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The Constitution of FreedomAn Introduction to Legal Constitutionalism$

András Sajó and Renáta Uitz

Print publication date: 2017

Print ISBN-13: 9780198732174

Published to Oxford Scholarship Online: December 2017

DOI: 10.1093/oso/9780198732174.001.0001

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Constitutions Under Stress

Constitutions Under Stress

Chapter:
(p.416) 11 Constitutions Under Stress
Source:
The Constitution of Freedom
Author(s):

András Sajó

Renáta Uitz

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198732174.003.0012

Abstract and Keywords

This chapter examines how constitutions fare in crisis situations, under stress, with special attention to three disturbing scenarios. The classic form of lifting constitutionalism occurs under the guise of emergency. The official purpose of emergency powers is simple: to restore constitutional normalcy after a sudden shock. The idea that constitutional democracy should be able to defend itself from its enemies also sounds appealing. However, this militant democracy remains ambiguous and an invitation to and justification for abuse of powers. In closing, the chapter considers the rise of the preventive state and its implications for constitutionalism, especially in governments engaged in a war on terror.

Keywords:   constitution, constitutionalism, emergency powers, constitutional democracy, preventive state, war on terror

1 Preliminaries and Antecedents: A Note on Dictators

Constitutions serve to arrange for the safety and survival of a society. Constitutionalism is concerned about the fate of the democratic order. Survival first, but a decent survival. Constitutionalism is made to make democracy survive, and not one political leader (or another).

When a typhoon hits, soldiers help to evacuate civilians; an ebola outbreak triggers quarantines to prevent the spread of the disease; if foreign terrorists plan constant attacks, border guards are on twenty-four-hour alert. The executive branch usually has a prominent (p.417) role in ordering and administering these measures. They may do this with the best intent and not for personal gain (which will happen anyway), simply being convinced that this is what serves, well, survival.

In ancient Rome, a special high office was created to handle the unexpected during wars: a dictator. The office was modelled in part on that of a mighty king and in part on that of a senior military commander. The dictator’s sole task was to restore political normalcy in the face of war. The fear that too much power was concentrated in the dictator’s hands was clear to Romans. Therefore, the dictator could not come from the ranks of the government (consuls), could not spend without the approval of the Senate, and was meant to serve for six months at most. The end of Republican Rome began with the deliberate disregard of its several hundred years old experience by adopting the Lex Titia (43 BCE) that granted five years’ rule to the second Triumvirate, including the power of legislation and judicial appointment. These techniques remain crucial to this day in the undoing of a republic.2

On the pretext of self-preservation, those in office will be tempted to abuse constitutional means of self-defence to perpetuate their own powers or to oppress unpopular political or social groups. In severe cases emergency powers become the everyday means of running government. This was also the chosen means to sustain colonial power. The rule of law is nice to have, but when a conspiracy against the government looms large, this permits ‘the executive power to arrest suspected’ enemies. Montesquieu was quick to add: ‘for a brief and limited time’.3

At a time when emergency situations become more and more difficult to distinguish from normalcy, especially with the global spread of economic crises and the success of international terrorism, the problem is further exacerbated. It is empirically correct that ‘bright-line demarcations between normalcy and emergency are all too frequently untenable’.4 Yet, once the distinctions are given up in law, society becomes defenceless against sheltering power (and they may even like it, at least for a while). In a crisis, signalling a clear violation of the law may be needed, or at the very least those who violate the law will not have the benefit of legitimacy.

Emergency powers have, for a long time, been the ultimate test of constitutional design. According to Carl Schmitt’s weighty half-truth: ‘Whoever rules over the state of exception therefore rules over the state, because he decides when this state should emerge and what means are necessary.’5 Recent experiences with governmental responses to terrorist threats and attacks have inspired arguments in favour of the acceptance of emergency powers as extra- or supra-constitutional by nature, since an alternative conception would result in compromising the premises of constitutionalism and the rule of law.6

The foundational question is whether emergency powers can be governed by general principles of constitutionalism and the rule of law (the Kantian position) or whether emergencies per se require responses which are beyond the confines of liberal constitutionalism (the Lockean position).7 Perhaps constitutional authorization to depart (p.418) from the ordinary is counter-productive as it exempts the executive from ex post responsibility: it acts as a blank cheque and it is attractive for a power-hungry leader. The alternative is that the executive acts at its own peril and, when called to account, it can resort to the defence of emergency. This solution may, however, impose too heavy a burden on the executive which will be reluctant to act with the necessary determination. Finally, the pragmatic response is to allow elements of a special regime, but with all sorts of control, building into the very extraordinary regime affordable elements of the rule of law (see Box 11.1).

In exigencies, constitutional government aims to manage the crisis and to secure the return to constitutional normalcy. Leaving too little room for a government to defend itself from its enemies may easily lead to its destruction. Leaving too much power in the hands of the government (and especially the executive branch) to fend off its real and imaginary enemies, may well make the government destroy itself.

(p.419) 2 Emergencies

2.1 The development of emergency powers: an overview

Emergency situations are many and diverse in kind. They include external attacks, internal disturbances, natural disasters and environmental catastrophes, epidemics, as well as economic crises. Some cease on their own accord relatively rapidly, while others escalate or become saturated at a certain level. In the words of Alexander Hamilton: ‘The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.’11

Contrary to the sense of helplessness that transpires from Hamilton, today the overwhelming majority of the world’s constitutions contain emergency provisions.12 The few constitutions which do not address emergency powers tend to be rather aged (the U.S., Norway, and Canada). Although drafted in the middle of a grave national crisis, the U.S. Constitution does not cover emergency powers in detail, it only mentions rebellion or invasion as a reason for the suspension of the writ of habeas corpus by Congress (Article I, Section 9, Clause 2).

When regulating emergency powers, constitutions use a rich terminology13 (e.g. martial law, state of defence, state of tension, state of siege/état de siège, state of emergency; these are referred to hereinafter as emergency powers).

Constitutional emergency powers have been used regularly and without principled objection to address natural disasters and economic crises. In the global recession after World War I and in the 1930s, governments in Western democracies used regulatory powers to stabilize national economies, justifying the departure from normalcy by the extremity of the situation (see Box 11.2).

Legal rules granting emergency powers to the executive branch predate modern constitutions. The French Revolutionaries passed a law in 1791 to authorize military officers to take over the running of fortified places in the event of an armed attack (state of siège).14 This law inspired the regulation of a political (i.e. not military) state of siège in 1797, an opportunity which was widely abused to perpetuate absolute power and terror. State of siège had been ultimately regulated in 1878 during the Third Republic. In sharp contrast with the Weimar model, the French approach was based on legislative supremacy: the declaration of the state of siège was approved by the legislature and the recipient of the emergency powers (the military) did not receive sweeping emergency rule-making powers.

