How to Assess Rule-of-Law Violations in a State of Emergency? Towards a General Analytical Framework

Abstract

According to conventional wisdom, we are living in an era of constant emergencies. The subsequent crises cannot always be handled effectively within the normal legal system, so many countries have introduced some type of emergency, i.e., a special legal regime, to deal with them. However, exceptional power per se poses a threat to democracy, as those in government can use it for their own political gains, curb civil liberties, and subvert the rule of law. The article takes the principled position that emergency situations can be legally regulated, and argues that certain standards of the rule of law should not be waived even in a special legal order. The article discusses how to assess whether the exceptional power is being abused, i.e. whether it is illegitimately limiting the rule of law. For this purpose, it proposes an assessment framework whose criteria can be used in any constitutional democracy to check the legality of the extraordinary power exercised in a state of emergency. The study examines also the possible counter-arguments that could question the success of such an undertaking, and provides answers to these challenges. After that, it explains in detail the rule of law standards for the exercise of exceptional power, the separation of different emergency powers, the requirements of legality, temporariness, purpose-limitation, necessity and proportionality, and controllability, as well as those areas that are untouchable even for the extended power. The justification of these criteria also receives special attention in the study.