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Emergency

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Emergency

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EMERGENCY POWERS
EMERGENCY POWERS................................................................................................................................1
India..................................................................................................................................................................1
EMERGENCY PROVISIONS UNDER THE INDIAN CONSTITUTION...............................................1
EMERGENCY PROVISIONS REGARDING STATES.............................................................................2
ZIMBABWE:...................................................................................................................................................4
Emergency Powers......................................................................................................................................4
The State v Tekere & Others 1980 489 ZLR: defence of obedience to orders was available to the
accused because of the State of Emergency ............................................................................................4
Minister of Home Affairs v York 1982 ZLR (2) 48 S Crt: Fresh detention orders do not cure the
defects in the detention.............................................................................................................................4
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 .........................5
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. .....................................................................5
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.
Remedy of mandamus .............................................................................................................................5
Paweni v Minister of State Security 1984 (1) ZLR 236 H Crt: Vagueness of reasons supplied to
detainee. Remedy by an appropriate order...............................................................................................6
Hartlebury & Evans v Chairman of the Detainees Review Tribunal 1986 (1) ZLR 99 (HC): Fair
treatment by Tribunal...............................................................................................................................6
Minister of Home Affairs v Allan 1986 (1) ZLR 263 (SC): Arrest under emergency powers on
reasonable suspicion.................................................................................................................................6
Minister of Home Affairs v Austin & Harper 1986 (1) ZLR 240 (SC): Review of detention. Assess the
objective force of the facts and evidence. ................................................................................................7
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. ........................................................................................................................................................7
EUROPEAN COMMUNITY...........................................................................................................................7
Detention: ....................................................................................................................................................7
Brogan v United Kingdom 11 EHRR 117 1988: Prevention of Terrorism Act: Detention: reasonable
suspicion, promptness, habeas corpus, compensation..............................................................................7
.................................................................................................................................................................7
Inter-American Court of Human Rights: .........................................................................................................8
Derogation: emergency situations: habeas corpus:.......................................................................................8
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........................................................8
.................................................................................................................................................................8

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

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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:

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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 Courts 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.

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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. Remedy of 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
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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.

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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

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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

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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 nonderogable 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.

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