In contrast, the British Empire has been a significant source of potent executive emergency powers. The common law envisions emergency powers (martial law) as a dormant aspect of the prerogative powers, which is activated by pressing circumstances, to the (p.420) (p.421) extent necessary and in line with principles of the rule of law.19 This simple, self-confident approach was not considered to be suitable for the colonies where the holders of imperial executive powers were thought to be exposed to all kinds of dangers from local populations (people who did not get much of a say in the laws which were applied to them and were prone to revolt). As a result, in the colonies executive officials received vast emergency powers, including sweeping executive regulatory powers. In turn, these arrangements were preserved in post-independence constitutions, with far-reaching consequences both for the perception of executive powers and for the exercise of emergency powers (see especially India and Pakistan).20

In most general terms, today emergency powers come in two basic constellations: either the executive branch gets authority to handle emergencies at its discretion (‘executive model’), or the legislature is empowered to design, introduce, and oversee an emergency regime which is then applied by the executive (‘legislative model’).21 (See further in Box 11.3.)

The standard depository of emergency powers is the executive, although as an alternative, Hungary’s Fundamental Law grants emergency powers to a National Defence Council comprised of the President of the Republic (chair) and the Speaker of Parliament, the leaders of parliamentary fractions, the Prime Minister, the Cabinet, and—with the right of consultation—the Chief of Staff of the National Defence Forces (Article 49(1)).

The U.S. ‘solution’ is somewhat exceptional, as emergency is not regulated in the Constitution (except for elements of a war and a situation of insurrection). In practice, U.S. Presidents were seen invariably to invoke their powers as commander-in-chief of the armed forces and of the state militias as well as their general power to ‘faithfully execute the laws’ to justify extraordinary measures taken at the time of exigency.22 Before the Civil War (1861–5) Presidents sought authorization from Congress in emergencies, while during the Civil War, President Lincoln relied on inherent presidential powers under the Constitution (see Box 11.4). In the last twenty years Congress has granted broad permanent ex ante authorizations to Presidents, within the modest limits set by the Constitution which have limited applicability even on U.S. soil.

Quite often the emergency-like situation originates in a war outside the U.S. (with the important exception of the Civil War). The U.S. practice illustrates how quickly the constitutional order can be undermined.

A military engagement abroad has obvious impacts at home. The Alien and Sedition Acts of 1798 were passed under the pretext of an undeclared naval war with France, enabling criminal action against the political enemies of the Federalist Party in power. The Sedition Act of 1918 (enacted in response to World War I) served to restrict speech to such an extent that Justices Holmes and Brandeis (dissenting) found it to be possibly in violation of the First Amendment.23 Nevertheless, during the Korean War (1951–53) the Supreme Court refused the presidential extension of the ‘theatre of war’ to the homeland through the President’s powers as commander-in-chief, ordering seizure.24

(p.422) (p.423) (p.424) One can understand judicial deference to military operations which are clearly beyond their understanding and responsibility. But the military or other emergency authorities will use their powers even where there is no military necessity and will restrict rights for purposes unrelated to military considerations. The Japanese relocation orders during World War II in the U.S. were clearly driven by the racial prejudice of the military commander in charge. In a comparably fatal instance of judicial deference in the U.K., in Liversidge (below) Lord Macmillan stated:

a court of law manifestly could not pronounce on the reasonableness of the Secretary of State’s cause of belief unless it were able to place itself in the position of the Secretary of State and were put in possession of all the knowledge both of facts and of policy which he had. But the public interest must, by the nature of things, frequently preclude the Secretary of State from disclosing to a court or to anyone else the facts and reasons which have actuated him.34

This is a classic Catch-22 situation: there will be no way of knowing what should have been known in the first place.

The mixture of the sole guardian of the constitution, and also the person responsible for making the legal system work and protecting the territorial integrity of a country in the single person of the President is a mighty potion. In 1995 the Russian Constitutional Court held in the Chechnya case35 that the President as the guarantor of the Constitution (Article 80(2)) with powers extending throughout the territory of the Russian Federation (Article 78(4)) could make decrees (Article 90(3)) to protect the integrity and inviolability of the federal territory. The Constitutional Court refused to assess whether the emergency (counter-terror) measures taken by the President were necessary, despite allegations that the military intervention ordered by President Yeltsin resulted in mass human rights violations.

The constitutional regulation of emergency powers is premised on the underlying assumption that emergency is introduced as a temporary measure to restore constitutional normalcy. In contexts where emergency powers are seen by those who seize or hold on to them as the means of establishing or—even worse—maintaining an envisioned constitutional normalcy,36 much of the discussion on the constitutional boundaries of emergency powers becomes futile. Emergency powers are indeed the perfect means to redefine the fundamentals of a constitutional regime and to keep these new foundations in place for a long time (see Box 11.5).

2.2 Can the abuse of emergency powers be prevented, or at least halted?

Emergency powers are meant to be temporary and should ultimately aim to restore constitutional normalcy. The constitutional allocation of emergency powers may make considerable difference to preventing their abuse. The critical points for constitutional regulation of emergency powers are:

  1. (a) the constitutional definition of emergency situations;

  2. (b) the procedure for declaring an emergency (who and when can proclaim it, and how can a proclamation be prevented, if at all);

  3. (c) particular measures which may be taken and which are forbidden in an emergency situation;

  4. (p.425) (d) the length of an emergency period, and the conditions of its extension;

  5. (e) follow-up procedures to review and end emergency measures.

2.2.1 Constitutional definition of emergency situations

The International Covenant on Civil and Political Rights (ICCPR) broadly defines an emergency as a situation which ‘threatens the life of the nation’ (Article 4), to which the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) adds a reference to war (Article 15(1)). National constitutions are usually more specific and typically mention the specific scenarios of external attacks, internal disturbances, and various natural phenomena which endanger the operation of constitutional institutions or threaten the constitutional integrity of the entire state, or a unit in a federal state. When the danger of any such event is meant to give rise to emergency rule it is important to insist in the constitution that the threat of an attack should be imminent, and not only a remote or generic possibility. Some constitutions envision multiple distinct types of crisis with different response mechanisms (e.g. France, Germany, Hungary, India, Pakistan, and Spain). Such a multi-layered approach permits differentiation between the types and intensities of measures which are made available to the government in times of crisis.

2.2.2 Declaration (proclamation) of emergency

A declaration (proclamation) of emergency is usually a simple statement taking note of exceptional events. The overall characteristics of the system of government do not appear to determine automatically the constitutional allocation of emergency powers: the legislative branch may well be the ultimate master of declaring an emergency, or have a strong (p.426) voice in the matter in presidential regimes (e.g. Argentina, Brazil, Bolivia, or Mexico). In constitutions where the legislature does not have the power to declare an emergency, legislative control over the executive’s initial emergency proclamation may be retained in the form of a legislative approval of the original proclamation immediately or without significant delay. Table 11.1 shows the most frequent constitutional modalities.

Table 11.1

Strong legislative control

Legislature declares emergency with supermajority

E.g.

Croatia, Article 17

Germany, Articles 91, 115A

Hungary, Article 48

Legislature declares emergency by simple majority

E.g.

Argentina, Article 75(29)

Bulgaria, Article 84

Estonia, Article 129

Greece, Article 48

Executive with prior legislative authorization

E.g.

