States of emergency are declared frequently in all parts of the world. Their declaration routinely implies a suspension of basic constitutional rights. In the last half century, it has become the norm for constitutions to contain an explicit “emergency constitution,” that is, the constitutionally safeguarded rules of operation for a state of emergency. This chapter asks whether inclusion of an emergency constitution can be legitimized by drawing on social contract theory, arguing that there are important arguments, both against and in favor of constitutionalized emergency provisions, and that social contract theory – as applied by economists – can be of some help when deciding whether to have, or not to have an emergency constitution.

It is almost the definition of a State that it has control over territory, control which has to be exercised through the application, or the threat of application, of physical force. The United Kingdom is no different from other States where, over time, the institutionalisation of this physical force has taken the form of an everyday service – the police – and a service which can be called in aid at times when unusual dangers have to be confronted – the armed forces. As the principle of the rule of law has evolved, so has the way in which the police and army have come to be regulated. Rather than being the enforcers of the law they are now viewed as its servants.

This edited volume explores the nature of authoritarian policing, its transformation and resilience, and its rule of law implications. The discussion of the evolution of policing takes place in the context of the overall development of the police, their professionalization, institutional autonomy and neutrality, legality, and their credibility within the communities they manage and serve. What makes policing “democratic” is a contested concept and the definition varies depending on the level of abstraction and the particular focus of the inquiry. While regime type, which is itself a contested concept, the close nexus between the coercive power of the police and the state, it is never dispositive. Thus, the dichotomous categorization of authoritarian policing (AP) and democratic policing (DP), while useful as a starting point for comparative analysis, misses a large amount of nuance and often overlooks the plurality of either system, neglecting the fact that a police system can be authoritarian or democratic in multiple ways and in different aspects of policing. This volume rejects this simple binary view. It aims to untie and unpack the nexus between the police and the political system and to explore the plurality of both AP and DP.

To test the hypothesis of policing as a function of regime type, this chapter focuses on the evolutions of political policing in light of recent Thai political developments – as only political policing is expected to be affected by democratization. Indeed, whether in times of full-fledged military dictatorship or in times of electoral democracy, routine service-oriented, law-enforcement type of policing remains relatively constant. This chapter argues that post-1970s democratization in Thailand had minimal effects on the entrenched practices of authoritarian policing. Democratization did not put an end to these practices but instead correlated with their legalization through the enactment of a set of empowering legislations. This empirical finding invites reconsideration of the hypothesis of a covariation of regime type and policing practices.

This chapter uses case studies of postcolonial Tanzania and Sierra Leone to examine pathways of persecution and punishment during pivotal moments of autocratic contestation and consolidation. Through careful process tracing, I analyze how the politics of the early independence period, which were fundamentally shaped by the struggle for national control, influenced strategies of judicial and extrajudicial repression in the years that followed. My analysis draws on a variety of archival sources that provide a rare window into the challenges faced by new autocrats, including how threats to autocratic survival were perceived in real time.

Chapter 5 highlights the emergence of a distinctly praetorian governmentality in the next cycle of military rule in the 1980s. Having displaced an elected government, the military regime of General Zia ul Haq (1977–88) set about the task of refining the blueprint for military rule. What was distinctive, however, about this form of praetorian governmentality as compared to the earlier period of military rule was the hegemonic ideation of political legitimacy predicated on religion. The military regime visibly embarked on the agenda of 'Islamising' the constitution and the laws. New Shariat courts were given unprecedented powers of judicial review of legislation for conformity with Islamic law at the same time that the fundamental rights provisions of the Constitution remained under suspension, and the superior courts’ Writ jurisdiction was incapacitated. Nonetheless, Islamisation also enabled the superior courts to re-orient their public law jurisprudence and to bolster their legitimacy. Pakistan’s appellate courts learnt to capitalise on this new rhetoric and restructured a more assertive form of judicial review grounded in the normative bedrock of Islamic legality.

