Melbourne Law School - Theses

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End date: 2022 × Start date: 2020 × Type: PhD thesis × Subject: Canada × Subject: Human rights ×

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    Emergency Powers in Times of Terror: A Comparative Study of Canada and France
    Snukal, Joshua Paul ( 2022)
    Constitutions establish the fundamental principles of government, both grounding and limiting the legal exercise of state power. In times of emergency, when public safety is threatened and the state must act to protect its citizens, these two constitutional functions can come into tension. A constitution may provide the legal basis for the state’s response to an emergency, but it may also constrain the state’s ability to act effectively during the time of crisis. Some constitutions, like France’s Constitution du 4 octobre 1958, anticipate this dilemma with emergency provisions. Other constitutional texts, like those of Canada, have no special provisions for emergencies. In either case, the state may choose to provide for an emergency framework by statute, accepting that the law must necessarily be constrained by the overarching constitution. Following the attacks of 11 September 2001, this constitutional dimension of emergency management acquired a new urgency because terrorism places extraordinary pressures on constitutional systems. By its nature, terrorism affects the state in its very essence. Through its immediate effects, terrorism calls into question the state’s ability to provide for the physical security of its citizens and challenges its corollary monopoly on violence. Through its induced effects, terrorism affects constitutional rights through the restrictions that it causes. Two decades after the attacks of 11 September 2001, amidst an ongoing global terror threat, constitutional systems continue to grapple with these pressures. This thesis investigates whether and why constitutional emergency provisions are necessary, or desirable, or even useful for dealing with the threats posed by terrorism. To this end, it seeks insight from the comparison of two constitutional systems that exemplify these opposite approaches: Canada and France.