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Key Findings: Emergency Legislation

Read our key findings on emergency legislation


In exceptional circumstances, states can declare a state of emergency, which enables authorities to take exceptional actions that often bypass rights and legislative processes. PeaceRep has been working to understand relationships between states of emergency, conflict, and peacemaking. Our research explores when and how governments scale back states of emergency and what types of restraint do they put in place to counter their excessive use. These measures tell a story of the link between states of emergency and conflict, and possible pathways for removing states of emergency through confidence building.


States of Emergency (overview)

States of emergency and emergency regulations are separate, although closely related concepts in law. A state of emergency is the special legal regime of powers and rules that is brought into operation when a country is facing a grave threat, such as war, an insurgency, a natural disaster, a famine, or a virulent disease. It must be a clear and present danger to the life of the nation that cannot be adequately addressed with the normal powers and resources available to a government (Welikala, 2020).

Declaring a state of emergency allows authorities, in times of urgent necessity, to take exceptional actions in order to safeguard national security, maintain law and order, protect citizens’ lives and property, keep essential public services working, concentrate relief resources and direct them to the areas of greatest need, and in general to restore normality. At the same time, states of emergency carry significant risks, not least of human rights abuses and the normalisation of extended powers granted specifically to respond to the crisis that give rise to them (Molloy, 2020:1)

In formally democratic states that are conflict affected, often a state will retain its monopoly on the ‘legitimate use of force’, meaning that if armed groups go on ceasefire the state will reciprocate ceasefire by lifting emergency measures brought in to deal with ‘terrorism’. Peace agreements provisions relating to when, how, why and where states of emergency can be declared, are often ways of limiting the state’s recourse to violence which protects civilians, and the quid pro quo for a non-state armed group’s agreement to ceasefire (Molloy, 2020:1-2).

Constitutions often, but not always, define the situations that can trigger a legal state of emergency. Such grounds commonly include war, insurrection, threats to national security and natural disaster—and sometimes health emergencies. Some states have relied on ordinary legislation to provide the legal foundation for emergency measures, either alone or in combination with a constitutional state of emergency. In much the same way as a constitution, an act or statute can confer wide-ranging powers on the executive or specific institutions to adopt emergency measures (Molloy, 2021a:10-11).

There is no overarching explanation of why conflict-affected states in transition, or indeed any state, have adopted a particular legal approach. Decision-makers in each setting are likely to have multiple reasons, informed by the distinct histories, legal traditions, institutional strengths and structures, political ecosystem, prevalence of an emergency and perhaps even level of conflict in the country (Molloy, 2021a:14).

Our research into the enabling bases for emergency law responses suggests that different levels of oversight are associated with different models. This might explain the attractiveness of certain emergency law responses over others. For instance, a state might wish to ensure that it acts—and is perceived to act—in ways that are constitutionally sound and adhere to the rule of law. To this end, declaring a state of emergency can trigger a set of procedural constraints and oversight mechanisms that could facilitate such legitimacy (Molloy, 2021a:14).


Emergency Legislation in Transitions

The ways in which emergency powers are used can either support or hinder transitions. For instance, when executive measures are necessary, proportionate and non-discriminatory, transitions can be supported by demonstrating the government’s willingness to protect its citizens. Where decision-making is inclusive of political opponents and civil society, executive measures can be used to reflect the goals and aspirations of democratic deliberation (Molloy, 2021a:18; Molloy et. al, 2021)

However, conflict-affected states in transition often have significant fault lines: executive actions are therefore likely to cause a backlash among supporters, the opposition and non-state actors. A history of conflict can also heighten the impact of emergency measures, particularly those that involve a significant transfer of power to the centre or the military. The stage of constitutionalism and democracy will also affect the extent to which executive measures can be curtailed (Molloy, 2021a:18).

The potential to misuse or abuse emergency powers emphasizes the importance of strong institutions, such as courts. However, the institutional apparatus is often weak in conflict-affected settings in transition, providing insufficient scrutiny of the executive. In some cases, institutional oversight incapacity might be explained by the choice of legal framework. Where emergency powers are assumed outside of a constitutional or legislative framework, there is less scope for legislatures and courts to limit the activities of the executive (Molloy, 2021a:19).