Chapter 3 charts the consolidation of judicial review during the first period of direct and indirect martial rule under the Ayub regime (1958–1968). Despite the military–bureaucratic authoritarianism of the Ayub era and the judicial validation of Martial Law, the courts managed to preserve the judicial review of bureaucratic action. The exercise of the Writ jurisdiction aligned with the priorities of a Martial Law regime that was attempting to subdue and co-opt a hitherto powerful bureaucracy. In the post-Martial Law phase, the promulgation of the 1962 Constitution provided the courts with the basis to consolidate the foundations of the Writ jurisdiction along three axes – formal constitutionalism, administrative law and procedural safeguards against the abuse of public order and state security laws – which have remained at the core of the superior courts’ definition of rule of law in the decades since.

This chapter explores the use of martial law courts to punish and remove a number of chiefs after the Zulu rebellion of 1906. It focuses on the debates generated by two controversial trials under martial law: that of twenty Africans for the murder of two white policemen at the start of the unrest, and that of chief Tilonko for public order offences, which led to his deportation to St Helena. Taking place at a time when the colony was at peace, these episodes raised questions both about how far civilian courts could review military powers exercised under a proclamation of martial law and about the nature and purpose of indemnity legislation. In addressing them, the Privy Council once again took a very executive-minded view of emergency powers. Although officials at the Colonial Office were more sensitive to the demands of the rule of law, they were also prepared to defer to the political demands of a self-governing colony for severe action. Comparing the response to martial law in the Cape in 1899–1902 and Natal in 1906 reveals how much fidelity to the rule of law depended on how far its targets were perceived to be part of the political community whose rights needed protection.

This chapter looks at the use of martial law to detain and try British subjects in the Cape and Natal in the Anglo-Boer War, and the legal questions raised. Since the legal nature of martial law was still contested, its ambit was a matter of negotiation between various parties, military and civilian, imperial and colonial. This is shown through the debates over the creation and role of a special court to deal with rebels, and over the introduction of a limited form of martial law in the Cape ports. The right of the military to detain under martial law was repeatedly challenged in litigation which revealed that the attitude of the judges in the Cape courts was often much more liberal than that of those in the Privy Council. The Cape legislature was also unwilling to indemnify the military for its actions unless the sentences of those held in prison as a result of martial law trials were reviewed and revised. This chapter shows that, while Cape politicians often sought to rein in martial law powers by subjecting them to common law tests, both the military authorities and judges in London were more prepared to concede the executive exceptional powers in times of perceived emergency.

This chapter explains the notion of the rule of law which Victorian jurists associated with the English constitution. It examines the role of habeas corpus in securing personal liberty, and explains the debates over martial law which followed the Jamaica revolt of 1865, in which common lawyers sought to subject emergency rule to the rule of law. Despite this strong commitment to the rule of law at home, British rulers in the empire regularly introduced emergency regimes or detained political prisoners through ad hominem legislation, as was done in 1877 in the case of Abdullah, Sultan of Perak. Whereas in India, general legislation was passed to allow the detention of political prisoners and the introduction of martial law, in most of Africa, the colonial authorities used either specially enacted ad hominem ordinances or uncodified martial law powers. This was done even in East Africa, when Mwanga of Buganda and Kabagera of Bunyoro were detained and deported, even though legislation following Indian forms had been passed there. This chapter considers questions raised by the use of such emergency legislation for British perceptions of and fidelity to the rule of law.

This chapter examines the use of martial law powers during four frontier wars against the Xhosa people, in 1835, 1846, 1850 and 1877, and two rebellions by mixed-race ‘Hottentot’ and Griqua people, and discusses the debates over the nature of martial law which followed. During the first two wars, martial law powers were largely used to facilitate the raising of troops, but questions were raised about whether martial law could be used to govern newly acquired areas. As the debates over the status of the territory east of the Keiskamma river showed, martial law could not be used to govern land incorporated into the colony, but it could be used to administer conquered lands. Martial law powers were also used to conduct trials and imprison rebels in 1851 and 1878, which led to debates between law officers in London and Cape Town regarding the nature of these powers. In these debates, the law officers endorsed the English common lawyers’ view which had emerged after 1865. A strong commitment to the rule of law was also expressed by the Cape Supreme Court when dealing with the case of Griqua prisoners, detained without trial at Cape Town after the rebellion of 1878.

