Constitutional and legal regulation of emergencies in Democracies
Abstract for the MINERVA-Conference March 2016
Each jurisdiction faces several key decisions regarding the regulation of emergency powers in extreme conditions, both in terms of the institutional design and in terms of the substantive law. For example, each jurisdiction must decide whether, or to what extent, to include emergency powers in its constitution, and if so, whether to allow for the derogation of rights during emergencies (and which rights), whether to suspend other elements of “ordinary” law or the “ordinary” division of powers between the government and the legislature, and whether to exclude some matters from judicial review (at least during the emergency). Similarly, each jurisdiction must decide how to define an emergency, whether to distinguish between types of emergencies, and which institution(s) is (are) empowered to declare an emergency (and its conclusion). In the same vein countries must consider whether to empower local government to exercise emergency powers (and if so, which, under which circumstances, and whether such powers may be overridden by the central government), as well as whether to establish one single governmental agency to deal for emergencies, and if so, whether that agency deals with preparedness and mitigation, immediate response and/or recovery and compensation. Substantively, a set of questions regarding the content of the laws that address natural disasters, armed conflicts and social and economic crises is also informative regarding the manner in which each jurisdiction allocates responsibility between the state, its citizens and the non-governmental sectors (for-profit and non-for-profit) during extreme conditions, and, legally speaking, which regulatory regime applies (i.e., civil liability, criminal liability, tax liability or dividend, etc.). On a more philosophical level, the design each system adopts reflects, to an extent, its position regarding the nature of the relationship of the rule of law and extreme conditions: is law somehow suspended during an extreme condition, and the state acts by virtue of its essential power, or is an extreme condition simply a circumstance envisioned and thus contained by law, leaving no space for state action outside the law?
Preliminary research, conducted by the Minerva Center for the Study of the Rule of Law Under Extreme Conditions mapped several jurisdictions in order to identify the position of selected jurisdictions regarding several variables. Based on this research, possible regulatory models with respect to some core questions related to law under extreme conditions were identified. The research is now at a stage where two things, perhaps three, are required: first, direct input from prominent scholars in the selected jurisdictions regarding the internal view: how would each scholar classify his or her system with respect to the core questions underlying the various tentative models? Second, some reflections regarding the “law in action”. The models were sketched based on input from the law (constitutions, statutes) as written only. But if there is one thing that law under extreme conditions is most likely to produce, it is some deviation from the books. Such law in action can be ascertained from case law and/or from salient case studies where state powers were actually exercised. To the extent possible, a third front for advancing the current state of our research would include further thoughts regarding the nature and operation of law under extreme conditions, either in terms of structures (new models, which we did not consider), or in terms of theory, or in terms of outcomes (i.e., what is the possible relationship between the structures and some key elements we want to promote, such as human rights, resilience, solidarity etc.).
For that purpose, the idea was to organize a conference in which prominent jurists from the selected jurisdictions will present papers that will:
- Address core questions that underlie the various models our initial study sketched as these questions pertain to their respective jurisdictions. The core questions will be outlined by the organizers of the conference, along the lines of the questions listed in the first paragraph above and based upon our findings (the mid-resolution tables) and its analysis;
- Classify their own jurisdiction in terms of these models, and/or suggest a different model that captures their system with respect to the variables we examine;
- Address also salient examples of law in action and reflect as to whether the model that appears from the books indeed operates in action, and if not – suggest possible characteristics of the “deviations” (for example: Is there some pattern? Can we speculate about the reasons for deviations beyond the obvious? Do we have some idea regarding the outcomes of the model – what type of results it produces in terms of the purpose it was designed to achieve?).
The expected output of the conference will be an edited volume (or a special issue of journal) that addresses law under extreme conditions in a comparative perspective.