Emergency powers and constitutional theory

Abstract

Contemporary theories of emergency powers have been so distracted by local debates that the broader aspirations of constitutionalism - subordinating arbitrary political power to law and managing internal conflict through non-violent institutional means - have been taken for granted. Drawing on the experiences of aspiring constitutional orders in Southeast Asia (East Timor, Malaysia, Singapore and Thailand) with emergency powers, this paper seeks to shift the attention of constitutional theorists away from parochial debates, towards an understanding of constitutional theory and emergency powers that extends beyond the familiar domain of liberal democracies. It begins by showing how contemporary theories of emergency powers are premised on assumptions about institutional stability. Then, using various Southeast Asian experiences, it exposes the importance of the social and political foundations for the project of constitutional constraint of state power. Finally, it suggests some important lessons for constitutional theory in established liberal democracies in its attempt to come to terms with emergency powers.