The Derogation in Time of Public Emergency
Fang Xiang
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Abstract: A modern government must face up to the problem of crisis handling.
When developing to a certain degree, the crisis may become state of emergency. In state of
emergency, the government needs to make use of law rules other than general constitutional
order in the administration. From the point of view of law, the article discusses the most
important government powers and relevant legal norms in state of emergency. Based on the
theory of emergency power and emergency power loss, the article acknowledges the
necessity of the administrative emergency power, but maintains that the power shall be
regulated to ensure the citizens have the minimum guarantee rights.
Keyword：State of emergency
Emergency power
Restriction of right
The modern society is faced with all sorts of crises：Warfare, social turbulences,
natural disasters, energy crisis, public health emergency, malign criminal cases, and so on.
For example, the 911 Terrorist Attack, the North America Blackout, SARS, Asian bird flu.
Crisis events have become inevitable problems in social administration and life. The
efficient solution of crises is a major challenge for governments around the world. In the
author's opinion, the recognition of state of emergency shall be a variable process and the
crisis itself is hierarchical. The state of emergency is just a small part of the crisis status.
The scope of the state of emergency shall be strictly restricted legally. The crisis status shall
not be regarded simply the same as the state of emergency.
In the author's opinion, the state of emergency means an occurent or imminent
dangerous state of affairs that endangers the normal constitutional and legal order of a state
and severely threatens the safety of the people's life and property. The state of emergency is
a constitutional concept, which means an exceptional case of the society in the
constitutional order, and enables a power operation system and a power protection system
apart from the constitutional power arrangement. The state of emergency is also a concept
of law, which means an exceptional case in the normal legal order, and adopts a special
system of law beyond the legal order. Most nations in the world lay stress on the
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Director of Research Department, China Law Society
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establishment of a basic national state of emergency system to protect citizens' fundamental
rights stipulated by the constitution; the establishment of an effective emergency reaction
mechanism through endowing state organs with necessary emergency powers in order to
promptly restore the constitutional and legal order and ensure the safety of the people's life
and property to the maximum extent.
Provisions regarding the state of emergency can be found in relevant international
human rights conventions. These provisions are based on the protection of fundamental
human rights. For example, as stipulated in Article 4 of the International Covenant on Civil
and Political Rights, the UN General Assembly resolution of 16 December 1966:
1) In
time of public emergency which threatens the life of the nation and the existence of which
is officially proclaimed, the States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures are not inconsistent with
their other obligations under international law and do not involve discrimination solely on
the ground of race, colour, sex, language, religion or social origin. 2) No derogation from
articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision. 3)
Any State Party to the present Covenant availing itself of the right of derogation shall
immediately inform the other States Parties to the present Covenant, through the
intermediary of the Secretary-General of the United Nations, of the provisions from which
it has derogated and of the reasons by which it was actuated. A further communication shall
be made, through the same intermediary, on the date on which it terminates such derogation.
Obviously, the above provisions restrict the emergency administrative power exercised by
governments of state parties by the definition of "no derogation rights". These rights
include the right to life, free of excruciation, free of slavery, freedom of thought, conscience
and religion, etc.
In state of emergency, the primacy task of the whole society is to adopt effective
measures to control and cancel the state of emergency so as to restore normal productive
living and legal order.
The social public interests, such as national interest, national
security and collective interests shall be protected preferentially. To protect public interests
and maintain legal order preferentially, it is necessary to endow the government with the
administrative emergency powers, which, on one hand, are more authoritative and
preferential compared with the powers of the legislative organs and judicial authority; on
the other hand, the administrative emergency powers have greater authority of law than the
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civil rights stated by the constitution and law and can restrict these rights more easily than
usual.
However, the reasonable existence of the administrative emergency power shall be
legalized so that it is in line with the reason and purpose of its existence. 1, Basic
prerequisite - the real occurrence of national state of emergency;
2. Different national
emergency measures shall be adopted for different national states of emergency. Cautions
must be taken to weigh the danger level.
3. The purpose of the exercise of the
administrative emergency power: 1)To maintain the state presence; 2)To restore to the
normal state as soon as possible; 3)To try to avoid restriction on the fundamental rights.
4.
The decentralization principle shall be followed in the use of the administrative emergency
power, that is, in state of emergency, the decider, executor and supervisor of the
administrative emergency power shall belong to different state organs so as to avoid
intentional abuse of power. 5. The nature of the administrative emergency power: 1)The
last resort. Only if the general measures of the constitution have been used but failed to
prevent dangers can the emergency measures of the administrative emergency power be
adopted; 2) Temporality. Emergency measures shall not be final. The legitimacy of special
emergency measures shall be confined to the state of emergency. 6. The restrictions on
the exercise of the administrative emergency power: 1) A public proclamation shall be
made to tell what kind of state of emergency the nation is in and to what extent the people's
fundamental rights will be probably restricted. 2) Law principles shall be followed.
