From the Editors
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With states of emergency proving salient to the unfolding of the “Arab Spring” and continuing to permeate the political landscape—through opposition to long-standing emergencies as well as proclamations of new ones—it is worth reflecting on the genesis and underlying essence of emergency law. The ostensible premise of the doctrine of emergency is one of a last resort mechanism to be implemented for the common good, with the temporary suspension of certain freedoms necessary to facilitate an expedient return to normalcy and the full restoration of human rights. Historical experience, however, from European colonialism to Arab dictatorship, suggests that reality is otherwise.
Colonial Emergency Law: Ireland, Kenya and Beyond
The history of conquest and conflict in Ireland reveals a reliance on emergency powers that is perhaps unparalleled in modern history. English authorities expanded the reach of martial law from its traditional wartime-only function and initiated its deployment in times of peace in sixteenth-century Ireland. In 1556, Mary I instructed the army marshal in Ireland to proceed against “vagabonds and all idle and masterless men” by martial law. Similar peacetime invocation of martial law followed in England, but its repressive nature prompted parliament to revoke such competence from the Crown through the Petition of Right in 1628. The brakes were left off in Ireland, however, where martial law continued to serve as an effective instrument of colonial control. By the nineteenth century, Ireland had—along with India—become an embryo for the development of emergency legislative codes, through which the violence of martial law was refined under the guise of statute-based special powers; its exceptionality normalised through the law-making process.
Following partition in 1922, the north of Ireland remained under British control, and has been subject to almost uninterrupted emergency rule since then, beginning immediately with enactment of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922. In 1957, the British government lodged a formal state of emergency derogation under Article 15 of the European Convention of Human Rights to exempt its special powers of detention, search and seizure, and censorship in northern Ireland from compliance with the Convention. As the “Troubles” intensified in the 1970s, a cumulative process of emergency lawmaking grew from the Northern Ireland (Emergency Provisions) Act 1973 and the Prevention of Terrorism (Temporary Provisions) Act 1974. Although the illiberal measures were framed as exceptional and temporary, they were renewed and updated periodically through the subsequent two decades. Parliamentary management of the conflict thus framed and disproportionately targeted the Irish Catholic population as a suspect community through the implementation of emergency measures. The presentation of the threat to security in the northern Irish context echoed that which had underpinned Britain’s discourse of emergency in Palestine in the 1930s, Malaya in the 1940s, Kenya in the 1950s, and so on; a discourse that continues to illuminate contemporary security politics. When Britain withdrew its emergency derogation from the European Convention in northern Ireland in the 1980s, the state soon found itself censured by the European Court of Human Rights over its continuing policies of executive detention. The British response was not to revoke the special powers, but rather to immediately lodge a new derogation under Article 15. The Terrorism Act 2000 rolled back some long-standing emergency powers in northern Ireland but consolidated many of the measures as permanent features of British anti-terrorism law. Significantly, this act of normalisation came in the context of an ‘emergency’ notable primarily by its retreat. The legislation was enacted after the end of overt conflict in Ireland signalled by the signing of the Good Friday Agreement in 1998, and before the attacks of 11 September 2001 and 7 July 2005.
From this historiography, unveiling over 400 years of extraordinary powers consistently operating beyond the rubric of the prevailing ‘ordinary’ law, a picture of what may best be described as the banality of emergency comes into focus. British colonial history is particularly revealing of the use of the state of emergency not merely as a temporary and exceptional reactive mechanism to avert prevailing or imminent crises, but as a calculated pre-emptive measure infused into the ongoing governance of the colonial territories. To varying degrees, this was the case throughout the empire, even as the sun began to set on European imperialism in the 1940s and 1950s. The 1948 Panic in Whitehall—generated by increasing opposition to British rule in the colonial territories—prompted an empire-wide deployment of the emergency paradigm as a technique of containment. In Kenya, for example, contingency plans for a state of emergency were drawn up in early 1950; before the large-scale proliferation of Mau Mau oathing campaigns, and before the colonial administration even had any clear idea of what the Mau Mau society was. Following pre-emptive measures being taken against the Kikuyu community as a whole in central Kenya, the colonial governor duly declared a formal state of emergency in 1952. Historians of the Mau Mau rebellion underline the point that armed revolt did not precede but rather was the consequence of the calling of the emergency, provoking a conflict that reached its peak intensity in 1954. The human rights implications of the emergency were substantial, with mass internment of Kikuyu Kenyans in prison camps, and an execution of the death penalty under emergency regulations on a scale unrivalled in any other modern imperial context. Archive documents from 1957 highlight consensus among British officials that “normalcy” had returned to Kenya by that point. They also reveal the colonial authorities’ explicit decision to nonetheless retain the legal state of emergency in order to facilitate continued reliance on emergency powers, free from concerns over human rights obligations. As was the case in a number of other colonies, the state of emergency in Kenya continued until independence.
