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A state of emergency is a governmental declaration that may suspend certain normal functions of government, alert citizens to alter their normal behaviors, or 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 disorder, or following a declaration of war (in democratic countries, many call this martial law, mostly 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 or rights that may be suspended during an emergency. In many countries, it is illegal to modify the emergency law or constitution during the emergency.

Contents

Use and viewpoints

Though fairly uncommon in democracies, dictatorial regimes often declare a state of emergency that is prolonged indefinitely for the life of the regime[citation needed]. 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 criticized this idea, arguing that the mechanism of the state of emergency deprives certain people of their civil rights, producing his interpretation of homo sacer.[1]

Abuse

The state of emergency can be abused by being invoked, for example, to allow a state to suppress internal opposition without having to respect human rights. An example is Argentina (see below), where as of 2010 governments, often dictatorial, had invoked a state of emergency, often prolonged, 52 times from 1854.

Abuse becomes more difficult as nations sign up to binding international agreements such as the American Convention on Human Rights and the European Charter of Fundamental Rights.

State-of-emergency law in selected countries

Argentina

The constitution, which has been amended several times, has always allowed for a state of emergency (literally estado de sitio, state of siege), to be declared if the constitution or the authorities it creates are endangered by internal unrest or foreign attack. This provision was much abused during dictatorships, with long-lasting states of siege giving the government a free hand to suppress opposition (as of 2010 a state of emergency had been declared 52 times by democratic and dictatorial governments, starting in 1854 shortly after the constitution came into force[2]). The American Convention on Human Rights (Pacto de San José de Costa Rica), adopted in 1969 but only ratified by Argentina in 1984 immediately after the end of the military dictatorship, restricts abuse of the state of emergency by requiring any signatory nation declaring such a state to inform the other signatories of its circumstances and duration, and what rights are affected.

Australia

State-of-emergency legislation differs in each state of Australia.

In Victoria, the premier 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. Under the Public Safety Preservation Act, a declared state of emergency allows the premier to immediately make any desired regulations to secure public order and safety. 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).

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, unless extended by the Governor-in-Council.[3] There are different levels of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency, and War Emergency.[4] The Emergencies Act replaced the War Measures Act in 1988. The War Measures Act was 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.[5]

Denmark

The police chief in a district can impose a zone in which people can be body searched without a specific suspicion. Such an order must be issued in writing, published, and imposed for a limited period. The police law (article 6) regulates this area.[6] The normal procedure calls for assisting the suspect to a private area and stripping them.[7]

If the police feel that a situation involving a crowd of people can get out of hand, they can call for mass arrest of all people in an area and detain them for six hours without charging them. This is called a precluding arrest.

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.[8] 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.[9]

France

Three main dispositions concern various kind of "state of emergency" in France: article 16 of the Constitution of 1958 allows, in time of crisis, "extraordinary powers" to the president. Article 36 of the same constitution regulates "state of siege." Finally, the April 3, 1955 Act allows the proclamation, by the Council of Ministers, of the "state of emergency" (état d'urgence).[10] The distinction between article 16 and the 1955 Act concerns mainly the distribution of powers: whereas in article 16, the executive power basically suspend the regular procedures of the Republic, the 1955 Act permits a twelve-day state of emergency, after which a new law extending the emergency must be voted by the Parliament. These dispositions have been used at various times, in 1955, 1958, 1961, 1988 and 2005 (see below).

The state of emergency in France is framed by the Constitution of 1958, which states that it can be decreed by the Président de la république in the Council of Ministers, but must 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 (including by the use of curfew)
  • Close places of gathering
  • Conduct house-to-house searches at any time 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, however, how some of the legal possibilities can be implemented due to various legal changes since the 1950s.

Article 16 of the Constitution gives the head of government "extraordinary powers" in exceptional cases, leading to an effective "state of exception":

When the institutions of the Republic, the independence of the nation, the integrity of its territory, or the fulfillment of its international commitments are under grave and immediate threat and when the proper functioning of the constitutional governmental authorities is interrupted, the President of the Republic shall take the measures demanded by these circumstances after official consultation with the Prime Minister, the Presidents of the Assemblies, and the Constitutional Council.
He shall inform the nation of these measures by a message.

These measures must be prompted by a will to ensure within the shortest possible time that the constitutional governmental authorities have the means of fulfilling their duties. The Constitutional Council shall be consulted with regard to such measures.
Parliament shall meet ipso jure.
The National Assembly may not be dissolved during the exercise of emergency powers.

