The Role of Human Rights During a State of Emergency

Abstract

New Zealand has a rich history of an unwritten constitution following in the Westminster tradition. However, there is increasing discussion about the need for a written constitution as our nation develops and matures.¹ New Zealand has a near unique opportunity in this potential constitution drafting process. Unlike most constitutions that have been developed after times of conflict, New Zealand will be able to approach this process from a position of relative peace. However, if any resultant constitution is to be durable, in addition to providing an effective distribution and limitation on state power in times of peace, it must be able to survive situations of turmoil. Most constitutions have provisions that allow for extraordinary powers to be granted, and some basic rights to be derogated from, in situations of emergency, in order for the public order to be restored as soon as possible. This comes from an acceptance that there are some situations in which the normal separation of powers, and legal process is not capable of delivering a timely response to an imminent threat to the nation, or that the required response requires a temporary departure from legal norms. Any written constitution for New Zealand should have a provision for such emergency measures in order for the constitution to remain relevant in times of turmoil.

Emergency provisions, while assisting a constitution to remain relevant in times of turmoil, often allow the executive to take extreme measures, with fewer, if any, checks from the other branches of government. Although this helps to facilitate a timely response, this power is open to potential abuse. Therefore, it is important that any provision inserted into a constitution for New Zealand is drafted in a manner that limits any potential for abuse, whist remaining sufficiently wide in scope for necessary actions to be taken, if and when there is an emergency situation.

This paper will look at the historical and theoretical background to such provisions and how they have been drafted, interpreted and implemented overseas. It will look at current and historical legislation that has been enacted in New Zealand to allow the grant of emergency powers, and make recommendations for a potential future provision, with reference to the proposal for a New Zealand constitution as drafted by Geoffrey Palmer and Andrew Butler in Constitution Aotearoa.²

¹ An example of this is the Constitution Conversation in 2013, with the final report published in November 2013 which recommended that the Government continue an ongoing conversation about the constitution. See http://www.ourconstitution.org.nz/The-Report

² For an explanation of the Constitution Aotearoa project see http://constitutionaotearoa.org.nz/about/ and http://constitutionaotearoa.org.nz/constitution/read-chapters/proposed-constitution-full-text/