Balkinization: States of Emergency as a Script for Undermining Constitutional Government

States of Emergency as a Script for Undermining Constitutional Government

Guest Blogger

This post was prepared for a roundtable on Constitutional Crises, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Kim Lane Scheppele

Emergencies in practice do not tend to look like the states of “no law” or “legal suspension” imagined by most theorists of emergency. Instead of being suspended and preserved during an emergency, normal rules are typically altered by the existence, particularly the persistent existence, of threats (real or imaginary), but law is not abandoned. Rather the reverse. Crises are typically times when law is produced is immense quantities because if a leader wants a state to suddenly shift course, the state has to be given new operating instructions—and those instructions typically come in the form of law. As a result, actually existing emergencies actually require law and cannot do without it.

Moreover, emergencies don’t tend to happen suddenly or end very neatly, in a way that would permit a switch to be flipped to emergency status at the start and then turned off again when the crisis is over. Even when a threat emerges suddenly, emergency powers are typically rolled out over weeks or months or even years. And even when a threat ends suddenly (which most threats don’t), emergency measures tend to persist long after the threat that triggered them has disappeared.

If emergencies are not sudden events that suspend law, with a restoration to normal law at the end, then how do they work? To get at the dynamics of emergencies in actually existing law, I analyzed the series of case studies prepared by the International Commission of Jurists (ICJ) in the early 1980s. The case studies provide particularly good materials to work with because the teams of expert authors who worked on documenting the details of emergency governance in each country were instructed to note not only what happened on the ground during these emergencies, but also what legal authority was invoked for the use of crisis powers. We can therefore analyze these emergency governments not only by seeing what they did, but also by examining the legal infrastructures that were built up to respond to the crisis that leaders claimed they were handling at the time.

What these case studies tell is us that most emergencies tend to follow a common trajectory, no matter what their initial trigger. This common trajectory is what I call the “emergency script.” What follows are the key stages of that script, presented here in the abstract without the voluminous evidence from the case studies.

EXECUTIVE CENTRALIZATION: In the first step of the “emergency script,” power is centralized in the executive. But this does not mean that executives typically grab power away from parliaments and courts in one obvious move. Instead, emergencies can occur when parliaments are already ineffective, weakened or self-destructed. Alternatively, functioning parliaments may simply give extraordinary stand-by powers to the executive through ordinary legislation, powers that may be invoked when the executive deems it necessary. Sometimes, if all else fails, executives may dissolve or prorogue parliaments. But often, parliaments have been weakened long before emergency powers set in.

Executives in emergencies generally neutralize or bypass courts as well. They do this by creating special emergency courts or curtailing the jurisdiction of the ordinary courts. Sometimes, decisions by the ordinary courts are simply ignored. Sometimes courts marginalize themselves by refusing to rule on whether there is an emergency in the first place or by being highly deferential to government claims when they do.

While there are occasionally abrupt takeovers of power by executives in emergencies, more typically the other branches of government collude in their own marginalization or fail to act decisively to constrain executive centralization. Often, this weakening of non-executive government takes place over a long period of time so that a crisis simply completes the process that had been going on for other reasons before the crisis began. When other branches are already weak, they are particularly ineffective at actually participating in the formal checking of emergency powers.

MILITARIZATION: Once the other branches have been marginalized enough for the executive to operate alone, the next step in the emergency script involves the militarization of the use of executive power. This is often not hard, as most states make the executive the commander-in-chief of the military and require the intelligence services to report primarily to the executive even in non-emergency times. Sometimes, of course, the military itself just takes over and hijacks a weakened executive branch, making itself the strong executive. That’s a common pattern in a coup. Whatever its official role, however, the military generally comes to the fore in crises, carrying out normally civilian tasks like detaining suspects or participating in maintaining order along with (or in substitution for) ordinary police. Sometimes, martial law is declared so that normal law is displaced by military law over a large range of subjects. The crucial element of this step in the emergency script is that the military starts to perform functions customarily reserved to civilians, which in addition has the effect of bolstering executive power.

PROCEDURAL SHORTCUTS: Once power is firmly in the hands of the executive and the military has been positioned as the key responder to the threat, the next casualty is robust legal procedure. Crises may be managed through executive or military orders rather than ordinary legislation, but these orders have the force of law. Sometimes new bodies of state (military councils, emergency committees, subsets of the parliament) are created to govern with the executive. Old bodies of state (inspectors general, independent audit offices, electoral commissions, administrative courts) that used provide meaningful procedural checks are bypassed or neutralized. Habeas review is literally or functionally suspended. Property can be frozen, searched, seized or destroyed without any legal process. Criminal procedure is often singled out for special adjustment in times of crisis. Investigations of alleged crimes may be carried out with summary procedures. The requirement to provide evidence of individualized suspicion before someone is detained or tried is relaxed. The burden of proof may be lessened for the state or put onto suspects entirely. Those acquitted by courts may continue to be detained. Harsh punishments, including death sentences, may be carried out immediately after sentencing, often without appeal. The crucial element of this step in the emergency script is that summary legal procedure replaces more procedurally exacting norms.