Brazil, Article 137

Spain, Article 116(3)

Executive declares emergency, followed by immediate legislative approval

E.g.

Azerbaijan, Article 112

Bolivia, Article 138(I)

Chile, Articles 40–41 (legislative silence is approval!)

Czech Republic, Article 5

Fiji, Article 154

Ghana, Article 31

Mozambique, Article 285

Netherlands, Article 103(3)

Paraguay, Article 288

Poland, Article 231

Romania, Article 93(1)

South Korea, Article 76

Turkey, Article 121

Executive declares emergency, which the legislature prolongs after considerable initial period

E.g.

Afghanistan, Article 143

Algeria, Article 91 (no constitutionally specified period)

Benin, Article 101 (after fifteen days)

France, Article 36 (state of siege)

India, Article 353

Kenya, 2010, Article 58(4)

Malawi, Article 45 (after twenty-one days)

Pakistan, Article 233(7)

Paraguay, Article 288

Senegal, Article 69

Slovenia, Article 81 (six months)

Zimbabwe, Article 113(2) (after fourteen days, with a super-majority vote in a joint sitting of the two houses)

(p.427) Executive declares emergency with nominal consultation

E.g.

France, Article 16

Madagascar, Article 61

Mali, Article 50

Morocco, Article 59

Peru, Article 137

Tunisia, Article 80

Strong executive control

Executive declares emergency and informs the legislature (no approval)

E.g.

Kazakhstan, Article 44(1)(16)

Latvia, Article 62

Russia, Article 87(2) (martial law) and Article 88 (emergency)

Ukraine, Article 106

From the perspective of checks and balances, the minimum expectation is that the power to declare an emergency will not be held by the constitutional branch which is destined to receive emergency powers as a result. Crudely: the president to receive emergency powers should not be deciding to declare an emergency as (and when) he sees fit. Despite the tragic Weimar experience to this very effect, there still remain constitutions which allow this approach (on France see Box 11.1, Chapter 12, 1).

2.2.3 Emergency measures

As a precautionary measure, some constitutions state the purpose of emergency powers expressly (i.e. to restore constitutional normalcy40) and also make executive emergency decrees exceptional in clear terms. The Constitution of South Korea provides that presidential emergency decrees may be issued ‘only when it is required to preserve the integrity of the nation’ (Article 76(2)).41 Even more directly, the Polish Constitution prescribes that emergency decrees ‘shall be intended to achieve the swiftest restoration of conditions allowing for the normal functioning of the State’ (Article 228). In addition, constitutions which insist on parliamentary supremacy during an emergency tend to limit executive decrees to those brief periods when the legislature cannot be convened.

The standard toolkit of emergency measures includes exceptional rule-making (usually in the form of executive emergency decrees) and extraordinary limitations on fundamental human rights. Where such measures are taken at the executive’s sole discretion or are selected from a set of options previously drawn up by the legislature in advance, the application of these measures in a concrete case is only subject to external (legislative or judicial) control after the fact. As a result, modern constitutions tend to include specific provisions to exclude certain options from the realm of possibilities even during emergencies. The prohibition of constitutional amendments is a typical example of such limits. (p.428) In addition, the Polish Constitution also prohibits the amendment of election laws (Article 228).

Even when they grant wide emergency powers to the executive, many constitutions from Argentina to Tunisia insist on the continuing operation of the legislature. Constitutions invariably require convening the legislative assembly, protecting it from dissolution during the emergency, and often keeping it in session even after the regular parliamentary term would have run out. The German Basic Law also keeps the President and the Constitutional Court in office until the end of the emergency (Germany, Article 115E(1)). (See further in Box 11.6.)

Exceptional limitations on fundamental rights are routinely associated with emergency rule (see Box 11.7). Historically the limitations of free speech were meant to enable wartime censorship, so as to prevent the enemy from gathering intelligence from newspapers (see e.g. the Sedition Acts of 1917 and 1918 in the U.S.). Relaxed due process guarantees often give way to pre-trial detention without limits and trials by courts martial, while lifting rules of search and seizure is historically understood to permit authorities to search for traitors in private homes without delay and to open private correspondence. Curfews and house arrest imposed in an emergency impose limitations on freedom of movement, while restrictions of freedom of assembly allow for the suppression of street protests. Limitations of private property are meant to enable requisitioning for public purposes without prior compensation in order to enable swift and competent governmental responses. More recently, the monitoring of electronic correspondence and cell-phone data, as well as access to electronic data without the regular guarantees against illegal searches and seizure entered the arsenal of emergency measures.44

Constitutions and international human rights instruments tend to carefully define those exceptional limitations that can be imposed on fundamental human rights in an emergency (often known as derogation) both regarding their scope and also their intensity.45 Rights which cannot be subjected to special limitations even in times of emergency are often known (p.429) as non-derogable.46 Under Article 4(2) of the ICCPR these include the right to life; the prohibition of torture, cruel, inhuman, or degrading treatment or punishment; the prohibition of slavery; the prohibition of ex post facto criminal law; and freedom of religion or belief.

Irrespective of the form in which emergency measures are prescribed, international human rights law expects emergency measures be proportionate or even ‘strictly required by the exigencies of the situation47 to the situation they are responding to, a requirement which has found its way to national constitutions (e.g. Poland and South Korea). In practice, the proximity of a crisis situation and a response ultimately depends on the executive’s assessment of the situation at hand.

Several constitutions outline specific mechanisms to prevent the abuse of emergency powers. A strong form of legislative control is established in Germany where Parliament’s lower house may repeal measures enacted by the Joint Committee exercising emergency powers (Article 115L(1)). More often, constitutions provide for the judicial control of emergency measures, granting power either to the constitutional court (Colombia) or the supreme court (e.g. Kenya and Mexico) to assess the constitutionality of the declaration of emergency as such, and its extension, as well as of individual emergency measures. At the other end of the spectrum Turkey explicitly insulates emergency measures from judicial review (Article 148).

There is little judicial protection can do against the repeal of judicial control against coercive measures like detention. At a minimum, judges may be ready to review whether the power exercised corresponds to the authorization which, being drafted often in haste, is vague and ultra vires. In these instances, the executive has to return to the legislature to correct the mistake (a good reason to have a conveniently sitting legislature in place, formally a safeguard against emergency abuse). Of course, the legislature is likely to enthusiastically endorse the patriotic proposal, except if there is a pre-existing political divide between the executive and legislative majority.48

One would expect that in such instances the judiciary has a constitutional vocation to stand as the last bulwark of constitutionalism, the rule of law and the protection of fundamental rights (see Box 11.8). As envisioned in the dissenting speech of Lord Atkin of the House of Lords in Liversidge v. Anderson: (p.430) (p.431)

In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.51

Contrary to what the Liversidge and Korematsu majorities were willing to believe, executive expert knowledge and confidentiality interests do not pose insurmountable difficulty for a judge. The Supreme Court of Israel (per President Barak) found humanitarian law applicable even where it recognized the authority of the military commander and accepted his good faith evaluation of the military situation (a matter of legality control). The Supreme Court followed rule of law precepts in ‘real time’ during military operations.52

2.2.4 Length of an emergency regime and conditions of its extension

A state of emergency is meant to be temporary by definition. The special legal order and the restrictions on fundamental rights should not last longer than necessitated by the conditions which triggered the declaration of emergency, and should aim to restore constitutional normalcy.53 As the history of the extension of the 1961 presidential emergency in France indicates, presidents may be tempted to use the power extensively and judicial control, if it exists, is belated (see Box 11.1, above).

