Plenary Panel 3 : The effects of emergency measures on the separation of powers

A declaration of emergency, and the promulgation of emergency powers, enables the suspension and suppression of separation of powers. As a constitutional mechanism, emergency measures traditionally endow the executive with vast executive and legislative powers to deal with threats to national security, economic life, or public order.  Often, this is a platform for unbridled exercise of executive powers that is beyond the pale of accountability and scrutiny.

There are therefore underlying tensions and fissures between the imposition of emergency law and the functions of a government based on the rule of law. It is necessary to explore and determine the proper parameters and fault lines of these constitutional constructs, within the scope of the doctrine of separation of powers. A critical part of this discourse is the role of the legislature and the judiciary in defining and enforcing the proper constitutional boundaries that would prevent abuse of power by the executive. The balancing of the exercise of powers, in the context of a declaration of emergency, is dependent on these other two arms of government being allowed to discharge their constitutional functions without let or hindrance.