This phenomenon of reliance on the state of emergency is by no means exceptional or unique to the historical context; the long shadow cast by colonial concepts of emergency continues to envelop western legality and post-colonial nation states. The temporal process of inscribing emergency measures into normalcy regimes has simmered steadily along for the duration of the UN era. By the late 1990s some one hundred states had been under a state of emergency in the preceding decade, encompassing three-quarters of the earth's surface, and this before the initiation of the global ‘war on terror’.
Governmentality, and the Role of Law
With emergency thus appearing as an ongoing process of controlling populations—indeed, as a form of government—Michel Foucault’s postulations on governmentality can help in unpacking contemporaneous configurations of the state of emergency, not least regarding its crucial temporal element. In contrasting the Machievellian conception of sovereignty (as exercised in the Middle Ages over territory and subjects) with La Perrière’s notion of government that concerns itself with a wider complex of men and things (of which property and territory are merely one variable), Foucault identifies within European political discourse a shift from sovereignty to the “art of government” from the sixteenth century onward. This is embodied in a movement “that brings about the emergence of population as a datum, as a field of intervention and as an objective of governmental techniques.” The transition that occurs in western liberal states moves away from traditional understandings of sovereignty and toward what Foucault terms governmentality:
The ensemble formed by the institutions, procedures, analyses and reflections, the calculations and tactics that allow the exercise of this very specific albeit complex form of power, which has as its target population, as its principal form of knowledge political economy, and as its essential technical means apparatuses of security.
This implies an institutionalised and temporally boundless process of managing a population, standing opposed to the singular and ephemeral moment of exception personified in Carl Schmitt’s sovereign decisionism. Within the “tactics” and “security apparatuses” of the governmentality paradigm we may include emergency powers. The Foucaultian evolution from sovereignty to governmentality is mirrored in the realm of emergency by a shift from the temporary sovereign exception towards legislative codification and entrenched emergency rule. The process of normalisation that Foucault describes may be opposed to juridical sovereignty, but not to law itself; sovereignty is supplemented, rather than supplanted, by governmentality. Emergency powers are not exercised in a normless void of sovereign exceptionalism, but form part of the broader, normalised security apparatuses of governmentality.
In this context we can identify two basic models in terms of how the state of emergency manifests itself today. One is a legislative model, whereby extraordinary measures are enacted as part of the normal lawmaking process. This was the case in British colonies where more intricate legal systems had been implanted; in Ireland and India in particular a cumulative legislative process emerged and continued throughout the 1800s. Layer upon layer of emergency powers became embedded in normal law, as opposed to the sporadic declarations of an exceptional regime that martial law had traditionally implied. This is also the model that we see in contemporary Britain, where emergency measures continue to be consolidated through parliamentary legislative procedures in the realm of counter-terrorism.
The second, contrasting model involves the management of a population through the continuous renewal of a single emergency law or decree. This law vests special powers in the executive and typically involves at least partial suspension of the Constitution and the normal judicial system, while at the same time often still requiring some form of parliamentary endorsement to maintain the emergency. This was the kind of model deployed in colonies where Britain did not have an elaborate legal system and judiciary in place, and the colonial governor was vested with a higher degree of personal discretion. The state of emergency that continued in Kenya throughout the 1950s is a prime example. It is this model that best describes the regimes of emergency rule that have prevailed in recent decades in Algeria, Syria and Egypt.
Entrenched Emergency Rule in the Arab World
Subjected to fierce repression under a state of emergency from 1955 to 1961 by French colonial forces, Algeria’s own post-colonial emergency was enacted at the beginning of 1992 amidst fears that the Islamic Salvation Front (FIS) would defeat the ruling National Liberation Front (FLN) in Algeria’s first multi-party elections. A 12-month state of emergency was imposed by the Supreme Council of State, and was subsequently extended indefinitely, consolidating military power at the expense of citizens’ rights. The provisions of an emergency anti-terrorism decree passed in late 1992 were almost entirely incorporated into permanent legislation by 1995. The state of emergency continued uninterrupted until early 2011, long outlasting the Algerian civil war, and underpinning mass arrest and detention, torture and suppression of dissent.