We hasten to add that here too the reference to fluidity or complexity is the argument of deference that does not wish to take risks against the evaluation provided by the executive in charge of the management of the emergency situation. Emergencies are quite different. Often it may not be clear when an armed conflict ends: irregulars continue their attacks even after a territory is under formal control. Once a coup has been averted, there is little risk of repetition, so it is easy to see the possibility of abusing the power to extend the emergency claiming that these measures are needed to unmask a vast conspiracy. Due to the very fluidity of the situation emergency powers are meant to respond to, it is really difficult to predict how long such measures will be needed. This is why some constitutions permit a relatively brief initial period of emergency rule by the executive which may then be extended by the legislative.

(p.432) Exactly because emergency rule is so easily extended, Professor Bruce Ackerman suggested a ‘supermajority escalator’ which would require ever-larger majorities in the legislature to prolong emergency powers.54 This solution was adopted in the new Kenyan Constitution, wherein the initial presidential declaration of emergency is to be prolonged by increasingly larger parliamentary majorities (Article 132(4)(d)). The escalator approach is meant to ensure that the executive continues to enjoy broad support in legislatures for its continued exercise of emergency powers. The fear, however, is that the increasingly demanding majority requirement will enable smaller and smaller minorities in the legislature to oppose the executive.55

2.2.5 Follow-up procedures

Once the period of emergency comes to an end, taking stock of emergency measures begins. The legality and constitutionality of legal rules enacted and adopted during the emergency period needs to be assessed. The elegant solution, of course, is to say that emergency decrees lose force when the emergency ends (e.g. Singapore, Article 150(6)).56 In countries where emergency decrees can amend statutes such an automatic rule may not be practicable.

Contemporaneous judicial review of the declaration of emergency is a possibility in some countries, especially as far as the derogation from human rights is concerned, but experience shows that this is understandably extremely deferential. Judicial review after the lifting of emergency primarily has educational benefits: it sets the standards for future events.

Despite the familiar reluctance of courts to review the declaration and exercise of emergency powers, there are notable exceptions to the contrary (see Box 11.9 on Colombia). (p.433) In 1994, the Supreme Court of India reviewed the declaration of emergency the President of the Union imposed on several states in the aftermath of the religious riots on account of the demolition of the Babri mosque in the city of Ayodhya.59 While the riots did spread to several states, in other states it appeared that the imposition of ‘President’s rule’ (as emergency powers under Article 356 of the Constitution are known) served the removal of local legislative majorities which were antagonistic to the party ruling the federal government.

The legislative process requires the executive to account for its performance during an emergency in an open public deliberation. The element of transparency helps political accountability, even if only on the longer run—assuming that there is a return to substantive democracy after the emergency experiment.60 In the constitutional vision, the combined effort of the three branches of government may prevent lasting scars on the constitutional fabric. In the words of Professor Michael Ignatieff:

Anyone can assemble a depressing picture of democratic failure since 9/11: a cowed press, a timid legislature, an overly deferential judiciary, all unable to stop the relentless accumulation of secret power by the executive branch, and this in all of our democracies, not just the United States. This picture is true: the chief danger to democratic government posed by terrorist emergencies is that they favor secret, as opposed to open, government, and provide the justification of unchecked executive power. But if this is true, what is the solution? I can see only one: more democratic scrutiny, more adversarial justification, more open government, not less.61

3 Militant Democracy

Emergencies are not the only events which trigger a self-defence reaction from modern governments. The abuse of the democratic process creates a crisis for the democratic order. A special instance of constitutional self-defence, known as ‘militant democracy’ contemplates extraordinary preventive action against those enemies of democracy who seek to destroy it through using fundamental rights and political representation to gain access to political power to the exclusion of all others. The attitude of these abusers of the opportunities of democracy was summarized by President Erdogan, at that time mayor of Istanbul: ‘Democracy,’ he declared, ‘is like a tram. You ride it until you arrive at your destination, then you step off.’62

The underlying paradox of militant democracy measures is easy to grasp: they seek to limit access to the political sphere and limit fundamental rights in order to preserve the diversity and competitiveness of the political discourse even in the face of popular support for the political actors which are about to be excluded. The fact that militant democracy measures are preventive adds a further twist: the holders of constitutional powers attempt to catch wrongdoers before the fact, in light of a threat assessment.

Militant democracy measures are meant to be exceptional and tailored to the exigencies of a particular situation. As the rhetoric and arsenal of constitutional self-defence is (p.434) increasingly mobilized against threats of all kinds, from extremist populist parties to religious fundamentalists and also in the face of terror threats, the concept of militant democracy becomes ever more fluid.

In the early days of the Weimar Republic, in response to extreme right-wing political assassinations the Republikschutzgesetz (Law on the Protection of the Republic, 1922) did allow the dissolution of political organizations and other preventive measures. On the basis of a series of preventive restrictions applied in a number of countries against extremist movements, the German political scientist Karl Löwenstein developed a concept of constitutional self-defence. This concept of militant democracy posited a democracy which actively defends itself from its enemies, using even illiberal means (see Box 11.10).

While the measures which were invented failed in many countries (perhaps because of under-use) after World War II the drafters of the German Basic Law constitutionalized the concept of militant democracy (streitbare Demokratie). Political parties must have a democratic internal organization (Article 21(1)), a requirement which does not follow by definition from freedom of association as a fundamental right. Article 21(2) of the Basic Law also provides:

Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.

This clause is not subject to amendment.64 In addition, civil servants are to take (and observe) an oath of loyalty to the constitution. Over the years such measures have come to be routinely associated with constitutional self-defence. Although the German Basic Law (p.435) also gives citizens the right to resist anyone ‘seeking to abolish this constitutional order, if no other remedy is available’ (Article 20(4)), and includes a clause permitting the forfeiture of select basic rights from those who use them to undermine the Basic Law’s free democratic basic order (Article 18), these components of the militant democracy toolkit are less known outside Germany.

In Germany, it was for the Constitutional Court to explain that there was more to banning particular political parties than eliminating unwanted players from the political scene.65 Accordingly, the protection of the free, democratic basic order in Article 21(2)

excludes any form of tyranny or arbitrariness and represents a governmental system under the rule of law, based upon self-determination of the people as expressed by the will of the existing majority and upon freedom and equality. The fundamental principles of this order include at least: respect for human rights given concrete form in the Basic Law, in particular for the right of a person to life and free development; separation of powers; responsibility of government; lawfulness of administration; independence of the judiciary; the multi-party principle; and equality of opportunities for all political parties.66

The sentiment that certain political ideologies are not welcome on the political scene of a constitutional democracy is not unique to Europe.67 During World War II, the Australian government banned ‘subversive associations’ (including communist publications and the Jehovah’s Witnesses) as a national defence measure.68 After World War II, with the beginning of the Cold War in the U.S., Republican Senator Joseph McCarthy conducted an infamous exercise attempting to cleanse the public sphere from communists. These attempts targeting particular political ideologies for national security reasons or seeking to remove the previous ruling party are to be distinguished from militant democracy,69 so long as they are not driven by a higher concern for protecting the integrity of a democratic constitutional order.

