The Courts' Judicial Review of the Declaration and Extension of a State of Emergency in Comparative Perspective

In democratic systems, even when the Constitution recognises and regulates states of emergency, respect for the rule of law remains imperative. This control is often exercised through the action of the courts, which verify respect for the rule of law through their jurisdiction over the acts that the public authorities perform in the exercise of emergency prerogatives. Much more varied, however, is the overview that comparative law shows with respect to the courts’ control over the declarations of the state of emergency. The aim of the chapter is to propose an overview of the roles that courts may assume in exercising their power of judicial review precisely with respect to the declaration and extension of a state of emergency. In particular, the fol-lowing jurisdictions will be analysed: a) those in which the courts - by self-restraint or by explicit constitutional provision – do not operate this kind of review; b) those in which the courts operate only a limited review – for example, with regard to the procedures adopted, or to verify the compatibility of the declaration with international law; c) those where the courts operate more rigorous control over both the declaration and the extension of the state of emergency. The purpose of the analysis is, therefore, to provide an overview that shows how a more active role of the courts in practising judicial review in this area also promotes respect for the rule of law, as it ensures the participation of apolitical bodies in the supervision of the emergency.