Abstract
This article analyses the institution of the state of constitutional necessity, with the following findings. State of constitutional necessity arises when the constitution does not explicitly, specifically and definitely regulate the public authority's response to an emergency situation that needs to be addressed.
This is the case of a constitutional gap, which may take the form of a genuine, non-genuine or mixed gap. The mixed gaps will occur most often, given the current state of constitutional law theory, as both the organizational and human rights provisions of the constitution will be called upon to fill the gap.
This filling may take the form, in particular, of the exercise of the prerogative power of a constitutional institution whose activities have been prevented as a result of an emergency situation, without any explicit provision being made for its substitution. However, the power to fill the gap in a state of constitutional necessity is not absolute, as it must satisfy the requirements of subsidiarity, proportionality, purpose-boundness and consistency with public international law.
The state of constitutional necessity then automatically ends when the circumstances giving rise to it cease to exist; however, the actions taken under it are, from the outset, in accordance with the legal order. The state of constitutional necessity must, however, be considered a controversial institution, inter alia, in view of the alleged anormativity, expediency and non-republican character of it, the merely implicit form of empowerment, the questionable necessity of constitutional completion, the problematic relationship of constitutional completion to constitution-making power or the possible risk of abuse and institutionalization of the expanded subject matter of constitutional necessity