The Emergency Paradox: Constitutional Interpretation in Times of Crisis

DOI10.3366/elr.2021.0679
Published date01 January 2021
Date01 January 2021
Pages118-124
Author

The COVID-19 pandemic has presented an extreme challenge to legal and political structures around the globe. Institutions are struggling to cope with this new reality, none more strenuously than our legal systems which have rapidly introduced and frequently amended criminal and other sanctions in the hopes of curbing the spread of the virus. In such circumstances, the old adage that desperate times call for desperate measures rings true, prompting calls for a loosening or suspension of previously held legal norms. This article explores the role that the concept of an emergency plays in our interpretation of fundamental constitutional principles such as the rule of law.

Emergencies are, ironically, commonplace. Fires break out and road accidents occur on a daily basis. Indeed, so frequently that we employ full-time emergency services to respond to them. The normalcy of emergencies reveals a descriptive paradox, given that emergencies are often defined as abnormal instances demanding extraordinary responses. As Greene puts it, “emergencies are simultaneously a universal, inevitable reality but also unforeseen, exceptional events invariably requiring equally exceptional responses”.1 If our contention is that an emergency is something exceptional, which requires an exceptional response, it becomes difficult to see how fires or road accidents qualify. In most cases, there is actually not much which is exceptional about an emergency, particularly from the perspective of the law. Even large-scale crises such as natural disasters or viral outbreaks can and have been addressed within the ordinary confines of existing institutional structures, with, at most, a fast-tracked timeline or loosening of some procedural red tape. And yet, these examples do often warrant a different response, even if it is not a wholly exceptional one.

The difficulty then arises as to how emergencies interact with our constitutional norms, particularly those relating to the interpretation of legal concepts. Crises such as these force us to reconcile the exceptional with the fundamental. If emergencies are to have any legal significance such that they might trigger a state of exception, they must amount to more than simply natural concepts; they must also be legal concepts, interpreted harmoniously with legal and constitutional principle. This article will argue that, when interpreted through the lens of constitutional principle, the above paradox dissolves, leaving a body of coherent and flexible norms which need not countenance exceptions precisely because they provide ample resources to address unexpected challenges such as international terrorism or the COVID-19 crisis. Nevertheless, while the principles of the common law can provide flexible guidance in crisis situations, this does not mean that appeals to an emergency can necessarily justify departures from constitutional fundamentals. Ultimately, the appropriate and justified response to an emergency will be determined by reference to competing interpretations of constitutional obligation, not by the need to depart from that which is held to be fundamental to the legitimacy of governance.

DEFINING “EMERGENCY”

One thing that unifies different conceptions of emergency is an emphasis on departure from the ordinary state of affairs.2 Varieties of emergency arise because there are different standards of normalcy. A medical emergency is one which can't be dealt with by booking an appointment with a GP. The kinds of emergency which are interesting for constitutional theory are therefore those which are not or cannot be dealt with by the normal legal or political responses, be they constitutional convention, judicial interpretation, or regulatory or statutory creation. In this context, emergency is invoked as the justification for a departure from existing constitutional constraints upon executive or legislative power. International terrorism poses such a threat, it is argued, that it justifies denying suspected terrorists the right to a fair trial or the capacity to challenge the legality of their detention.3 As Greene notes, “[t]he entire purpose of declaring a state of emergency is to enable powers not ordinarily permissible under the constraints of the constitution”.4 This is true in other emergency contexts too. Ambulances and fire trucks are permitted to depart from the ordinary rules of the road and doctors may perform urgent procedures on an unconscious patient, even if they might ordinarily be required to obtain consent.

How then is the exception which allows ambulances...

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