To what extent is the judiciary an effective guardian of constitutional provisions during the state of emergency? Constitutional law consists of higher order rules that structure the societal and political community by defining the “rules of the game.” However, constitutions themselves are the result of deliberative processes among different political actors who seek compromises often during time of uncertain power distributions. Therefore, constitutions are vague and even ambiguous. This is particular evident when a country faces a state of emergency defined as “a de facto situation, which, because of its nature, prompts the state to temporarily change some state structures so that it can more effectively and efficiently address the situation at hand” (Zwitter 2012, 7). Constitutional rights are approaching their limits when it comes to a state of emergency. This is why justices as guardians of the constitution are of particular importance during such time of crises. Nevertheless, fairly little is known about the role of the judiciary during the state of emergency.
We analyze the large cross-country variation in constitutional provisions defining and structuring the institutional status of the judiciary during the state of emergency. Moreover, we assess the effect of extraordinary circumstances on individual constitutional rights normally protected by judicial entities. We argue that the combination of the institutional setting and the protection of individual rights leads to different patterns of judicial strength: (1) The judiciary can either fully protect individual rights; (2) individual rights are suspended which is why the judiciary implicitly looses power; (3) the institutions of the judiciary are weakened and therefore unable to fully protect individual rights. We hypothesize that the position of the judiciary during the state of emergency depends on a country’s constitutional tradition and the degree of deliberative democracy.
Using self-collected data on current constitutions of 99 democracies we assess our general argument quantitatively. We choose the democracies based on overlap between three established indices measuring democratization (Freedom House, Polity IV, Boix et al. 2012). The findings from this study have two major implications: First, we extend our knowledge about the limits of constitutional provisions in democracies especially under the influence of extraordinary events. Second, focusing on the judiciary as a major branch in any political system we focus on an actor pivotal to securing individual rights but frequently overlooked when it comes to assessing the state of emergency.
