Inquiries as Accountability Mechanisms in Times of Emergency

Abstract

The Emergencies Act provides for a series of accountability mechanisms to compensate for the fact that a declaration of a state of emergency by the executive branch bypasses normal democratic processes, institutions and deliberations. One such accountability mechanism is the requirement in section 63 that an inquiry “be held into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.” However, as currently drafted, section 63 is a source of considerable ambiguity, making it difficult to achieve the accountability objectives of the Emergencies Act. More precisely, it does not indicate that the inquiry must have appropriate powers or that it must be public or independent. The purpose of the inquiry is not clear, nor is it clear whether the government is authorized to further specify its mandate. And it is given a very compressed time frame to complete its work. In what follows, I discuss how these ambiguities open the door to the politicization of the inquiry, and suggest possible amendments to the Emergencies Act to strengthen this accountability process that is essential in a democracy governed by the rule of law, particularly in times of emergency.