Human rights protections are a central feature of transitions to both democracy and peace. Peace negotiations therefore place human rights centre stage, in part to ensuring the function of human rights as a bulwark against state and non-state actors’ excesses. Yet expanded executive powers in emergency situations can lead to human rights violations, particularly towards minorities, which is significant in contexts in which such violations are understood to have implications for the conflict landscape (Molloy, 2021a:20).

Although a common approach, securitizing the response to non-military emergencies (such as public health crises or natural disasters) can erode the quest to build constitutionalism and peace in transitioning settings. Poor governance of the security sector is often a source of conflict and a key obstacle to peacebuilding. Security forces are often the agents of state repression and have been associated with major human rights abuses. Democratization is often impossible without a transformation of the security sector’s institutions and methods of oversight and control. Security sector reform is therefore a key aspect of transitions, and a country’s use of its security apparatus must be understood in context (Molloy, 2021a:22).


Options for Risk Mitigation

Our research suggests that there are limits and gaps in existing legal frameworks. In some cases, certain types of emergencies (such as public-health crisis) are not covered in constitutional provisions on emergency response, which limits decision-makers’ options. In others, outdated legislation has been exploited to engage in an emergency response that benefits the incumbent powers (Molloy, 2021a:30).

There is an opportunity to update these legal groundings and to harmonize legal frameworks to ensure that a rule-of-law-based response can be adopted in the future. Similarly, there are opportunities to amend legislation to address the possibility that elections cannot be held, and to require electoral management bodies to take the necessary steps to plan for and mitigate the risks of future disruptions. In either case, the process of legal reform can help define the boundaries of emergency power in ways that are clear and constitutional (Molloy, 2021a:30).

The Covid-19 emergency has exposed difficulties in some situations of multi-layered governance, particularly where arrangements are complex and identity driven, and provides an opportunity to address these weaknesses. Efforts could focus on redrafting laws or clarifying constitutional arrangements on issues of overlapping jurisdiction and distribution of powers. This process should entail properly delineating responsibilities, addressing the lack of intergovernmental coordination mechanisms and institutions and their capacity, and building the capacity of sub-state entities to respond to external shocks (Molloy, 2021a:31).

Parties to negotiations can learn from the mutual and distinct challenges associated with pandemic-related states of emergency when seeking to forge peace agreements and concretize stagnated decentralization or federalization processes. The pandemic experience highlights the importance and urgency of redoubling efforts to strengthen coordination mechanisms between these stakeholders, and to enhance relevant state logistical capacities and networks to mitigate the risk that future shocks will undermine governance credibility (Molloy, 2021a:31).

Emergencies and exogenous shocks can reveal the continued existence of fault lines that, despite progress in building peace or democracy, remain—and retain the capacity to resurface as contentious, partisan conflict drivers. Renewed efforts can focus on building institutional mechanisms for reconciliation and cooperation between groups, and on entrenching, as appropriate, constitutional and other safeguards to mitigate the risk that dominant parties will unilaterally and opportunistically undermine longstanding political settlements and erode democratic conventions (Molloy, 2021a:31).

Sunset clauses are a legislative technique employed when passing emergency legislation with two primary elements: (i) limited duration and (ii) ex post evaluation. Their use aims to facilitate the necessary flexibility required to respond to emergencies through legislation, whilst at the same time preventing the normalization of exceptional measures, and reinjecting democratic deliberation and accountability through review processes (Molloy, 2021b:150).

Sunset clauses can be useful mechanism to ensure that emergency provisions do not normalize, thereby entrenching powers that can adversely affect the enjoyment of individual rights and freedoms. At times, they merge with post-legislative scrutiny, conditioning the continuation of legislation on the basis of ongoing and periodic review processes. This can ease tensions between democratic values and responses to emergencies by reinjecting democratic oversight and accountability (Molloy, 2021b:165).

However, there are limitations associated with sunset clauses. They can exist on paper, but have little impact in practice. They can be renewed on an ongoing basis, often with little or insufficient scrutiny (particularly in cases of state responses to terrorism). They can be utilized for political manoeuvring absent sincere intentions to honour the proposed sunset date (Molloy, 2021b:165).

Adherence to sunset clauses must itself be scrutinized and approached with caution. It is important to consider multiple issues: who is reviewing the legislation; who is being invited to participate; what is being examined (e.g. technical aspects, the relationship between the legislation and intended policy outcomes or the impact of emergency measures); whether it primary legislation or also secondary legislation adopted under emergency legislation; whether lessons from other contexts are part of a review; what role age, class, and gender play in the review (Molloy, 2021b:166).