This chapter explores the various reasons why an imperial power ostensibly committed to the rule of law frequently resorted to detention without trial in Africa. In some cases, the use of ad hominem laws reflected jurisdictional ambiguities, when the authorities were unsure over their jurisdiction to put political prisoners on trial. In others, they were a means of giving formal validity to acts of executive power, in order to prevent prisoners making habeas corpus applications. While imperial acts often went against a substantive notion of the rule of law, officials sought to give them formal legal validity, and not justify them as acts of state. This chapter reflects on what this tells us about Victorian and Edwardian understandings of the rule of law. For lawyers in the metropolis, the formal and substantive versions of the rule of law were not in tension: the sovereign lawmaker would pass emergency legislation or indemnity acts only in cases where a common lawyer would agree to its necessity. In the empire, however, the tension between the rule of law and rule by law became evident: and how far the rule of law prevailed depended more on politics and culture than on law itself.

This chapter will further explore the consequences of the German troops’ contact with their compatriots. The failure to evacuate the local population from East Prussia meant that they found themselves in Königsberg, an area of operations under martial law where a military mindset prevailed. Soldiers perceived their environment completely differently than civilians and yet the set of military laws to which these men had long adhered became the standard of reference for what passed as ‘normality’. In this major shift in what was considered normal, almost from the very commencement of the siege of Königsberg civilians were ordered to contribute to its defence, thus having to ‘earn’ the right to be protected. In line with military custom, failure to comply was considered desertion and was punishable by death, even though commanders were fully aware that civilians could not accustom themselves to military standards overnight. Since these coercive measures ensured a compliant population, Party functionaries expressed the desire to implement similar legislation on a national level, which took place throughout February and March 1945. This led to a diverse set of perpetrators, which in turn resulted in a dramatic increase in the number of victims among the general population.

This chapter explores typologies of frontier violence as a particular feature of Britain’s settler colonial world. As historians have discussed, settler colonialism was distinctive from other forms of colonialism for its reliance upon the acquisition of Indigenous lands and the dissolution of Indigenous societies. From the 1820s onwards, the increasing pace of settler migration to the colonies and the settler demand for land created new pressures that generated repetitive patterns of frontier warfare for the next century. Indigenous peoples resisted colonial incursions on their country, and governments responded with an array of measures that ranged from diplomatic solutions to paramilitary policing and the enlistment of martial law. This chapter considers how these patterns of frontier violence were not consistent around the nineteenth-century British world but moved in cycles between strategies of conciliation and extraordinary legalized force. In doing so, it traces how different expressions of frontier violence supported government efforts to secure the settler polity and to assert colonial claims of sovereignty.

While both the PRC in Sunan and the ROC in Taiwan had judicial systems that presumed the guilt of the accused and offered lenience to those who came forward and confessed, both were in practice arbitrary. In Sunan promises of lenience for those who registered were abruptly cancelled with the “high tide” of the Campaign to Suppress Counterrevolutionaries, and in Taiwan the extension of lenience was notoriously inconsistent. The ways in which the state in Sunan and Taiwan implemented campaigns against subversion were, however, very different. In Sunan, the accused were paraded in front of a large audience in public accusation sessions and directly confronted by their victims’ tales of sorrow, whipping up the crowd into enthusiasm for the state’s just retribution; in Taiwan the accused were spirited away by shadowy security organizations, held incognito in prisons, and sentenced according to (martial) “law” in performances of procedure put on by the state for itself.