More recently, mechanisms of constitutional self-defence have been used to tackle—invariably—extremist political movements, religious fundamentalism, domestic and international terrorism, and other threats allegedly imperilling the integrity of political communities. What unites these threats is that they ridicule constitutional democracy as a platform of rational political deliberation and seek to replace it with political emotionalism, although political emotionalism is more and more acceptable to less extreme political movements too.70 The lure of taking preventive action against potential evil is hard to resist, especially for those in power. It is precisely this invitation to rely on exceptional powers and to avert potential, though undefined, future threats that makes such preventive mechanisms suspect for defenders of constitutionalism (see Box 11.11). But the (p.436) issue is a serious one. Emotionalism is contagious: ‘Twenty-four European regimes could be considered democratic around 1920. By 1939, the number of democracies had decreased to eleven; in the remaining thirteen states, some form of autocratic rule had been established.’74

The German-style protection of the free democratic basic order from political parties was followed in South Korea, complete with trusting the Constitutional Court expressly with the dissolution of offending political parties (Article 8(2)). Numerous other constitutions (Chile, Morocco, Turkey, etc.) around the world protect the constitutional order, rule of law, fundamental rights, and democracy in similar terms (see Box 11.12). These clauses are more comprehensive than the constitutional prohibition on parties aspiring to a violent takeover of power (e.g. Chile and many post-communist constitutions) or more specifically, the ban on the formation of military or paramilitary organizations for this purpose (Italy, Spain, etc.). The latter clauses were initially inspired by the experience with fascist parties and their paramilitary wings, and extended to religious fundamentalist movements (see e.g. Egypt). In practice, the military wings of parties are not always easy to tell apart from their political operatives.75

(p.437) Party bans may serve aims other than militant democracy, such as the unity of the state, the integrity of the nation, or another element of the constitutional order where there is actual conspiracy. The militant democracy concept applies where the measure intends to prevent a situation where a potentially anti-democratic movement will take over power by democratic means, often propagating anti-democratic and anti-constitutional ideas under the shield of free speech. In some of the cases, these provisions go hand in hand with prohibitions on ethnic, linguistic, racial and tribal parties, or religious parties. These clauses have been particularly popular in sub-Saharan Africa since the 1990s constitutions. Likewise, some post-communist Central and Eastern European constitutions specifically target political parties which promote racial or ethnic hatred or violence more specifically.77 The Danish and Portuguese constitutions envision the prohibition of all parties encouraging (or resorting to) violence, even if it is not subversive or racist. The Bulgarian Constitution provides that there shall be no political parties on ethnic, racial, or religious lines (Article 11(4)).78 While this is sensible for conflict prevention, bans on ethnic parties seriously limit the legitimate political representation of ethnic minorities.

Political parties which are associated with violence, at times with terrorist acts, present a special practical challenge for supporters and theorists of militant democracy:

[I]t cannot be ruled out that an organisation’s programme may conceal objectives and intentions different from the ones it proclaims. … . An essential factor to be taken into consideration is the question whether there has been a call for the use of violence, an uprising or any other form of rejection of democratic principles.79

In the judicial assessment of a party ban, the old-fashioned threat assessment is replaced by an inquiry into the proximity of actual violence and the members of a political party. Most recently courts in Israel, Spain, and Turkey have grappled with whether the failure of a party to condemn terrorist acts by a movement or actors in its political family amounted (p.438) to reasons for banning a party. As the European Court of Human Rights (ECtHR) said in the case concerning the dissolution of the Basque independence party, Batasuna, in Spain:

81…. a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent….

82…. A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d’être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy.80

The ECtHR agreed with the Spanish Constitutional Court that Batasuna’s ‘refusal to condemn violence against a backdrop of terrorism that had been in place for more than thirty years and condemned by all the other political parties amounted to tacit support for terrorism’.81 The ECtHR, however, did not find similar compelling evidence in the case of Turkey’s banning of a Kurdish party (Democratic Society Party, DTP). Contrary to the assessment of the Turkish Constitutional Court, the ECtHR ruled that the failure of the DTP’s leaders to distance themselves from the acts of Kurdish terrorists had a limited impact on public order or the rights of others.82 This stance resembles the one taken by the Supreme Court of Israel when it refused to ban deputies from running for parliament on the basis that they supported armed struggle against the state of Israel (the Bishara affair).83 In reaching this conclusion, the Supreme Court’s majority decided to read a freshly enacted constitutional provision seeking to prevent parties which support terrorist acts or organizations narrowly (Basic Law: The Knesset, Article 7A). Letting the deputies in question run for re-election permits them to fight for their ideals inside the legislature.

Religious parties (and religious organizations) which promote values that are not compatible with the idea of a plural constitutional democracy make self-defending democracies anxious, as they challenge the concept of a constitutional regime respecting fundamental human rights and equality before the law at its core. Prohibitions on religious parties are often automatically included in constitutional clauses which ban ethnic parties without separate justification. Sometimes the prohibitions on religious parties or religious references in party names reflect more general concerns (antagonism) about a potentially dominant church (e.g. Mexico (Article 130), Portugal (Article 51(3))).

The core of the debate on the place of religious parties in a constitutional democracy was outlined by the ECtHR in a Turkish case concerning the constitutionality of the Welfare Party (Refah Partisi). The Refah Party was banned because it was not compatible with the ideal of Turkey as a secular state (see Box 11.13, below).

Tolerance might become suicidal in certain political circumstances. It disregards the truism that Goebbels noted and abused with pleasure: ‘This will always remain one of the best jokes of democracy—that it gave its deadly enemies the means by which it was destroyed.’ Nonetheless, the creation of a ‘special’ constitutional regime for constitutional (p.439) self-defence has its inherent problems because ‘[w]hat should be an exceptional measure functions in fact as a regular one’.86

The experience with militant democracy is not convincing as to its efficiency, and it was efficiency that dictated the introduction of such a regime into liberal constitutions in the first place. To date, the measures seem to work only in countries where there were no serious threats to democracy originating from the emotional politics of totalitarian mass movements, while they turn out to be a most useful tool to destroy constitutionalism in (p.440) the hands of illiberal political forces which seek to undermine political pluralism and constitutional democracy.

