THE AGE OF EMERGENCY.

• Author: Roberts, Christopher

TABLE OF CONTENTS I. INTRODUCTION 101 II. WORLD WAR I BRITAIN: THE NATIONAL SECURITY STATE 105 III. WORLD WAR I AROUND THE EMPIRE 117 A. Ireland 117 B. India 119 C. Egypt 121 D. The Rest of the Empire 123 E. Conclusion 127 IV. POST-WAR BRITAIN: THE 'EMERGENCY' 127 V. THE POST-WAR EMPIRE 136 A. Ireland 137 B. India 141 C. Egypt 146 D. The Rest of the Empire 148 E. Conclusion 153 VI. CONCLUSION: LEGACIES AND LESSONS 154 ANNEX 1: KEY PUBLIC ORDER LAWS, REGULATIONS AND ORDERS, 1914-1926 160 I. INTRODUCTION

Around the world today, rights advocates face similar forms of repression. To provide a few examples: In Egypt, a law initially passed to suppress resistance to British control during the First World War is still used to augment the sentences levied against protesters. (1) In Nigeria, the press continues to be subject to criminal defamation laws from the colonial era, (2) and colonial approaches to collective punishment continue to be deployed by the security forces. (3) In India, Section 144 of the Criminal Procedure Code, brought into law under British rule, is extensively relied upon to ban assemblies and to impose onerous conditions on those that are allowed to meet. (4) In Jamaica, a colonial precedent was relied upon in 2018 when the government declared a state of emergency and issued an extensive set of emergency regulations, sharply limiting civil and political rights. (5)

This brief set of examples makes clear that the legacy of the British colonial era lives on in public order legal frameworks throughout the formerly colonized world. It is not immediately clear, however, when these frameworks were initially implemented. From one perspective, such legal orders were continuously under construction over the centuries in which Britain projected its power over far-flung parts of the world. From another, the early nineteenth century can be identified as a period of particular influence. Numerous political and social theorists and historians have highlighted the importance of the early nineteenth century to subsequent public order regimes and approaches to governance, most influentially Foucault. (6) There is no doubt that the transformations that occurred in the early nineteenth century had a profound effect on the nature of public order law, both within European metropoles and in the broader imperial context.

As Hussain has observed, however, while "post-colonial critics... have embraced and been energized by Foucault's work," they "have nonetheless noted the particular omissions of colony and empire from the epistemic shifts he so assiduously sought to document." (7) Bringing the formerly colonized world more centrally into focus helps to highlight the importance not only of the early nineteenth century to the evolution of public order law, but of two later periods as well. One is the period of decolonization, the significance of which has been addressed by several valuable studies. (8) The other is the period during and immediately following the First World War. The extensiveness of the development and spread of emergency law frameworks during the First World War and its aftermath has been inadequately explored to date. As the following account shows, however, the period was one of extensive fertility both in terms of the development of repressive legality and global dissemination. The effects of the legal developments of the period can still be seen when governments of numerous former British colonies around the world engage in the project of ensuring 'public order' today.

This article explores the impact of the First World War and the post-war period on the creation and dissemination of emergency law regimes and related legal orders around the British Empire. The first section explores innovations in repressive legality that took place in Britain over the course of the war. The authorizing legislation employed by the British state was the 'Defence of the Realm Act' ('DORA'). (9) DORA served both to shift the foundations of state legislative authority away from parliament and over to the executive--mimicking, in the process, the executive-driven approach to law commonly encountered in the colonial context--and to enable passage of a vast array of repressive regulations which foreclosed the space for civil and political rights in Britain during the war.

The following section explores simultaneous developments that took place in the broader imperial context. DORA was replicated in India by the Defence of India Act ('DOIA'). (10) Elsewhere around the empire the approach taken was more informal, with martial law frequently declared in the face of one local 'emergency' or another. Even where local authorities stopped short of declaring martial law, the wartime years saw the passage of numerous restrictive laws reminiscent of the regulations implemented under the DORA's authority.

