EMERGENCY POWERS
EMERGENCY POWERS......
India......
EMERGENCY PROVISIONS UNDER THE INDIAN CONSTITUTION......
EMERGENCY PROVISIONS REGARDING STATES......
ZIMBABWE:......
Emergency Powers......
The State v Tekere & Others 1980 489 ZLR: defence of obedience to orders was available to the accused because of the State of Emergency
Minister of Home Affairs v York 1982 ZLR (2) 48 S Crt: Fresh detention orders do not cure the defects in the detention.
Holland v Commissioner of the Zimbabwean Republic Police 1982 ZLR (2) 29:Necessary for a police officer to personally have belief that there are grounds for the justifying the detention
Minister of Home Affairs v Bickle 1983 (2) ZLR 400 S Crt: Constitutionality of the Emergency Power (Forfeiture of Enemy Property) Regulations. Meaning of ‘enemy’. Situations of war or armed conflict . Regulations confiscatory and punitive in nature.
Minister of Home Affairs v Dabengwa 1983 ZLR 346 S Crt: Application to declare continued detention illegal. Order for habeas corpus. Availability of the writ de homine libero exhibendo. Remedyof mandamus
Paweni v Minister of State Security 1984 (1) ZLR 236 H Crt: Vagueness of reasons supplied to detainee. Remedy by an appropriate order.
Hartlebury & Evans v Chairman of the Detainees Review Tribunal 1986 (1) ZLR 99 (HC): Fair treatment by Tribunal.
Minister of Home Affairs v Allan 1986 (1) ZLR 263 (SC): Arrest under emergency powers on reasonable suspicion.
Minister of Home Affairs v Austin & Harper 1986 (1) ZLR 240 (SC): Review of detention. Assess the objective force of the facts and evidence.
Austin v Chairman Detainees Review Tribunal 1988 (1) ZLR 21 (SC): Withholding of evidence from detainee. Considerations of natural justice. Prejudice in the preperation of defence. Standard of proof. Onus.
EUROPEAN COMMUNITY......
Detention:......
Brogan v United Kingdom 11 EHRR 117 1988: Prevention of Terrorism Act: Detention: reasonable suspicion, promptness, habeas corpus, compensation
Inter-American Court of Human Rights:......
Derogation: emergency situations: habeas corpus:......
Habeas Corpus in Emergency Situations 11 EHRR 33: Advisory opinion by Inter American Court of Human Rights on writ of habeas corpus. Suspension of guarantees.
India
EMERGENCY PROVISIONS UNDER THE INDIAN CONSTITUTION
NATIONAL EMERGENCY
ART 352 (1) If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect, in respect of the whole or such part of the territory thereof...... ,
ART 353 While a Proclamation of emergency is in operation, then (a) not withstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised...... ,
ART 355 It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.
ART 358(1) While a proclamation of emergency is in operation, nothing in Art 19
( Fundamental freedoms) shall restrict the power of the state to make any law in which the state would but for the provisions of Art 19 be competent to make...... ,
ART 359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part 3 (fundamental rights) except ( Art 20 & 21 ) and all proceedings pending in any Court for the enforcement of the same shall remain suspended for the period during which the proclamation is in force...... ,
Thus as soon as a Proclamation has been issued, Art 19 is suspended and the power of the legislature and the executive is made wider. The suspension of Art 19 during the pendency of emergency removes the fetters on the legislature and executive powers by 19 and if legislature makes laws or the executive commits acts which are inconsistent with the rights guaranteed by Art 19, their validity is not open to challenge either during the continuance of the emergency or thereafter. Art 358 makes it clear that things done or omitted to be done during cannot be challenged even after emergency is over.
Under Art 359, the rights are not expressly suspended, but the citizen is deprived of his right to move any court for their enforcement.
ART 360 if the President is satisfied that a situation has arisen whereby the financial stability or credit of India is affected, he may make a Proclamation to that effect.....,
EMERGENCY PROVISIONS REGARDING STATES
ART 356 If the President on a receipt of report from the Governor of a state or is otherwise satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the Constitution, the President may by Proclamation -
(a) assume to himself all or any of the functions of the government of the state or any body or authority in the state except the powers of the legislature.