4 Erosion of Constitutionalism: The Rise of the Preventive State

Since the terrorist attacks in New York on 11 September 2001 the threat of terrorism has become a worldwide constitutional problem in its own class. Emergency powers and militant democracy measures are only the tip of the iceberg in the arsenal.87 The counter-terror state operates as a preventive state, where the state acts ‘as preventer of crime and disorder generally’.88 Once a measure can be couched in terms of being preventive and administrative, the panoply of guarantees developed for criminal punishment becomes inapplicable (see e.g. forfeiture).

When the sense of threat becomes pervasive, governments apply measures on all citizens and residents to determine who are potentially dangerous, while the standards of assessing the constitutionality (or at least permissibility) of these measures vanish before our eyes. ‘Coercive measures before the fact’ (typically preventive detention) are highly controversial in and of themselves. In addition, governments demand authorizations of general surveillance over all residents and not only of those who are allegedly connected in any way or sense to the presumed or potential (possibly different from actual) ‘terrorist’.

Once the presumption of danger is in place, the citizen will have to prove the absence of risk in order to make a liberty claim. This is clearly the opposite of the fundamental assumption of ordered liberty (and of the presumption of innocence). Still, the public seems to be increasingly ready to trade freedom for a promise of security.89 After all, government is about public safety and security and in many welfare states, especially in Europe, public opinion expects government to guarantee social security on a preventive basis.

The social and hence legal understanding of security is perceived from the vantage point of security agents. They promise privileged spaces of freedom in security in exchange for letting rights restrictions be applied to the ‘outer’ spheres. In this logic, border controls are reintroduced or reinforced, so that the national territory can become a sanitized sphere for freedom. Shops do security screenings and searches (where the owner can afford it) to be able to enjoy the freedoms of consumption. The freedoms of others, like the accused and the suspect, are also curtailed for other people’s freedom in security. For some, security is the first liberty; security is a right. Individual security is then replaced by the security of the government understood as state security. This is antithetical to constitutionalism which was built on suspicion about the nature of government power and finds little empirical ground to believe the argument that good men have nothing to (p.441) fear from the police. It is a version of Tocqueville’s vision: he has ‘always thought that servitude of the regular, quiet, and gentle kind which I have just described, might be combined more easily than is commonly believed with some of the outward forms of freedom; and that it might even establish itself under the wing of the sovereignty of the people’.90 Here servitude is in the acceptance of the regular and quiet, though not that gentle, means of security.

Do these measures go beyond what is acceptable in a constitutional democracy? We do not know, as we are not provided with sufficient information under the pretext that access to information will endanger security and lead to unnecessary panic. Besides, even at the risk of courting relativism, there is little absolute in constitutionalism and there is no one single pattern of the unacceptable. But if there will be a need for a special constitutional regime for a counter-terror state, its first rule should be that the government has a duty to show that the restrictions of liberty are actually necessary. In this regard, the experience of militant democracy remains relevant, although the magnitude of restrictions in a counter-terror state far exceeds those measures contained in the toolkit of militant democracy which is a party (movement) and election-centred concept. In a counter-terror state, the uncertainty regarding the occurrence of an attack is greater and different. At the same time, at least in the operative stage of counter-terror measures, the restrictions on freedoms are much less prone to public discussion.

Fifteen years into the ‘global war on terrorism’, at a time when the originally highly contentious and still misleading term became habitual, the arsenal of anti-terror measures appears to be both formidable and troubling. It includes mass surveillance of all types of communication, clandestine detention facilities with ‘coercive’ interrogation techniques which amount to inhuman and degrading treatment, and not so occasional practices which, at least by international human rights standards, amount to torture. Add to this the indefinite detention of foreigners who are too dangerous to be released after capture, deportations, changes in the right to defence and in adversarial procedural standards, enhanced government secrecy, multi-national mass military action in multiple parallel theatres of action, as well as targeted killings via remote controlled aerial devices (drones). Emergencies (of sorts) are declared left and right to justify these measures, although many measures and authorizations are now part of ordinary legislation and executive practice, a simple adaptation to changing times, without the formal disruption of checks and balances. While some of these measures are used to respond to terrorist attacks, others are meant to prevent future strikes.

The sheer range of anti-terror measures, and their rapid evolution, makes one forget that many anti-terror measures originate in criminal justice instruments to investigate and combat organized crime (i.e. the largest private network of illegal activities known at the time). Surface similarities explain the initial transferability of legal techniques: networks of communication and cooperation as well as strategies of funding are similar in criminal and terrorist organizations. The very weight of the governmental infrastructure and expertise (complete with personnel and procedures) has ensured that the model persists. Inter-governmental networks for chasing cross-border organized crime also came in handy.

It is rather enlightening how security had become a constitutional value, an ‘objective interest’, in Germany well before 9/11 and even in the absence of armed attack in the setting of combatting organized crime.91 As a result, security considerations underscoring these (p.442) legal measures (which potentially limit fundamental rights of a large circle of individuals) ceased to be subject to independent assessment before the Constitutional Court. Instead, they became accepted as criteria submitted and assessed by the government, in a political process of deliberation.92 Conversely, the Supreme Court of Israel was initially also deferential to the interrogation practices used by the security forces (GSS) in the occupied territories until 1999.93 Then, as a major departure, in Public Committee Against Torture in Israel v. State of Israel, a case of ordinary judicial review, the Supreme Court found that the application of coercive interrogation without the authorization of the legislature was unacceptable even in ticking bomb situations:

36. In the Court’s opinion, the authority to establish directives respecting the use of physical means during the course of a GSS interrogation cannot be implied from the ‘necessity defense.’ The ‘necessity defense’ does not constitute a source of authority, which would allow GSS investigators to make use of physical means during the course of interrogations…. The rule of law, both as a formal and as a substantive principle, requires that an infringement of human rights be prescribed by statute. The lifting of criminal responsibility does not imply authorization to infringe a human right …

37…. If the state wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose…. In such legislation, the legislature, if it so desires, may express its views on the social, ethical and political problems of authorizing the use of physical means in an interrogation.94

Note that the Israeli Supreme Court did not exclude the possibility of coercive interrogation as such. The justices made it the responsibility of the legislature (i.e. the elected representatives of the people) to authorize the executive or the security forces to resort to such means, instead of letting interrogation be a matter of sheer executive discretion.

Massive anti-terror measures are usually adopted by legislatures at times of crisis, when not only the nation, but also deputies unite as good patriots in the face of a shocking attack. (Conversely, being expected to behave as good patriots, deputies will be reluctant to stand up where the executive cries terror dangers. See Box 11.14.) The measures are often of limited practical use and serve the expression of the government’s determination to do … something. The legal instrument which has served in the U.S. since 9/11 as the basis of far-reaching presidential anti-terror measures (the Authorization to Use Military Force, (AUMF), Pub. L. 107-40) was passed three days after the attack on the Twin Towers, by a unanimous vote in the Senate and with one sole objection in the House of Representatives. Support for the President’s actions under the AUMF started to crumble somewhat when the extent of powers requested by the administration became clear (including powers of domestic surveillance). The legal framework of these measures is known as the USA PATRIOT Act, passed roughly six weeks after the attacks.95

In practice, anti-terror measures are rather difficult to bring under constitutional scrutiny within the classic framework of constitutionalism. Some form of legislative oversight is emerging as the measure of convenience in the anti-terror toolkit at a sub-constitutional (p.443) level.98 The executive is required to report regularly to the legislature, albeit for national security reasons the information may not be sufficient and the oversight body is restrained by the duty of confidentiality. A legislative or independent inquiry99 is hardly going to hold the executive officials of the day accountable. It nonetheless creates a framework and format of transparency and ex-post justification of executive action adopted in response to terrorism.