The next section considers developments in Britain in the postwar period, up to and including the general strike in 1926. If the system of legality established under DORA had been solely geared towards the wartime emergency, that system would have been brought to an end with the end of the war. In reality, the DORA system--and even the war itself, as a legal fiction--was extended for years after 1918. When the wartime legal regime was finally ended, it was only because a new framework for emergency rule, under the 1920 Emergency Powers Act ('EPA'), (11) had taken its place. As during the war years, the primary purpose of this regime was not to target external, hostile actors, but rather to suppress domestic dissent.

The penultimate section of this article explores developments across the empire over the same period. The wake of the First World War was a period of extensive conflict. While Ireland gained its independence, elsewhere, mass protests for self-determination, better labor conditions and freedom from restrictive legal regimes were suppressed by force. Around the empire, as in Britain, the post-war years saw the continued deployment of the forms of repressive legality that were put in place during the wartime years, this time targeted at anti-imperialists and freedom fighters. At times, the ongoing utilization of repressive legal regimes took the form of new laws and ordinances replicating wartime approaches, such as the Restoration of Order in Ireland Act ('ROIA') (12) and the Civil Authorities (Special Powers) Act ('CASPA') (13) in Ireland, the Anarchical and Revolutionary Crimes Act (14) in India, and the Emergency Regulations Ordinance (15) in Hong Kong. At other times, the post-war years were characterized by the deployment of de jure or de facto martial law and the use of lethal force, whether in the well-known case of the Amritsar massacre (16) or the little-known reliance on the Royal Air Force to bomb protestors into submission in places as diverse as Iraq, Egypt, India, Somaliland, Afghanistan and the North West Frontier. (17)

The article concludes with a consideration of the legacies of the developments that took place during the First World War and the post-war years. Even a brief examination of approaches to public order legality in the former British Empire makes clear that the development and dissemination of the law during the war and its aftermath continues to inform numerous jurisdictions' modes of responding to mass demonstrations, political dissent, and other challenges to the status quo. Exploring the historical origins of these contemporary legal orders highlights the extent to which the claim that they are justified in order to ensure national security is disingenuous. It is hoped that highlighting the historical roots of such approaches in British authorities' struggles to suppress dissent, be it in the form of labor movements in the metropole or colonial independence movements across the empire, will provide an additional basis upon which advocacy for reform of those laws may be grounded. For now, the age of emergency is still with us.

2. WORLD WAR I BRITAIN: THE NATIONAL SECURITY STATE

   Steps to create a new national security state began before the war. (18) Following what was perceived as a poor showing in the Boer war, (19) a public campaign emphasizing martial prowess swept Britain. (20) A new 'Committee of Imperial Defence' was created, charged with overseeing imperial military strategy. (21) The Directorate of Military Operations, formerly the Intelligence Department, (22) was internally reorganized to provide for greater focus on intelligence tasks, (23) and a new military intelligence section of the War Office, the Secret Service Bureau, was established. (24) The Secret Service Bureau was soon split into two organizations, one (which would eventually become MI5) focused on domestic intelligence, the other (the ultimate MI6) on foreign operations. (25) This expansion in the power of the military state was closely connected to the British military's increasingly assertive role in governing an expanding empire--as Vogler puts it, the growth of the army's powers in Britain was inspired in part by "recent experience of the exercise of extensive powers under the martial law regulations in Egypt and South Africa... [which led] the new military elite--Kitchener, Macready, Wilson, Haig and others--[to] seek greater influence at home." (26)

   In 1911 the Official Secrets Act was passed. (27) The act penalized those approaching, sketching, obtaining or communicating information on "prohibited place[s]" "for any purpose prejudicial to the safety or interests of the State." (28) The act also punished unauthorized communication, retention, or receipt of information, essentially penalizing all non-authorized disclosures of official information. (29) Other sections of the act made it an offense to harbor, allow to assemble, or refuse to disclose information concerning, persons one knew or reasonably suspected had committed or were going to commit an offence under the act, and gave the police...