EMERGENCY POWERS: THE PROBLEM OF CONSTITUTIONALIZATION

Abstract

The article examines the approaches to emergency powers available in modern constitutionalism and emphasizes that the constitutional science of emergency powers has traditionally focused on the problem of institutional sovereignty. In the author’s opinion, normative duality provides a conceptual tool for managing the distinction between law and politics in the constitutionalization of emergency powers. The subject that switches the regime of law to the regime of emergency powers is central to the constitutional discourse on emergency powers. The author analyzes the transformation of emergency powers from a temporary legal mechanism to a permanent component of the national security regime, paying attention to the normalization of emergency powers and the general securitization of the constitutional order. The researcher focuses on the political nature of emergency powers and the threat to the rule of law by their legalization. The legal status of emergency powers is detailed through the prism of Oren Gross and Fionnuala Ní Aolain’s typology of legal regulation of emergency powers. Analyzing the adaptation model, the “business-as-usual” and the supralegal model of emergency powers, the author notes that modern researchers agree on the actual distinction between the exception and the norm, but have different views on the normative nature of emergency powers. Emergency powers, according to the author of the study, are guided by the ethics of political responsibility, which acts as a separate normative order. The issue of defining the institutional subject of emergency powers, that is, who should distinguish a real state of emergency from a pretended one, is identified by the researcher as the main problem in the institutional design of emergency powers. It is concluded that the constitutionalization of emergency powers should be carried out with the joint participation of the executive branch, which introduces them, the legislative branch, which approves them, and the judiciary, which is responsible for assessing the validity of emergency powers in a specific situation.