The European Public Choice Society has its annual conference in Braga (Portugal) in the week of the 11th of April. To give you an idea of what is hot and happening in the field of political economy, Joes is interviewing attendants of the conference. For this interview, he spoke with Stefan Voigt, who is writing a paper on the unconstitutional use of the state of emergency.
Joes: “Could you please tell me something about the paper you are presenting at the EPCS conference?”
Stefan: “In this paper, which I wrote with Christian Bjørnskov and Mahdi Khesali, we are interested in the degree to which governments that had declared a state of emergency (SOE) are complying with the constitutional constraints that are still imposed on them during a state of emergency. We think there are three ways in which governments can act in an unconstitutional way with regard to a state of emergency. First, the declaration of a state of emergency is unconstitutional. This happens when the government ignores that others, such as parliament, need to assent to an SOE. Second, if during the SOE, the government does things it is not supposed to do such as ignoring human rights or spending money not according to the rules. Third, the government could prolong the SOE for longer than is allowed according to the constitution. So a case like France, where the SOE was extended numerous times after the terror attacks in November 2015 through constitutional means is not deemed unconstitutional.
So we gathered data on the length of the state of emergency, and whether governments complied with the constitutional constraints about the state of emergency. Specifically, we gathered data on hundreds of cases in which a state of emergency was called, for a couple of decades. And we then checked whether this was constitutional along the three lines I mentioned before. We have about 850 episodes of a state of emergency, some 115 we deemed to be unconstitutional. The evaluation of this is of course challenging. Legal scholars would ask us: why don’t you ask the court of that country? But the courts in a country are possibly not independent from government pressure, in which case their answer is not valuable. So instead we looked at reports of organizations like Freedom House and newspaper reports.”
Joes: “I read in your paper that there is a difference between states of emergency called due to a natural disaster and those called because of political turmoil. The former are much more likely to be constitutional than the latter. Is this a selection effect – governments who do not intend to abuse the SOE clauses do get hit by natural turmoil and then need to use the SOE for the kind of situation it is meant for? Or is do the SOEs that lead to unconstitutional behaviour simply different, and are they, therefore, more likely to elicit unconstitutional behaviour?”
Stefan: “It is the latter because political turmoil is so much more dangerous than a natural disaster for government survival. So a government is more likely to act unconstitutionally to save itself in case of political turmoil.”
Joes: “Is the unconstitutional use of emergency powers a common tactic to autocratize a polity?”
Stefan: “The word is not out on this yet, this is still being researched. But it is possible, yes.”