The conditions are both that the state is confronted to exceptional circumstances and that the regular institutions are disrupted and cannot effectively govern.[11] This amendment to the Constitution of the Fifth Republic has been qualified as "liberticide" by critics.[11] Invoked on 23 April 1961 during the Algerian War; normal functioning of institutions was quickly restored.[11]

In the judgment Rubin de Servens of March 2, 1962, the Conseil d'État judged that he could not himself invoke article 16, as that constituted an "act of government". Furthermore, the State Council considered that it could only pronounce on rulings which were not legislative acts carried out during this period. Thus, a legislative measure (although the role of Parliament is not specified, just that it is not to be dissolved) which breaches fundamental liberties cannot be appealed against before the Conseil d'État.[11]

Article 36 of the Constitution is concerned with the state of siege, which can be decreed by the Council of Ministers for a period of twelve days which can only be extended with the approval of the Parliament. A state of siege may be declared in case of an "imminent peril resulting from a foreign war [guerre étrangère, or simply "war"] or an armed insurrection (une insurrection à main armée).[12] Military authorities may take police powers if they judge it necessary. Fundamental liberties may be restricted, such as the right of association, legalization of searches in private places day and night, the power to expel people who have been condemned for common law matters or people who do not have the right of residence in the territory, etc.

Since 1955 a state of emergency has been decreed five times:

  • In 1955 in Algeria due to independentist unrest
  • In 1958 due to the uprising in Algeria
  • In 1961 after the Generals' putsch (invocation of article 16 from April 23 to September 29, 1961[11])
  • 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 November 8, 2005. It was extended for three months on November 16 by the Parliament, which was 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 (which began on October 27), the rapid spread of violence, and the possibility that it could recur justified the state of emergency. The complaint challenged the state of emergency's necessity and said it compromised fundamental liberties.[13][14][15]

In 1972 the Common Program of the Left (issued from an alliance between the Socialist Party and the Communist Party) proposed to repeal article 16. François Mitterrand's program in 1981 did not include this proposition. The Socialist government of Pierre Bérégovoy included a reform of this article in its project of Constitutional reform in 1992, but the project was not implemented. Also in 1992, the Vedel Commission created by François Mitterrand proposed to give to the Conseil Constitutionnel (Constitutional Council), on the concerted initiative of the President of the Republic and the presidents of the Assemblies, the mission to determine that the conditions required for the use of article 16 were in fact met.[11]

On July 23, 2008 a constitutional act was passed which, among other amendments, added a paragraph to article 16 of the Constitution[16] which stated that after 30 days the Constitutional Council can be requested to determine whether the conditions that justified the use of article 16 are still current; the ruling is public. At any time beyond 60 days the Council rules on this issue without the need for a referral.

Germany

The Weimar Republic constitution allowed states of emergency under Article 48 to deal with rebellions. Article 48 was often invoked 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, an 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: the Weimar Constitution was never actually repealed by Nazi Germany, but "indefinitely suspended". After the prohibition of the Communist Party of Germany on March 1, 1933 the NSDAP (Nazi Party) had hands free to vote in 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 implemented the Gleichschaltung, the Nazis' institution of totalitarianism.

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

Hong Kong

The Standing Committee of the National People's Congress can declare a state of emergency and deploy troops from the Hong Kong Garrison under the Law of the People's Republic of China on the garrisoning of the Hong Kong Special Administrative Region.

The Chief Executive of Hong Kong along with the Executive Council can prohibit public gatherings, issue curfew orders, prohibit the movement of vessels or aircraft and appoint special constable all under Chapter 245 ("Public Order Ordinance") of Hong Kong Law.

Hungary

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

During state of emergency, the Parliament cannot be disbanded.

India

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

In 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. Political opposition was heavily suppressed during the emergency. Civil liberties were suspended and a mandatory birth control program was introduced by the government. Confident about her chances of getting re-elected, Indira Gandhi relaxed the emergency and released dissidents. She then was trounced by a grand coalition in the 1977 elections.

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 (The period was and is referred to as The Emergency in Ireland). This state of emergency was not technically lifted until 1972, and was succeeded by a second state of emergency to deal with the Troubles in Northern Ireland, which lasted until the IRA ceasefire in 1994.

Malaysia

In Malaysia, if the Yang di-Pertuan Agong is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the Federation or any part thereof is threatened, he may issue a Proclamation of Emergency making therein a declaration to that effect.[17]

In the history of Malaysia, a state of emergency was declared by the then-colonial government of Britain. The state of emergency lasted from 1948 until 1960 to deal with the communists led by Chin Peng.

Thiery Rommel, the European Commission's envoy to Malaysia, told Reuters by telephone on November 13, 2007 (the last day of his mission) that, "Today, this country still lives under (a state of) emergency."[18] Although not officially proclaimed as a state of emergency, the Emergency Ordinance and the Internal Security Act had allowed detention for years without trial.