(b) declare that the powers of the legislature shall be exercisable by the Parliament,
Provided nothing in this Art authorizes the President to assume to himself any of the powers vested in the High Court.
(4) The Proclamation shall be in operation for a period of 6 months...... ,
This provision is misused by the political parties in power at the Center to dismiss the governments ruled by opposition parties in the states. This has been a threat to the concept of Federalism in India. Now the Courts have started interfering and have held the actions of the central government (in law issued by the President) as unconstitutional and have revived the legislatures of the states which were dissolved by the proclamation under Art 356.
The most recent case which decided the extent of judicial review of the Proclamation by the President imposing ‘President’s Rule’ in the states and consolidated the legal position on the subjective satisfaction of the President is SR Bommai v Union of India AIR 1994 SC1918.
The brief facts are the : Janatadal party secured the majority in the legislative Assembly of Karnataka . Due to internal squabbles in the party for power and dissatisfaction over the distribution of ministries, dissidents wrote to the Governor that they had withdrawn their support to the Chief Minister. The party at the center Congress grabbed the opportunity, dismissed the government in Karnataka and imposed President’s rule. This was challenged in the Supreme Court as unconstitutional. The Court examined the subjective satisfaction of the President and held that it was an improper exercise of power and hence unconstitutional . It revived the legislative Assembly for the first time in History. In doing so the following principles were laid down:
1.The power under Art 356 should be sparingly used and only when the President is fully satisfied that a situation has arisen where the government of the state cannot be carried on in accordance with the provisions of the Constitution. Otherwise the frequent use of this power and its exercise is likely to disturb the constitutional balance.
2. Resort to Art.356 should be the last resort.
3. While it is not possible to exhaustively list the various situations which could be said to constitute a breakdown of constitutional machinery, it could be illustrated as 1. A large scale breakdown of law and order, ii. Gross mismanagement of affairs by a state government, iii corruption or abuse of its power, iv danger to national integration or security of the nation or abetting racial disintegration or a claim for independent sovereign status and subversion of the Constitution.
4. The examples of the situations which may not amount to failure of the constitutional machinery are:
A. A situation of mal administration in the state where a duly constituted ministry enjoying majority support is in office. Imposition of President’s rule in such situations would be ‘extraneous’ to the purpose for which the power was conferred under A356.
B. Where a ministry resigns or is dismissed on losing its majority support in the Assembly and President’s rule cannot be imposed without exploring the possibilities of an alternative government.
C. The Governor has to give an opportunity to the ministry to prove its majority on the floor of the house before it could be concluded that it has lost its majority support.
D. It could not be as a political instrument. It is not permissible to use Art 356 to get rid of state government solely on the ground that different political party has come into power.
5. Failure of the state government to comply with or give effect to the directions issued by the central government cannot be the ground to impose President’s rule. The court can scrutinize the material on the basis of which advise was tendered.
ZIMBABWE:
Emergency Powers
The State v Tekere & Others 1980 489 ZLR: defence of obedience to orders was available to the accused because of the State of Emergency
Pittman J:
The defence of obedience to orders was available to the accused because of the State of Emergency, even though they were not technically on active service. Even if the order relied upon was illegal it could still form the basis of the defence. The test to be applied was not whether a reasonable man would have known of the illegality, but whether the accused person himself ought to have known of the illegality. The test depended on the Courts assessment of the accused.
Minister of Home Affairs v York 1982 ZLR (2) 48 S Crt: Fresh detention orders do not cure the defects in the detention.
Schedule 2 of the Zimbabwe Constitution provided that detentions made pursuant to Emergency Power Regulations had to be submitted within 30 days to a review tribunal. No tribunal appointed in respect of respondent. Fresh detention order made by applicant did not cure the defects in the detention.
But see Hickman v Minister of Home Affairs 1983 (1) ZLR 180 H Crt in which Pittman J dismissed an application to set aside a detention order in which the Review Tribunal had failed to hear the case in question after two months. The court accepted the explanation that the tribunal did not have a suitable venue for more than once a week.
