Dissociation under Emergency: Comparative Judicial Responses to the.

This paper analyzes the decisions of high courts that have been called upon to rule on the use of post 9/11 emergency powers. Instead of blindly deferring to executive power or refusing to let the constitution bend to the pressures of the times, courts tend to "dissociate." Dissociation involves creating a holding that affirms constitutional principles while crafting a remedy that allows the government to continue practices that seem to have been prohibited by the decision. The paper considers six countries (India, the UK, Canada, Indonesia, the US and Colombia) and shows how deference is no longer the dominant reaction of courts to the invocation of emergency powers and how defiance of executive powers in an emergency can be dangerous to court survival. Dissociation, then, preserves both the constitution and the court until the court can safely enforce the constitution again. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]