New Zealand

The government and local city council may, at some stages, issue a state of emergency through the region. This may suspend ordinary work and essential services if need be. The state of emergency in New Zealand does not have an expiry date. However, the acting prime minister or local mayor may lift the state of emergency after an initial review of the region's status.

Pakistan

In Pakistan, a state of emergency was declared four times in its history:

The first three were regarded as the imposition of direct martial law. In 2007 a 'state of emergency' was declared. However there is little practical difference between martial law and a state of emergency if the government controls the armed forces.

See International reaction to the 2007 Pakistani state of emergency.

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).

Turkey

Since the foundation of the Republic of Turkey in 1923 the military conducted three Coup d'états and announced martial law. Martial law between 1978 and 1983 was replaced by a state of emergency that lasted until November 2002.

United Kingdom

In the United Kingdom, the Monarch, the Privy Council, or the Prime Minister can make emergency regulations under the Civil Contingencies Act 2004 if there is a serious threat to human welfare, the environment, or in case of war or terrorism. These regulations last for seven days unless confirmed otherwise by Parliament. However, as there are no entrenched constitutional provisions, Parliament can pass restrictive legislation limited only by international treaties and public outrage.

A state of emergency was last invoked in 1974 by Prime Minister Edward Heath in response to increasing industrial action.

United States

In the United States, there are several methods for government response to emergency situations. A state governor or local mayor may declare a state of emergency within his or her jurisdiction. This is common at the state level in response to natural disasters.

The president of the United States, as head of the executive branch, has the authority to declare a federal state of emergency. The only emergency provisions in the U.S. Constitution are:[19] "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."[20] and 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".

Habeas corpus was suspended on April 27, 1861 during the American Civil War by Abraham Lincoln in parts of Maryland and some midwestern states, including southern Indiana. He did so in response to demands by generals to set up military courts to rein in "copperheads", those in the Union who supported the Confederate cause. Lambdin P. 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 only provided for suspension of habeas corpus if these courts are actually forced closed.

On December 16, 1950, during the Korean War, President Truman issued Presidential Proclamation No. 2914,[21] declaring a state of national emergency[22]. The Supreme Court ruling in Youngstown Sheet & Tube Co. v. Sawyer established in 1952 during this emergency that presidents may not act contrary to Acts of Congress during an emergency.

During the Watergate scandal which erupted in the 1970s after president Richard Nixon allowed illegal actions, Congress investigated the extent of the President's powers and belatedly realized that the U.S. had been in a continuous state of emergency since 1950. As a result, in 1976 the National Emergencies Act set a limit of two years on emergency declarations unless the president explicitly extends them, and requiring the president to specify in advance which legal provisions will be invoked. The Act terminated the emergency of 1950 on September 14, 1978[23]; however, even in the 21st century, the federal courts have upheld harsh penalties (including deportation) for crimes that occurred during the state of national emergency from 1950 to 1978, where the penalties were escalated because of the existence of that emergency.[21]

The 1977 International Emergency Economic Powers Act allows freezing of assets, limiting of trade, and confiscation of property during a declared emergency.

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. 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 United States is formally in an ongoing (and effectively permanent[citation needed]) limited state of emergency declared by several Presidents for several reasons. A state of emergency began on January 24, 1995 with the signing of Executive Order 12947 by President Bill Clinton. In accordance with the National Emergencies Act, the executive order's actual effect was not a declaration of a general emergency, but a limited embargo on trade with "Terrorists Who Threaten To Disrupt the Middle East Peace Process".[24] This "national emergency" was expanded in 1998 to include additional targets such as Osama bin Laden,[25] and has been continued to at least 2008 by order of President George W. Bush.[26] There are a number of other ongoing national emergencies of this type, referenced at [1] and [2], regarding for instance diamond trade with Sierra Leone. Especially noteworthy are the ongoing states of emergency declared on November 14, 1979 regarding the Iran Hostage Crisis.[27], that declared on March 15, 1995 with respect to Iran,[28] and that declared on September 14, 2001 through Bush's Proclamation 7463, regarding the terrorist attacks of September 11, 2001.[29]

President Barack Obama declared on 24 Oct 2009 a National Emergency for Swine Flu, aiming to increase abilities for hospitals and medical centers to handle "swine flu" cases, responding to CDC reports stating that swine flu has become widespread in 46 of 50 U.S. states.

