Emergency Law and Prerogative

Emergency law means that the ruler or the government in an emergency situation can take measures that are outside the limits of the law or against the direct letters of the law. Emergency law must be decided by the executive power, the executive branch of government.

For example, the Danish intelligence agency's files are a typical example of emergency law. They are a clear violation of the Danish Basic Law article 77 - "Censorship and other preventive measures shall never again be reintroduced."

The concept of emergency law is based on the truth that the overall purpose of all government really is the good of the people.

Democracy, laws and human rights are merely means that the people can use to control the executive branch and thereby ensure that it works for the real purpose, which is the best for society.

Human rights and democracy should not be overall common values that replace the real objective, the good of the people. They are only tools in the political process. If laws, democracy or human rights stand in the way of this objective, the executive power will do right to ignore them.

Emergency laws may imply that the executive power interferes in some citizens' freedoms as defined by actual laws, in order to achieve the larger goal of the good of the people and the nation.

Emergency laws can hardly be defined in a constitution or other laws, since these precisely by definition are measures that are not within the scope of the law, or they are contradicting existing laws written letter. It takes measures for situations, which legislators were unable to predict, when the laws were made.

Rules for emergency laws or prerogative, as Locke called it, cannot be defined by international legal literature and legal experts' notes. If the situation requires that the executives cannot follow written laws, why should legal professor's papers restrict them?

After the emergency situation is over, the executive should seek approval for its actions in the parliament and ultimately with the people.

When the hero of an American action film jumps into a random private car, pulls up a police sign and says: "Police, we need this car, get out". So it is a kind of popular illustration of emergency law.

The police agent overrides some less important laws, namely such about private property and the owner's right to exercise his ownership over his car, in order to achieve a greater common good, namely the arrest and conviction of the great enemy of society, whom he pursues.

John Locke's Prerogative

The philosopher John Locke was the architect of the modern Western democracies. It was his ideas about democracy, which the thirteen rebellious British colonies utilized in 1776 in their new Constitution for the United States. The new democracy in the distant America became a major inspiration for the following French Revolution in 1789.

Locke created the ideas of representative democracy, regular elections, separation of power, and much more.

His political masterpiece is "Second Treatise of Government". Chapter 14, "Of Prerogative", describes government decisions that are not supported by ordinary law.

John Locke was aware of the danger that politicians could come to forget the true purpose of legislation and government and tangle up in pedantic speculation about democracy theoretical details.

The basic purpose of laws and government are the good of the people. Locke wrote: "- judging rightly, that they did nothing herein to the prejudice of their laws, since they acted conformable to the foundation and end of all laws, the public good." (Sec. 165)

The executive power should be able to make decisions outside the framework of the law, wrote Locke. "- for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no directions" (Sec. 159).

In an emergency situation it should also be possible for a government to take decisions against the letter of the law, to the best of the people. "This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative" (Sec. 160).

That is, what we call emergency law.

The superior purpose of government, Locke believes, is the good of the people. No matter what clever arguments weak princes lead in the field to support their corrupt case, it is not true and just, if not the general direction of their policy is for the good of the people.

The people have no trouble determining whether a prince's government is for the good of the people or not.

The Internment of the Communists in 1941

In Denmark, the executive power has used their prerogative in a number of cases, issuing emergency laws.

When the Germans opened their Barbarossa offensive against the Soviet Union on June 22 1941, requested the German military commander in Denmark 196 named Danish communists to be arrested and taken into custody, including three members of parliament.

The head of the government, Thorvald Stauning, gave the order that the German request should be fulfilled.

A total of 325 Communists were arrested by the Danish police and placed in the prison, "Vestre Fængsel", or detained in a camp at the village of Horserød near the city Elsinore.

Two months later, 20 August 1941, Parliament passed a law retroactively, which outlawed communist activities and was the legal basis for the arrest of any person, who was supposed to take part in such activities.

This decision by the executive power was a clear breach of the constitution. It was in open contradiction to the letter of the law.

The imprisonment of the communists was in contradiction of the Danish Basic Law article 71, also in 1941: "The Personal freedom is inviolable. No Danish person can, because of his political or religious beliefs, undergo any form of detention."

The imprisonment of communist parliament members were in contradiction of paragraph 57: "No member of parliament may without its consent be subject to prosecution or imprisonment of any kind, -"

In legal terminology a law with retrospective effect is called an "ex post facto law." Such laws are generally regarded as a breach of law and order.

We cannot say, that a nation is ruled by law, when the laws are made only after, the events have taken place and adapted according to, whom the rulers want to have convicted.

This decision was a typical case of emergency law or prerogative, as Locke would have expressed it. Also the government themselves called it emergency law.

In the summer of 1941, when this happened, the German armies seemed invincible.

With astonishing speed the German armies had conquered Denmark, Norway, Netherlands, Belgium, Poland, France, Yugoslavia and Greece. The British succeeded only barely to evacuate their mini-army from the beach of Dunkirk - without heavy weapons. U.S.A maintained their traditional isolationist foreign policy and took no part in the war. Most politicians thought that the communist Russia would collapse more or less by itself under attack by the experienced and well-equipped German armies.