Holland v Commissioner of the Zimbabwean Republic Police 1982 ZLR (2) 29:Necessary for a police officer to personally have belief that there are grounds for the justifying the detention
Detention in terms of the Emergency Power Regulations. Necessary for a police officer to personally have belief that there are grounds for the justifying the detention. Not enough merely to act on orders of a superior officer.
Minister of Home Affairs v Bickle 1983 (2) ZLR 400 S Crt: Constitutionality of the Emergency Power (Forfeiture of Enemy Property) Regulations. Meaning of ‘enemy’. Situations of war or armed conflict . Regulations confiscatory and punitive in nature.
Constitutionality of the Emergency Power (Forfeiture of Enemy Property) Regulations. Meaning of ‘enemy’. Court must first consider the issue of vires and reviewability of the Minister’s actions on common law grounds, before considering the issue of constitutionality. The presumption of constitutionality of legislation could not justify placing on the constitution a meaning which it cannot legitimately bear. Notwithstanding the acquiesence of the Senate Legal Committee, in the final analysis the protection afforded by the Decleration of the Rights could only hinge on the decisions of the Supreme Court. On all the authorities, the word ‘enemy’ can only be used in situations of war or armed conflict.
Holding of the court a quo confirmed. Regulations provided for a forfeiture of property and were consequently confiscatory and punitive in nature. They offended the safeguards provided by s16(4) of the constitution which provided for aquisition of property during public emergencies.
Minister of Home Affairs v Dabengwa 1983 ZLR 346 S Crt: Application to declare continued detention illegal. Order for habeas corpus. Availability of the writ de homine libero exhibendo. Remedyof mandamus
Failure by the Detainees Review Tribunal to review an Emergency Powers detention in terms of Schedule 2 of the Constitution. Application to declare continued detention illegal. Order granted in lower court. The rule in England that an order for habeas corpus was final and not subject to appeal (point taken in limine) was based on peculiarities in English law of procedure. The rule had no application in Roman-Dutch law.
The breach of mandatory safeguards does not necessarily result in the illegality of the original order. The availability of the writ de homine libero exhibendo cannot be extended to every instance of non-compliance with mandatory safeguards. The remedy for the infringement of the mandatory protections to which a person, who has been validly detained ab initio, is entitled during his detention must be by way of mandamus. Failure to compy with such an order would call into question the bona fides of the continued detention and an order for release could properly follow.
Paweni v Minister of State Security 1984 (1) ZLR 236 H Crt: Vagueness of reasons supplied to detainee. Remedy by an appropriate order.
Smith J:
Vagueness of reasons supplied to detainee in terms of s21 of the Emergency Power Regulations. Section not complied with if reasons too vague to enable detainee to make representations concerning the propriety of his detention. Failure to comply with the section does not invalidate the section. It must initially be remedied by an appropriate order.
Hartlebury & Evans v Chairman of the Detainees Review Tribunal 1986 (1) ZLR 99 (HC): Fair treatment by Tribunal.
As a Tribunal is not governed by the formal rules and restrictions which must be observed by courts of law it must at all times be alert to ensure that detainees are treated fairly in regard to the reception of evidence upon which it relies.
Minister of Home Affairs v Allan 1986 (1) ZLR 263 (SC): Arrest under emergency powers on reasonable suspicion.
McNally JA:
The Emergency Powers Regulations give no wider powers of arrrest than the Criminal Code. An arresting detail, under either provision, may act only upon reasonable suspicion.
Minister of Home Affairs v Austin & Harper 1986 (1) ZLR 240 (SC): Review of detention. Assess the objective force of the facts and evidence.
In reviewing a detention under the Emergency Powers Regulations the Court assesses the objective force of the facts and evidence in order to determine whether they justify the detention.
Austin v Chairman Detainees Review Tribunal 1988 (1) ZLR 21 (SC): Withholding of evidence from detainee. Considerations of natural justice. Prejudice in the preperation of defence. Standard of proof. Onus.
Dumbutshena CJ:
Emergency Power Regulations authorising withholding of evidence from detainee. Drafted in the knowledge that some elements of natural justice were to be excluded because of overriding considerations of natural justice. It was permissible for the Tribunal to rely on information not fully divulged to the detainee, provided that he was not prejudiced in the preperation of his defence. In such circumstances there is a correspondingly greater duty on the Tribunal to investigate the authenticiy and reliability of the information supplied to it.
