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Gross, Oren --- "Constitutions and Emergency Regimes" [2011] ELECD 379; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 19

Section Title: Constitutions and Emergency Regimes

Author(s): Gross, Oren

Number of pages: 22

Extract:

19. Constitutions and emergency regimes
Oren Gross



1 INTRODUCTION
A tension of `tragic dimensions' exists between democratic values and responses to violent
emergencies.1 The existence of restrictions and limitations on governmental powers is a
fundamental attribute of democratic regimes. The ideals of democracy, individual rights,
legitimacy, accountability, and the rule of law suggest that even in times of acute danger,
government is limited, both formally and substantively, in the range of activities that it may
pursue and powers that it may exercise to protect the state. Yet, constitutional arrangements
ought also to ensure sufficient powers to government so that it may meet any type of future
exigency. The question, therefore, is how to allow government sufficient discretion, flexibil-
ity, and powers to meet crises, while maintaining limitations and control over governmental
actions so as to prevent or at least minimize the danger that such powers would be abused.
While states differ in their constitutional and legal approaches to this basic conundrum, the
discourse concerning emergency regimes in democratic societies has almost invariably been
governed by `models of accommodation'.2 These models recognize that when a nation is
faced with emergencies, its legal, and even constitutional, structures may be somewhat
relaxed (and even suspended in parts). This compromise, it is suggested, enables continued
adherence to the rule of law and faithfulness to fundamental democratic values, while provid-
ing the state with adequate measures to withstand the storm wrought by the crisis.
Section 2 of this chapter outlines the contours of ...