A/HRC/4/25
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respects it failed the constitutionality test, in particular the order issued to law enforcement
officers concerning acts of terrorism, since the absence of a definition of “terrorism” gave rise to
legal ambiguity which could result in arbitrary action.5
41.
The principle of proclamation refers to the need to publicize the declaration of, grounds
for and duration of the state of emergency. This is an action taken at the domestic level which is
strictly regulated from the procedural and substantive standpoints. Although treaties do not
contain explicit provisions on the subject, it is understood that the proclamation is the
responsibility of the State’s political authorities. What is more controversial is the role of the
judiciary and its authority to verify whether the formal and substantive requirements applying to
the act of proclamation are met. Setting aside the latter until the principle of exceptional threat is
considered, there is unanimous agreement on the fundamental role of the judiciary in verifying
whether the formal requirements applying to the state of emergency are met. South Africa and
Colombia offer noteworthy examples. Under the South African Constitution, a state of
emergency must be declared by Parliament, and the courts have considerable discretion to decide
on the validity of the declaration and action taken pursuant to it. Under the Colombian
Constitution, a state of emergency must be declared by Presidential decree and must be
subsequently reviewed by the Constitutional Court. The Constitution expressly provides that the
decree must comply with international human rights law, a requirement verified by the
Constitutional Court. The Colombia office of the Office of the United Nations
High Commissioner for Human Rights participated in this process and the subsequent
declaration of unconstitutionality, through an amicus curiae appearance in the Court.
42.
Like the principle of proclamation, the purpose of the principle of notification is to
publicize the state of emergency, but in this case within the international community: States
which declare a state of emergency must immediately inform other States parties in an
agreement specifying the provisions suspended and the reasons for the decision. Only if this
requirement is met may the State invoke the restrictions introduced before the relevant
supervisory body. During his 12-year mandate, the Special Rapporteur on states of
emergency followed the practice of sending notes verbales to all States requesting information
about the existence and application of every state of emergency which was notified to him by
one channel or another - the reasons for proclaiming it, rights restricted, etc. In this way, the
authority to monitor States’ compliance with their international obligations during states of
emergency - which as a rule national bodies do not do - was transferred to the international level.
43.
The principle of temporality implies a close connection between the duration of the state
of emergency and the circumstance that gave rise to its introduction. Through violation of the
principle of temporality states of emergency become permanent in nature, as a result of which
the executive holds extraordinary powers. In such cases the judiciary plays an important role in
ensuring that the principle of temporality is upheld, by questioning the lawfulness of successive
extensions of the state of emergency. However, the exercise of such power by the judiciary is
often challenged, the assumption being that it is the political authorities which should evaluate
the circumstances that prompted the declaration and application of the state of emergency. Yet,
5
G.R. No. 171396. 3 May 2006, Randolf et al., David et al. v. Gloria Macapagal-Arroyo.
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