In 1941 there was every reason to believe, that the Third Reich would win the war, and that Germany would be Europe's dominant power well into the foreseeable future.

Under such circumstances it might have seemed very important to maintain some sort of Danish government. It must have looked as the best hope of preserving a kind of Danish sovereignty.

The hope was not unrealistic. The Nazis seemed to have felt a certain veneration with their fellow Germanic peoples in Scandinavia, as they perceived us. Hitler himself had sympathy for the old Danish king.

It may have seemed essential not to get in direct opposition to the Germans. They must to be brought to believe that there was some sort of community between the two peoples. For example, also we could not stand the communists.

The Conviction of the Eastern Front Volunteers in 1945

In the summer of 1945 thousands of surviving Danish volunteers returned home from the German eastern front.

They were all put on trial and accused of treason after a newly made law passed retroactively. The law was backdated to the 9 of April 1940. "... anyone, who had recruited soldiers or has been enlisted as soldiers in German military service, shall be punished with imprisonment", the law stated.

Laws passed retroactively are generally regarded as a breach of law and order. They are in legal terminology called "Ex post facto laws." One cannot say, that laws rule a nation, when the laws will only be made after the events have taken place and adapted according to whom, the rulers want to punish. For example, it was an offence to have been a volunteer in German military service, while it was not a criminal offence to have been voluntary soldier in the Finnish Winter War or in the Spanish Civil War.

The conviction of the Eastern Front volunteers was a prerogative, which the executive power used - to the best of the people - an emergency law, although the government did not use this term.

The reality was, that the war did not develop as Thorvald Stauning and his ministers feared back in 1941. Germany did not become the dominant power of the world.

The United States entered the war with its immense resources and production potential. Against all expectations the Soviet Union mobilized enormous quantities of men and weapons and drove the Germans back all the way from Stalingrad to Berlin.

In the last days of the war the British warplanes attacked Danish ships and trains, just as they attacked ships and trains in Germany. Denmark was an enemy nation, and the Allies could not see the big difference between Denmark and Germany. The Russians conquered the island of Bornholm, in the same way as they had captured East Prussia, Pomerania and Brandenburg.

The Allied powers had taken all the Danish ships, they could get, as legal booty, captured from the enemy.

Denmark had a serious image problem. We were internationally regarded as a kind of ally of the defeated Germany.

It was very important to be recognized as a western ally, an opponent of the German war effort.

As part of the solution, the government decided to sacrifice the returned volunteers from the Eastern Front.

The returning soldiers were deeply serious and determined young men, who had let action follow their words. Most had signed up to fight communism. They were highly praised for their bravery during the fierce fighting in Russia.

But the situation called for sacrifices for the sake of the nation.

On the 29 of June 1941, a week after the German attack on the Soviet Union and the internment of the communists, "Free Corps Denmark", an independent Danish military corps, was formed. Its purpose was to fight communism.

About 6000 young Danish men volunteered to fight against the Soviet Union. They were almost all sent to the eastern front, where about 2,000 perished.

The volunteers had every reason to believe, that the government and the official Denmark stood behind them in their decision.

The Secret Files

During the fifties it became known that the Danish intelligence agency maintained secret files on possible political dissidents.

Secret files on citizens, who had not been guilty of any wrongdoing, is a typical preventive measure, which clearly contradict the direct letter of the Basic Law, article 77: "Everyone is entitled to, in print, in speech and writing to publish his thoughts, taking responsibility in face of the courts. Censorship and other preventive measures shall never again be re-introduced."

The executive power has never defended this breach of the constitution. They simply avoid discussing it. It is a prerogative that they have acquired - for the best of the society.

The people have never seriously objected to the files. Most people know that these kinds of measures are necessary, especially in these terrorist times. The citizens have generally had confidence that the executive branch of power would not abuse them.

As Locke wrote, the people are not overly preoccupied with petty theoretical details, "the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative, whilst it is in any tolerable degree employed for the use it was meant, that is, for the good of the people", "the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that." (Sec. 161)

Statements by successive ministers of justice plentifully document the existence of the secret files.

Minister of Justice, Hans Hækkerup, spoke to parliament in 1964 saying that "any kind of suspicious activities" was recorded.

A Good Prince Cannot Get too much Power

"For a good prince, who is aware of the trust, that is placed in his hands, and is careful with the best of his people just cannot have too much prerogative, that is, the power to do good." wrote John Locke (Sec 164)

Laws, democracy and human rights are good things that we are great supporters of. But such ideas should not be ends in themselves. They are just means and tools that the people can use to check the executive power, when necessary.

The real purpose of all government is the best of the people - that is, for our part, the Danish people's best interest.

Locke wrote of the executive power's right to exercise leadership: "This power, whilst employed for the benefit of the community, and suitably to the trust and ends of the government, is undoubted prerogative, and never is questioned: for the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative, whilst it is in any tolerable degree employed for the use it was meant, that is, for the good of the people, and not manifestly against it: but if there comes to be a question between the executive power and the people, about a thing claimed as a prerogative; the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that question." (Sec. 161)