Emergency measures of the administrative emergency power shall be only used to maintain
the fundamental principles of the constitution rather than give rise to damages.
The above-mentioned restrictions or derogations on civil rights in state of emergency
is called emergency loss of right, or restriction of right according to academic theories.
Emergency loss of right means the loss of legal rights in state of emergency. The concept is
both interrelated with and different from the state emergency power. The emergency
power is the power of state involving emergent countermeasures exercised by entitled state
organs and their representatives. The emergency loss of right means that the state or
government suspends part or all of civil rights and freedoms authorized by the constitution
and law in order to adopt emergent countermeasures for the exercise of emergency power
in state of emergency. The emergency power is part of the public right of state, while the
emergency loss of right belongs to the category of civil rights.
The emergency loss of right which restricts or derogates a right is very necessary for
the purpose of protecting most people's safety of life and property as well as restoring the
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normal social order. As a public life principle, each community member shall play a role
in the maintenance and promotion of common benefits; and once there is any conflict
between the public interest and personal interest, the public interest shall prevail.
However, in an age when civil rights awareness is greatly enhanced, the expansion of
power and the restriction of right in state of emergency shall be well reasoned, that is, the
restriction and derogation must be explicitly stated at law.
In state of emergency, the law
is not required to blindly assure human rights to the letter. Instead, it is required to
explicitly specify at law that which rights can be derogated and the condition and procedure
of derogation, and especially, which are the fundamental rights that are free of restriction
and deprivation as well as the necessary salvation mechanism when civil rights are
restricted or confiscated.
Notwithstanding in state of emergency, citizens' fundamental rights are inevitably
subject to more stringent restrictions than usual, including the prohibition of migration, exit
from country, assembly, parade and restrictions on personal freedom or property freedom,
etc.; For example, as stipulated in Article 48 of the German Weimar Constitution in 1919,
when martial law is proclaimed, the President may declare to suspend part of the
fundamental rights of citizens; as stated in Clause 1, Article 55 of the Spanish Constitution,
when state of emergency is declared according to law, part of the civil rights prescribed in
the constitution may be suspended;
However, as the restriction measures for civil rights
might be abused by state organs, the law sometimes sets up the minimum standard for
assurance of human rights. For example, as stated in Article 55, Clause 3 of the Spanish
Constitution, human dignity, academic freedom, family privacy and right to education, etc.
shall not be deprived or restricted. It is also prescribed that abusive use of the powers shall
give rise to criminal liability."
Therefore，it has become a difficult social problem that
how to protect civil rights in state of emergency.
The difficulty lies in the marking of the
rational limit between the extensive devolution of powers and improper violation of civil
rights as well as the formulation of some basic norms.
As stated above, either the exercise of the emergency power or the appearance of
emergency loss of right occurs in state of emergency. To a certain extent, emergency loss of
right is an offspring of the emergency power. As the emergency loss of right is directly
related to citizens' personal and property rights, the legislations of nations in the world are
generally cautious about the restriction on these rights. Major legislation modes include:
abstract restriction; exceptional provisions on right protection; no prohibition unless in
exceptional cases; emergent release of general legal restrictions; direct prohibition of rights,
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etc. Considering the background of China's statute law, the abstract restriction mode is not
recommended; in the author's opinion, the following mode, that is, ensuring fundamental
rights, specifying key rights, and abstractly prescribing general rights,
may be adopted to
make sure that the rights involved in the exercise of the emergency power can be brought
under the law.
The author considers, the law authorizes the government to obtain some necessary
special powers in state of emergency, but that does not mean the proportion between the
power of state and civil rights at that time can be fully balanced. To keep a rational
proportion to the maximum extent between them in state of emergency, the state need to
resort to legal means to make clear the relation between powers and rights in state of
emergency. One of the means is to formulate relevant provisions that civil rights can only
be restricted to a certain extent in state of emergency. The Emergency Law must
explicitly prescribe what restrictions can be made on civil rights, the bottom line for
minimum right protection and the channels through which citizens may obtain salvation; at
the same time, the principle of minimum loss of civil rights in state of emergency shall be
also prescribed to ensure that the government does not derogate human rights in
emergency period and civil rights are protected to the maximum extent. To strengthen the
protection of civil rights in state of emergency, it is important to bring legislation on state
of emergency and include it into the legal system. The legislation mainly solves the
legitimacy problem of extensive government empowers in time of emergency and
formulates specific provisions on the purpose and scope of the authorization as well as the
procedure of exercising emergency powers. Even if in extreme emergency, the exercise of
emergency powers shall be also under bottommost constraint. The regulation and restriction
on the government powers is the basis for protection of civil rights.