PUTTING PEOPLE IN THEIR PLACES: With formal procedure weakened, emergency governments then “put people in their places.” This has two faces: setting up regimes of preventive detention, which functionally requires the presence of certain people in certain places, and simultaneously banning demonstrations, assemblies and associations, which functionally requires the absence of certain people from certain other places. Perhaps the signature element of emergency governance is its reliance on administrative detention, but close behind are curfews, restrictions on group meetings and restriction of access to symbolic sites for protest. In general, the “usual suspects” are eliminated from public space. People may be “disappeared,” even in huge numbers.

INVERSION OF SPEECH PROTECTION: Along with these measures, the legal regime that applies to speech is inverted. Some speech, formerly protected, is criminalized as a threat or reclassified as an action—for example, as sedition or incitement. Newspapers are closed, nationalized or licensed. Censorship is instituted. Communication with certain named individuals or groups is criminalized. At the same time, other speech, formerly protected under a right to remain silent, becomes mandatory. Interrogation will not stop without confessions, sometimes achieved under torture. Police require those who know about conspiracies and crimes to disclose them under pain of penalty.

REVERSAL OF TRANSPARENCY: At this point in the emergency script, the transparency that exists in public life is reversed. During crises, it becomes harder for citizens to see what government is doing because government is blanketed in secrecy. Some legal decrees are simply secret as are detentions or even trials. The officials authorizing state action may be anonymous. At the same time, however, the surveillance of those who are resident in the territory increases; people become more transparent to the state. Secret police carry out investigations with few legal restraints. Homes are searched; surveillance is increased; secret correspondence is breached. The signature element of emergencies is that the government becomes less visible to its citizens just when citizens become more visible to the government.

ANTICIPATORY VIOLENCE: Eventually, states that have taken many of these steps may turn to the deployment of anticipatory violence. They have or will soon attack us, claims the government; we must attack them in response. Full-blown emergencies in their later stages typically deploy violence against real or imagined opponents even before the threatened violence by others emerges. Plots are rooted out and plotters are tried before military tribunals. Hidden “fifth columns” are blamed for the vulnerability and weakness of the state, and the strength of the state is marked by its ability to locate and destroy the enemies within. Often, the violence deployed is disproportionate to the threat and is used against a much broader segment of the population than actually challenges the existing government. In the end, jails hold thousands detained without trials. The targeted enemies may be expelled from the territory, or even murdered in large numbers.

LINGERING POWERS: In the end, emergency powers often last well beyond the threat that called them into being. It is not at all unusual for laws promulgated during crises to become permanent as a government emerges from a crisis, or to be redeployed for the next crisis without ever having been repealed. For example, emergency laws from colonial Ghana were used for the emergency declared upon independence in 1957. Emergency laws written in Greece for the 1946-1950 emergency were used in 1967 even though they were inconsistent with the constitution written in the meantime. Special powers authorized in India for the 1965 emergency were used in the 1975 emergency which had a very different cause. The state of emergency declared in Argentina in 1974 to deal with a serious military threat was used to legitimate the coup of 1976. The Colombian parliament in 1962 adopted as permanent all of the temporary emergency decrees issued from 1949 to 1958. Through these legacy laws, emergency government becomes normal government. The threat may have vanished but emergency laws remain.

Given all of this, how should we understand emergencies? I would argue that an emergency is not a temporary response to a specific crisis, but instead that form of government that follows the emergency script. Taking this seriously, we can imagine that emergencies should be defined not so much by their formal properties (e.g. spaces with “no law,” crises with defined beginnings and ends) but instead by their substantive characteristics—executive centralization, deployment of the military, cutbacks in all other institutions that can put up resistance to the executive while curtailing accountability of that executive, opaqueness of government while individual rights go by the wayside and eventually anticipatory violence and the entrenchment of the emergency. A theory of emergency powers should therefore be a theory of a specific form of government—one in which separation of powers and individual rights have been limited, while the executive consolidates control over a monopoly of violence through the use of the military and security services. Regardless of whether this sort of government calls itself an emergency government or an authoritarian one, and regardless of whether this sort of government proceeds by rules specified in a constitution or whether it sets a constitution aside under special emergency provisions, states of emergency may be seen as substantively distinctive forms of government shot through with law all the way down.

Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Center for Human Values at Princeton University. You can contact her at kimlane@princeton.edu.

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