender, language, religion, nationality or social origin, or on any other grounds. Examples of such countries are Serbia, South Africa, Poland, Estonia, Croatia, Ukraine.
Rights and freedoms may be restricted
2. There is a list of rights and freedoms that may be restricted. We have analyzed and compiled an exhaustive list of rights and freedoms that may be limited or suspended during a state of emergency. We emphasize that any other rights and freedoms may not be restricted or suspended.
A special place among the permitted and prohibited things during a state of emergency is occupied by the issue of emergency courts. The constitutions of some countries contain provisions that explicitly prohibit the establishment of emergency courts or the use of military courts against civilians. At the same time, some countries (such as Greece, Latvia, and South Korea) allow the creation of emergency courts or the use of military courts for civilians during a state of emergency.
Exceptional emergency regimes
There is a normal, normal legal state and a state when an exception is made from ordinary norms. Such exceptional regimes are usually either 1 regime (as a state of emergency or state of siege) or 2 regimes (for example, state of emergency and state of war). 2 are usually used to respond to military and non-military threats.
Some countries have more exclusive legal regimes. These regimes may have different methods of implementation and different legal consequences.
There are 4 emergency regimes in Canada that have to deal with 4 different threats:
- A threat to public welfare.
- A threat to public order.
- International threat.
- Military threat.
In Spain, there are three such regimes:
- Threat condition. Introduced for 15 days by government decree. If the parliament does not approve it, then the state of threat does not continue.
- State of Emergency. Introduced for 30 days by government decree with the prior approval of parliament. The government determines the measures, duration, and territory to which the state of emergency will apply.
- The state of the siege. The government sends a proposal to parliament to impose a state of siege. The parliament must support this proposal by an absolute majority of votes. Parliament determines the measures, duration, conditions, and territory to which the state of siege will apply.
There are 4 modes in Chile:
- Status of readiness.
- Exception status. Announced by the president for 15 days. Continuation of the exemption requires approval by Congress. Freedom of movement and freedom of assembly may be restricted.
- Disaster condition. Announced by the President. Congress has the right to cancel it in 180 days. The zones in which the declared state of catastrophe fall under the jurisdiction of the head (chief) of national defense, appointed by the president. Freedom of movement and freedom of assembly may be restricted. Confiscation, restriction of property rights, extraordinary measures of an administrative nature may be applied.
- The state of the siege. Announced by the president in agreement with Congress. Freedom of movement may be restricted, and citizens can be arrested in their own homes or in other places separate from places of detention and prisons. The president can also declare a state of siege alone, but in that case, he can only restrict freedom of movement.
Brazil has only 2 modes, but they are quite unusual:
- State of defense. Announced by the president and approved by Congress. Lasts 30 days. Freedom of assembly, the secrecy of communication may be restricted for up to 10 days. There is also possible arrest and imprisonment without a court order.
- The state of the siege. Introduced if the state of defense cannot cope with the threat or in case of war. The government or the defense council sends a proposal to the president regarding the state of the siege, the president asks Congress to impose such a state, and Congress does so at its meeting. In addition to restrictions on the state of defense, the state of siege may require additional requisitions, the obligation to remain in certain places, the detention of citizens in buildings separate from prisoners, and the restriction of a wide range of constitutional rights and freedoms.
Thus, if a state has several exceptional legal regimes, then the methods of their implementation, their duration, the list of measures, and the list of limited rights and freedoms will differ.
Guarantees of stability
In conditions of emergency threats, when the only means to counter such threats is a state of emergency, it is important to ensure the stable functioning of key institutions for the country. After all, they are the ones who must take measures to combat threats. To this end, the legislation of most states contains provisions that ensure such stable functioning in a state of emergency. What are these guarantees?
- If the parliament is dissolved and new elections have not yet been held, it resumes its powers during a state of emergency.
- The powers of parliament and the president (if the president is elected by the citizens) do not end during the state of emergency. If his / her term of office is to expire during a state of emergency, his / her term of office shall be extended for the duration of the state of emergency or even for 2-3 months after its end.
- If the parliament is not in a state of the session, then during the state of emergency, it convenes for an extraordinary session and works in session mode throughout the state of emergency.
- Parliament cannot be dissolved during a state of emergency.
- Elections (mainly parliamentary and presidential) are not held during a state of emergency. They are postponed either for the entire duration of the state of emergency or even for 1-2 months after the state of emergency.
- If a country has a practice of holding referendums, the issue of imposing or ending a state of emergency is prohibited from being put to a referendum. Referendums are not held during a state of emergency.
- Amendments to fundamental laws are forbidden during a state of emergency. This applies to the Constitution and the law on the state of emergency if a separate law regulates the issues of the state of emergency. Some countries also prohibit amendments to some other laws during a state of emergency, such as the election law or the referendum law.
Therefore, the guarantees of stable functioning of key institutions during a state of emergency are a ban on changing the main “rules of the game” – the Constitution and the provisions that ensure the stability of the government, which should deal with the elimination of threats.
Parliamentary oversight and control of the executive
A state of emergency is considered a dangerous measure for democracy. It has often been used throughout history to establish a dictatorship. To prevent the abuse of extraordinary powers, the legislation of some countries contains provisions on parliamentary oversight. In addition to preventing usurpation, parliamentary oversight aims to control even “minor” threats, such as local “excesses” of the executive branch.
In the vast majority of countries analyzed, parliament must be in a state of the session. It cannot be dissolved. It has the power to declare a state of emergency (or emergency legislation), cancel it early, or not extend it, or impose a state of emergency on its own. Such provisions are aimed at counteracting the usurpation of power.
The Portuguese Constitution stipulates that parliament oversees the implementation of a state of emergency throughout the state of emergency.
In Peru, during a state of emergency, the president must constantly report to parliament on his activities.
In Israel, all emergency regulations (emergency legislation) passed by the executive must be immediately submitted to parliamentary committees.
In Hungary, the president must inform the speaker of parliament of any emergency regulations issued.
In Brazil, during a state of emergency, a committee is set up to monitor the implementation of both defense and siege states. After the defense or siege state is over, the president reports to Congress.
In addition to parliamentary, there is judicial control of the executive branch. For example, in Slovakia, a constitutional court may rule on the unconstitutionality of a state of emergency or specific emergency measures. And in Chile, if the president declares a state of siege without the consent of Congress, his actions may be the subject of a judicial tribunal.