The relative feebleness of judicial review of governmental action is illustrated by the sobering response of the U.S. Supreme Court to the war on terror. So far, the Supreme Court has never tested the constitutionality of the transfer of powers to the president under the AUMF as such or the constitutionality of various surveillance measures under the PATRIOT Act.100 In Hamdi v. Rumsfeld, the U.S. Supreme Court was satisfied with the limitation of procedural due process rights of a detained citizen imposed by the use of presidential emergency powers. In the words of Justice O’Connor’s plurality opinion:

a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker…. At the same time, the exigencies of the circumstances may demand that, aside from these core elements, enemy combatant proceedings may be tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict. Hearsay, for example, may need to be (p.444) accepted as the most reliable available evidence from the Government in such a proceeding. Likewise, the Constitution would not be offended by a presumption in favor of the Government’s evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.101

A ‘fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker’ is certainly much less than what other citizens would receive before an independent court, with a full set of due process safeguards, in a procedure starting from the presumption of innocence and complete with protection against hearsay.

In 2004 in Hamdi, the Supreme Court was deferential to the President in deciding what fighting the war on terror might take. When Congress started to strip the Supreme Court’s jurisdiction to hear habeas petitions from Guantanamo detainees, the justices started growing increasingly wary of the intentions of Congress. Finally, in 2008 in Boumediene v. Bush,102 the Supreme Court was ready to say that if Congress wished to remove the jurisdiction of the federal courts to hear habeas petitions from Guantanamo detainees (citizens as well as foreigners), Congress would have to provide an adequate substitute in its place.103 (See further in Box 11.15.)

Some courts outside the U.S. have been more willing to prescribe limits to measures applied in response to terrorism and also to impose limitations on the powers of the executive in the war on terror (see Box 11.16). In 2006, the German Constitutional Court found that the statute authorizing the downing of an aircraft which had been taken over by terrorists would amount to an unconstitutional violation of human dignity.104 The Constitutional Court could not accept the treatment of individuals (innocent civilians on a plane captured by terrorists) as mere objects, thus denying the right of the legislature to make tragic choices. As a result, the judgment is seen as a reassertion of the value (p.445) of individual rights in the face of a strong, but generic assertion of collective security interests.109

While the rule of law continues to apply, one cannot forget that an increasing number of government officials (and under their influence more and more people) consider human rights as an invitation to irresponsibility, being opportunities to be exploited on account of terrorism. As a most astute observer of emergency powers has written:

It is in conditions of conflict and emergency that states are most likely to trample on individual rights in the name of the public good, yet it is just in relation to such situations that states are most unwilling to accept any restraint on their power. The risk is that, in consequence, human rights come to be treated like lifts or elevators, which, one is told, should not be used in fires, just when they are what seem to be urgently needed.110

Notes:

(1) Speech III to the First Protectorate Parliament (12 September 1654), 362, in O. Cromwell, The Letters and Speeches of Oliver Cromwell with Elucidations by Thomas Carlyle, Th. Carlyle, ed., S. C. Lomas, enl., C. H. Firth, intr. (Methuen, 1904) 386.

(2) C. Rossiter, Constitutional Dictatorship. Crisis Government in Modern Democracies (Princeton University Press, 1948) 15–28.

(3) Ch.-L. de S. Montesquieu, The Spirit of the Laws [1748], A. M. Cohler, B. C. Miller and H. S. Stone, trans. and eds. (Cambridge University Press, 1992) 159.

(4) O. Gross, Chaos and Rules. Should Responses to Violent Crises Always Be Constitutional? 112 Yale Law Journal (2003) 1011, 1022.

(5) See C. Schmitt, Dictatorship. From the Origin of the Modern Concept of Sovereignty to Proletarian Class Struggle [1921], M. Hoelzl and G. Ward, trans. (Polity Press, 2014) 14.

(6) E.g. ‘[the state of exception] defines a “state of the law” in which, on the one hand, the norm is in force [vige] but is not applied (it has no “force” [forza]) and, on the other, acts that do not have the value [valore] of law acquire its “force.” ’ G. Agamben, State of Exception, K. Attell, trans. (University of Chicago Press, 2005) 38.

(7) D. Dyzenhaus, States of Emergency, 442, in M. Rosenfeld and A. Sajó, eds. The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 443–4.

(8) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 652 (1952).

(9) Liversidge v. Sir Anderson and Others, [1942] A.C. 206, 239 (Lord Atkin). This is the remarkable but inevitable position of a rule of law country with parliamentary sovereignty.

(10) Quoted after S. Thénault, L’état d’urgence (1955–2005). De l’Algérie coloniale à la France contemporaine: destin d’une loi, no. 218 Le Mouvement Social (2007) 63. The communist deputies called the bill the ‘law of the terror’ and warned against (as it turned out rightly) a measure that seeks to introduce emergency government in metropolitan France, contrary to the Government’s honest position that it was to cover Algeria only. Once the measure was in place, with quickly changing circumstances it was applied in metropolitan France. See also Chapter 8, 4.3 for the application.

(11) Federalist no. 23 (Hamilton), 152, in A. Hamilton, J. Madison and J. Jay, The Federalist Papers [1787–88] (Mentor, 1961) 153.

(12) Ch. Bjørnskov and S. Voigt, The Architecture of Emergency Constitutions, 16 March 2016, available at http://ssrn.com/abstract=2798558, 2.

(13) Forms of emergencies are mushrooming in constitutions. In addition to state of war, state of national crisis, state of emergency, or state of preventive defence, in 2015 the Hungarian Parliament recognized in a statute the possibility of a ‘state of crisis caused by mass migration’ (to be declared by the Cabinet without prior parliamentary assessment or authorization). Since 2016, the Fundamental Law also includes a special form of emergency for threats of terrorism.

(15) H. Mommsen, The Rise and Fall of Weimar Democracy, E. Forster and L. E. Jones, trans. (University of North Carolina Press, 1996) 56–7. Similar provisions were to be found already in the 1871 Reich Constitution.

(16) On the dissolution powers of the Reichspräsident see Chapter 6, Box 6.6.

(17) G. Fergusson, A Blueprint for Dictatorship. Hitler’s Enabling Law of March 1933, 40 International Affairs (1964) 245.

(18) On the use of plebiscite see Chapter 3, 7.3.

(14) C. Rossiter, Constitutional Dictatorship. Crisis Government in Modern Democracies (Princeton University Press, 1948) 79–90.

(19) In the common law tradition, the Irish Constitution grants unlimited powers to the Government in case of invasion (Article 28.3.2).