Syria, for its part, was subject to forty-eight continuous years of emergency governance under the Ba‘thist regime, with a 1963 emergency decree vesting almost total power in the President and the state’s military-security apparatus. Under this form of rule, Syrian constitutional protections were suspended, along with the process whereby presidential decrees must be approved by the People’s Council in order to become law.
Egypt has been under emergency rule for the majority of the past century, straddling both its colonial and independence periods, with the current stint now hitting thirty years. Based on the emergency law (Law No. 162 of 1958), provisions of the constitution were summarily abrogated, freedom of expression and association drastically curbed, and a parallel justice system comprising specially constituted emergency courts as well as the trial of civilians by military courts was institutionalised. The state of emergency is subject to periodic review and renewal by the People’s Assembly, but the nature of the Egyptian political system under President Mubarak rendered this little more than a rubber-stamping exercise.
With the respective emergency laws seen as inextricably entwined with repressive political apparatuses in these Arab states, the repeal of the state of emergency crystallised as a central demand of the popular uprisings against ruling elites. Broad-based movements rising up against the imposition of emergency law continue to eviscerate the premise that it is integral to the common good. Indeed, the state of emergency itself has emerged in recent years as a site of resistance to state hegemony across the globe. India’s north-eastern provinces, for example, have been home to concerted grass-roots campaigns and human rights advocacy calling for the repeal of the Armed Forces Special Powers Act 1958—a temporary emergency law based on British colonial ordinances—now in place for decades in a number of provinces. In Sri Lanka, trade unions and socialist parties haverailed against the renewal (despite the end of the Tamil conflict) of the state of emergency and its utilisation for the imposition of draconian economic measures. Resistance to the state of emergency at a legal-political level can also be seen in the post-conflict transition in northern Ireland, where the question of what—if any—form an emergency derogation regime should take in the country’s proposed Bill of Rights has arisen in the consultation process. On the basis of experience of emergency powers operating in an oppressive manner and serving as an aggravator of conflict, the political factions of the republican movement have argued for the exclusion of a derogation regime, with some rights to be subjected only to appropriate limitations clauses.
Pressure from protestors in Algeria led to thelifting of the state of emergency in February 2011. Coming as part of a package of concessions by the government, this appears to have played a role in the Algerian situation gravitating towards reform rather than the kind of revolution witnessed in Tunisia and Egypt. In Egypt, however, even as Mubarak sits in the dock, we see the retention of the state of emergency and the persistence of Mubarak’s methods. After his resignation, the Supreme Council of the Armed Forces promised that they would repeal the emergency once appropriate. This has yet to materialise, and the military continues to exercise special executive powers—curfews, censorship, internment, and trial of civilians by military court—under the emergency law. The military council has approved an additional emergency law, prompting fears over the intractability of a mechanism so entrenched in the security regime. Protestors persist in their demands for an end to the state of emergency.
In Syria, on the other hand, President al-Assad opted to rescind the emergency law and abolish its associated security courts in April 2011. This gesture to placate protestors has proven to be entirely hollow based on the subsequent intensification of state repression. Syria thus conjures premonitions of the oft-experienced seepage of emergency measures into the regular legal system, even after an official end to the state of emergency.
International human rights treaty-monitoring repeatedly questioned Algeria, Egypt, and Syria about the need to maintain their emergency laws. Each government insisted on their necessity for national security purposes. Once the regimes came under threat of being overthrown by their people, however, they began to use the state of emergency as a political bargaining chip; undermining any arguments about its legal "necessity." The penchant of the coloniser and the dictator for the state of emergency is revealing of its intrinsic nature. As one of history's more notorious colonisers and dictators, Oliver Cromwell, put it: "necessity hath no law." The state of emergency can be seen, more than a legal doctrine, as a governmental structure. Historical experience warns us that once such a structure takes root in a political system, it becomes very difficult to roll back, even in the context of cathartic anti-colonial or anti-authoritarian revolution. In that context, resolute resistance to the normalisation of illiberal emergency measures becomes all the more critical.
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