The purpose of the legislation on state of emergency is to solve the problem about the
limit between special powers for the government and the basic protection and salvation for
civil rights. Furthermore, the fundamental rights and dignity of individuals in state of
emergency shall be ensured. The Emergency Law shall prescribe liabilities of the
government and its personnel for delinquency behaviors, abuse of power and misbehaviors
of emergency measures so that the empowered organs can exercise the special power by
rights.
The author maintains that when the law authorizes the government to exercise the
administrative emergency power, it must first determine fundamental civil rights which
shall not be derogated.
As stipulated in Article 4 of UN International Covenant on Civil
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and Political Rights: In time of public emergency which threatens the life of the nation and
the existence of which is officially proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations under the present Covenant to the
extent strictly required by the exigencies of the situation, provided that such measures are
not inconsistent with their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language, religion or social origin.
According to the Covenant, the following civil rights shall not be derogated: right to life,
not subject to torture, not subject to slavery, no one shall be imprisoned merely on the
ground of inability to fulfill a contractual obligation, not subject to retroactivity, everyone
shall have the right to recognition everywhere as a person before the law, and the right to
freedom of thought, conscience and religion is inviolable.
According to the human rights covenant, in state of emergency, the government may
restrict and derogate the following civil rights: personal freedom, right to liberty of
movement, right to freedom of expression, right of peaceful assembly and the right to
freedom of association, right to take part in the conduct of public affairs, an alien may be
expelled, some accommodation for criminal justice, privacy, family, home and
correspondence may be restricted, etc.
Any State Party to the present Covenant availing itself of the right of derogation shall
immediately inform the other States Parties to the present Covenant, through the
intermediary of the Secretary-General of the United Nations, of the provisions from which
it has derogated and of the reasons by which it was actuated. A further communication shall
be made, through the same intermediary, on the date on which it terminates such
derogation.
China has signed the Covenant. Although it has not been approved yet, the Covenant
shall be our referential principle in legislation and practice when we study the protection of
civil rights in state of emergency.
To protect civil rights in state of emergency, in addition to marking out the bottom
line for the protection of civil rights, the necessary measures and ways adopted when civil
rights are violated in state of emergency shall be also determined. The salvation measures
for civil rights in normal state shall remain available in state of emergency, except that the
procedure can be simplified. As for the compensation for violation made by the government
and other individuals, the alleviation of their liabilities in particular cases shall be
considered.
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In the author's opinion, the Emergency Law of China may prescribe the following
institutional arrangements according to relevant provisions of the constitution. Firstly, the
scope and limit of the emergency power of the government shall be determined by the
Emergency Law and other relevant laws. On one hand, the law shall try to thoroughly and
explicitly list and prescribe in advance the necessary powers of the government for the
prompt attention to various accidents and dealing of crises in state of emergency. On the
other hand, the law shall at the same time strictly prescribe the limit of the emergency
power of the government and set up a certain grade standard for crises, which determines
the term, applicable areas and different types of emergency measures as well as the civil
rights that may be restricted in different grades of state of emergency. Secondly, for the
subject of power exercise who is variable with the situation, provisions shall be specified to
prevent abuses or prevarication due to the lack of legal authorization for the exercise of
power in state of emergency. Thirdly, the government responsibility shall be explicitly
prescribed by the Emergency Law and other relevant laws. on one hand, the scope and limit
of the emergency power shall be determined;
On the other, the responsibility range of the
government for dealing emergency shall be also determined. Fourthly, the condition of
the exercise of the emergency power by the government shall be determined by the
Emergency Law and other relevant laws. Fifthly, the mandatory procedure for the exercise
of the emergency power by the government shall be determined by the Emergency Law and
other relevant laws in order to prevent the government from expanding the emergency
power at will and ensure that the emergency power shall follow the right and legal
procedure and the exercise of the emergency power is highly effective. For example, any
emergent administrative legislation shall be authorized in advance; the partial suspension of
law enforcement shall be proclaimed and submitted to the authorities for reference; the
postponement of election shall be decided by which organ in which way; the requisitioning
of goods requires the issue of expropriation notice, etc. The legislation of the Emergency
Law must stress the significance of the term factor. The common practice in the world is to
prescribe the basic term of state of emergency. For example, the Emergency Law of France
in 1955 states that unless approved by law, the term of state of emergency decided by the
government shall not exceed 12 days. The Emergency Law of China shall also prescribe
strict restriction on the term for the proclamation and execution of state of emergency.
Sixthly, The purpose of the exercise of the emergency power by the government shall be
prescribed by various relevant laws, that is, when the law authorizes the government to
exercise the emergency power, it shall explicitly prescribe the purpose of the authorization
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so as to restrict the authorized power of government organs and their personnel in the legal
target scope and prevent abuse of power. Finally, strict liability system shall be established
for the Emergency Law. The Emergency Law shall prescribe the liabilities of the
government and its personnel in state of emergency for delinquency behaviors, abuse of
power, emergency power misbehaviors so that the empowered organs can exercise the
special power by rights.
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