Examples

Ongoing

Past states of emergency

See also

Notes

  1. ^ Agamben 2005
  2. ^ State of emergency in Argentina and other Spanish-speaking countries (in Spanish)
  3. ^ Emergencies Act
  4. ^ Emergencies Act
  5. ^ State of Emergency FAQ
  6. ^ The Danish police law - law number 444 of June 9, 2004
  7. ^ Politi: De unge klager over racistiske betjente (The police: Youth complain over racist cops), by Andreas Lindqvist, Politiken, February 18, 2008
  8. ^ http://conconflicts.ssrc.org/mideast/shehata/pf/
  9. ^ Al-Ahram Weekly | Egypt | Enough is still enough
  10. ^ Loi n°55-385 du 3 avril 1955 instituant un état d'urgence et en déclarant l'application en Algérie
  11. ^ a b c d e f Les pouvoirs exceptionnels du président, official governmental website (French)
  12. ^ La mise en oeuvre de l'état d'urgence (French)
  13. ^ http://news.scotsman.com/latest.cfm?id=2381422005
  14. ^ Indymedia Paris Île-de-France - Etat d'urgence justifié pour le ministère de l'Intérieur
  15. ^ Le Conseil d'Etat refuse de suspendre l'état d'urgence - LeMonde.fr
  16. ^ [http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=20080724&numTexte=2&pageDebut=11890&pageFin=11895 Loi constitutionnelle no 2008-724 du 23 juillet 2008 de modernisation des institutions de la Ve République], article 6
  17. ^ Clause 1(A), Article 150, Constitution of Malaysia
  18. ^ Malaysia lives under state of emergency - EU envoy | World | Reuters
  19. ^ V. Article of Amendment to the Constitution of the United States, as encoded in United States Statutes at Large (Washington, D.C.: Government Printing Office, 1874), p. 21 (of 755). Retrieved from Memory.LOC.gov 16:06, 4 July 2008 (UTC).
  20. ^ Constitution of the United States, Article I, Section 9, as encoded in United States Statutes at Large (Washington, D.C.: Government Printing Office, 1874), p. 15 (of 755). Retrieved from Memory.LOC.gov 16:02, 4 July 2008 (UTC);
  21. ^ a b c Espinoza-Castro v. I.N.S., 242 F.3d 1181, 30 (2001).
  22. ^ Presidential Proclamation No. 2914, 3 C.F.R. 99 (1953)
  23. ^ See 50 U.S.C. S 1601 ("All powers and authorities possessed by the President, any other officer or employee of the Federal Government, or any executive agency . . . as a result of the existence of any declaration of national emergency in effect on September 14, 1976 are terminated two years from September 14, 1976."); Jolley v. INS, 441 F.2d 1245, 1255 n.17 (5th Cir. 1971) (noting that Presidential Proclamation No. 2914 declared a state of national emergency and that this state of national emergency still existed in 1967).
  24. ^ MILNET: Executive Order 12947
  25. ^ William J. Clinton: Executive Order 13099 - Prohibiting Transactions With Terrorists Who Threaten To Disrupt the Middle East Peace Process
  26. ^ Notice: Continuation of the National Emergency With Respect to Terrorists Who Threaten to Disrupt the Middle East Peace Process
  27. ^ Notice: Continuation of the National Emergency with Respect to Iran
  28. ^ Notice: Continuation of the National Emergency with Respect to Iran
  29. ^ Notice: Continuation of the National Emergency with Respect to Certain Terrorist Attacks
  30. ^ Obama declares swine flu a national emergency - Yahoo! News
  31. ^ OMB Search
  32. ^ Executive Order
  33. ^ BBC NEWS | Middle East | Syria to ease state of emergency
  34. ^ REUTERS UK | Southeast Asia | Thai protesters force Asia summit cancellation
  35. ^ Thai govt declares state of emergency in Bangkok. Reuters. April 12, 2009
  36. ^ "Mongolia under state of emergency", Al Jazeera, July 2, 2008.
  37. ^ http://en.wikinews.org/wiki/Armenian_President_Kocharyan_declares_state_of_emergency
  38. ^ Greece declares state of emergency as toll soars in forest fires - International Herald Tribune
  39. ^ Kcbs - *
  40. ^ Trinidad House Speaker Put Under House Arrest

References

  • Agamben, Giorgio (2005), State of Exception, Chicago: University of Chicago Press, ISBN 978-0226009254 . Excerpt online: "A Brief History of the State of Exception".
  • Barzilai, Gad (1996), Wars, Internal Conflicts, and Political Order, Albany: State University of New York Press, ISBN 0-7914-2943-1 .
  • Walter Benjamin, Zur Kritik der Gewalt ("Critique of Violence")
  • Carl Schmitt, The Dictature and Political Theology
  • Conradin Wolf, Ausnahmezustand und Menschenrecht (2005)

External links








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