The standard of proof to be applied in the Tribunal is the same as is generally applied in civil proceedings. Because such cases involve issues of personal liberty the degree of probability required is high. The onus rests on the Minister as it is he who seeks to enforce the detention and deprive the subject of his liberty. The detainee need do no more than rebut the Minister’s allegations.
EUROPEAN COMMUNITY
Detention:
Brogan v United Kingdom 11 EHRR 117 1988: Prevention of Terrorism Act: Detention: reasonable suspicion, promptness, habeas corpus, compensation
European Court of Human Rights: Prevention of Terrorism Act: Detention: reasonable suspicion, promptness, habeas corpus, compensation: The applicants were questioned within a few hours of their arrest about their suspected involvement in specific offences and their suspected involvement in specific offences and their suspected membership were consequently based on a reasonable suspicion of a commission of an offence within the meaning of Article 5(1)(c). The fact that the applicants were neither charged nor brought before a court did not necessarily mean that the purpose of their detention was not in accordance with the article. There was no reason to believe that the police investigation was not in good faith and that the detention was not intended to further that investigation by way of confirming or dispelling the concrete suspicions which formed the basis for their arrest. No violation can arise if the arrested person is released promptly if there is no intention to place the detention under judicial control. The assessment of ‘promptness’ has to be made in the light of the object and purpose of Art 5 which enshrines a fundamental right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty. Judicial control of such interferences is an essential feature of this guarantee, which is intended to minimise the risk of arbitrariness. Under article 5(3) to justify detention of 4 days and 6 hours without appearance before the judge would be an unacceptably wide interpretation of the plain meaning of the word ‘promptly’. Such an interpretation would import into the provision a serious weakening of a procedural guarantee.
Inter-American Court of Human Rights:
Derogation: emergency situations: habeas corpus:
Habeas Corpus in Emergency Situations 11 EHRR 33: Advisory opinion by Inter American Court of Human Rights on writ of habeas corpus. Suspension of guarantees.
Inter American Court of Human Rights 1987: Request by Inter-American Commission of Human Rights for an advisory opinion on whether the writ of habeas corpus, as guaranteed in Articles 7(6) and 25(1) of the American Convention is one of the judicial guarantees that cannot be suspended pursant to Article 27(2) in an emergency situation. The emergency clause must be interpreted in ‘good faith’ and keeping in mind the ‘object and purpose’ of the Convention. The suspension of guarantees may not exceed the limits of that strictly necessary to deal with the emergency. Under certain circumstances the suspension of guarantees may be the only way to deal with emergency situations and thereby preserve the highest values of a democratic society. The suspension of guarantees cannot be dissociated from the ‘effective exercise of representative democracy referred to in Art 3. The suspension of guarantees lacks all legitimacy whenever it is resorted to for the purpose of undermining the democratic system. The article envisages different situations and what might be permissable in one type of emergency would not be lawful in another. The lawfulness of the measures taken will depend upon the character, intensity, pervasiveness and particular context of the emergency and upon the corresponding proportionality and reasonableness of the measures. The suspension of guarantees does not imply a temporary suspension of the rule of law, nor does it authorise those in power to act in disregard of the principality of legality by which they are bound at all times. When guarantees are suspended, some legal restraints applicable to the acts of public authorities may differ from those in effect in normal conditions; but the government is not deemed to have acquired powers that go beyond the circumstances justifying the grant of such exceptional measures. Implicit in the judicial character of the guarantees is the active involvement of an independent and impartial judicial body having the power to pass on the lawfulness of measures adopted in a state of emergency. The remedy of amparo provided for in Article 25(1) applies to all rights including non-derogable rights in emergency situations. Amparo is a procedural remedy designed to give ‘simple and prompt recourse’ to a competent court or tribunal for protection against violations of fundamental rights. The writs of habeas corpus and of amparo are among those guarantees that are essential for the protection various rights, derogation wherefrom is prohibited by Art 27(2) and that serve, moreover to preserve legality in a democratic society. These legal remedies may not be suspended in emergency situations.