"What is the nature of the suspension of constitutional procedures under exceptional circumstances in the Iraqi and Tunisian constitutions

Abstract

  Constitutions often stipulate mechanisms for dealing with exceptional and unusual circumstances, aiming to mitigate their negative impacts with minimal losses while upholding the principle of legality for the shortest possible time. Among the most important mechanisms for addressing exceptional circumstances is the suspension of certain constitutional and legal provisions for a specific period, or their temporary disregard until those circumstances subside. This can affect the functioning of constitutional institutions and may even lead to changes in the nature of the existing political system. The theory of exceptional circumstances justifies the imposition of a state of emergency and the activation of exceptional measures by granting the executive branch broad powers to address crises that impede the application of the ordinary principle of legality.

 In this case, the ordinary principle of legality is replaced by an exceptional principle of legality, aimed at ensuring the continuity of public services and maintaining public order. In such exceptional circumstances, guaranteeing human rights and fundamental freedoms is of paramount importance. Therefore, laws limiting the abuses of power by exceptional authorities must be activated through strict oversight to ensure they do not exceed the bounds of legality and to protect the public interest. Exceptional circumstances vary according to the classification of the exceptional regimes and include situations such as states of emergency and the imposition of martial law, as opposed to other exceptional regimes established by specific constitutional provisions.

    These procedures and conditions are based on the principle of ordinary legality. Thus, legality is the cornerstone of guaranteeing the rights and freedoms of citizens in various aspects of social, economic, and political life. Governing bodies cannot impose restrictions on these freedoms except by adhering to applicable legal rules.