(20) A. Kalhan, Constitution and ‘Extraconstitution.’ Colonial Emergency Regimes in Postcolonial India and Pakistan, 89, in V. V. Ramraj and A. K. Thiruvengadam eds. Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010).

(21) The distinction is made by D. Dyzenhaus, States of Emergency, 442, in M. Rosenfeld and A. Sajó, eds. The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 442.

(25) For a detailed discussion in English see O. Gross and F. Ní Aoláin. Law in Times of Crisis. Emergency Powers in Theory and Practice (Cambridge University Press, 2006) 190–202. For the most recent report on French anti-terror powers see the Feneche Commission Report: http://www.assemblee-nationale.fr/14/rap-enq/r3922-t1.asp.

(26) The highest administrative court (Conseil d’État) remained the only check on presidential powers, to noteworthy effect. On these see text box in Chapter 8, Box 8.8.

(27) See e.g. Madagascar, Mali, and Morocco. This mechanism is retained in the most recent Tunisian Constitution, see Article 80.

(22) On the underlying constitutional dilemmas see Chapter 7, Box 7.11 on Youngstown. Justice Jackson’s concurring opinion was endorsed in Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006).

(28) M. E. Neely, Jr., The Fate of Liberty. Abraham Lincoln and Civil Liberties (Oxford University Press, 1991) 9–14.

(29) Ex parte Merryman, 17 Fed. Cas. No. 9487 (1861).

(30) On quote in M. E. Neely, Jr., The Fate of Liberty. Abraham Lincoln and Civil Liberties (Oxford University Press, 1991) 12.

(31) M. E. Neely, Jr., The Fate of Liberty. Abraham Lincoln and Civil Liberties (Oxford University Press, 1991) chapter 2.

(32) Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), 119, 120–1.

(33) Korematsu v. United States, 323 U.S. 214 (1944).

(23) Abrams v. United States, 250 U.S. 616 (1919). This was the first case where Justice Holmes found a conviction (for the distribution of anti-war leaflets in a factory) not satisfying the clear and present danger test.

(24) Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). See Chapter 7, Box 7.11.

(34) Liversidge v. Sir Anderson and Others [1942] A.C. 206, 254.

(35) Constitutional Court decision of 31 July 1995.

(36) V. V. Ramraj, The Emergency Powers Paradox, 21, in V. V. Ramraj and A. K. Thiruvengadam eds. Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010).

(37) A. Kalhan, Constitution and ‘Extraconstitution.’ Colonial Emergency Regimes in Postcolonial India and Pakistan, 89, in V. V. Ramraj and A. K. Thiruvengadam, eds. Emergency Powers in Asia. Exploring the Limits of Legality (Cambridge University Press, 2010) 96–110.

(38) The judgment of the Supreme Court which found General Musharraf’s declaration of emergency unconstitutional in 2009 departed from this pattern. See Chapter 4, Box 4.17.

(39) N. Bernard-Maugiron, Strong Presidentialism. The Model of Mubārak’s Egypt, 373, in R. Grote and T. J. Röder, eds. Constitutionalism in Islamic Countries. Between Upheaval and Continuity (Oxford University Press, 2012) 377 (emphasis added).

(40) Tunisia, Article 80.

(41) For the use of emergency rule-making powers by the executive see Chapter 7, 2.3.

(42) J.Y. Interpretation no. 31.

(43) J.Y. Interpretation no. 261. A. H. Y. Chen, A Tale of Two Islands. Comparative Reflections on Constitutionalism in Hong Kong and Taiwan, 37 Hong Kong Law Journal (2007) 647, 653–4, 666–7.

(44) The French Constitutional Council found such a warrantless administrative seizure of computer data to amount to an unconstitutional intrusion into private life. Decision no. 2016–536 QPC of 19 February 2016.

(45) See prominently Article 4 of the ICCPR.

(46) Derogation requires a formal declaration by the government introducing emergency measures. Under the equivalent emergency provision of the ECHR (Article 15) Ukraine has indicated that it intends to take such emergency measures in June 2015. France did the same in November 2015 following the terrorist attacks in Paris.

(47) CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, Adopted at the Seventy-second Session of the Human Rights Committee, on 31 August 2001, CCPR/C/21/Rev.1/Add.11, para. 4.

(48) Following HM Treasury v. Ahmed, [2010] U.K.S.C. 2, where the House of Lords transformed into the Supreme Court found asset freezing not applicable because the enabling Order in Council was held invalid as there was no proper authorization for passing it, Parliament enacted the Terrorist Asset-Freezing (Temporary Provisions) Act 2010 authorizing the same restrictions with retrospective effect.

(51) Liversidge v. Sir Anderson and Others [1942] A.C. 206, 244 (Lord Atkin).

(49) A.W. B. Simpson, In the Highest Degree Odious. Detention Without Trial in Wartime Britain (Clarendon Press, 1992) 339.

(50) Liversidge v. Sir Anderson and Others [1942] A.C. 206, 222, 225, 219 (Lord Maugham), 244–5 (Lord Atkin). This case, like Korematsu, shows how intimately interrelated personal liberty and separation of powers are.

(52) Beit Sourik Village v. Government of Israel, H.C.J. 2056/04; Physicians for Human Rights v. The Commander of IDF Forces in the Gaza Strip, H.C.J. 4764/04. See A. Barak, The Judge in a Democracy (Princeton University Press, 2006) 300 et seq.

(53) For an express constitutional provision to this effect see e.g. Mali, Article 50.

(54) B. Ackerman, The Emergency Constitution, 113 Yale Law Journal (2004) 1029, 1047 et seq. The inventory of the instruments of constitutionalism is not fixed forever.

(55) See O. Gross, Constitutions and Emergency Regimes, 334, in T. Ginsburg and R. Dixon, eds. Comparative Constitutional Law (Edward Elgar, 2011) 346–47.

(56) The Constitution of Ghana requires the immediate release of prisoners detained during a state of emergency (Ghana, Article 32).

(59) S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918. The mosque was built in the sixteenth century. Certain Hindu groups claimed that this was the birthplace of the Hindu God Rama. Death toll after demolition: around 2,000.

(57) N. Miroff, The Staggering Toll of Colombia’s War with FARC Rebels, Explained in Numbers, The Washington Post, 24 August 2016.

(58) M. J. Cepeda-Espinosa, Judicial Activism in a Violent Context. The Origin, Role, and Impact of the Colombian Constitutional Court, 3 Washington University Global Studies Law Review (2004) 529, 632–3.

(60) On the political accountability of the executive see Chapter 7, sections 3.2 and 4.3.

(61) M. Ignatieff, The Lesser Evil. Political Ethics in an Age of Terror, paperback ed. (Princeton University Press, 2004) ix.

(62) Quoted in Steven A. Cook, Keep Calm, Erdogan, Foreign Affairs, 3 June 2013, https://www.foreignaffairs.com/articles/turkey/2013-06-03/keep-calm-erdogan.

(63) K. Löwenstein, Militant Democracy and Fundamental Rights, 31 American Political Science Review (1937) 417, 424, 432. Löwenstein himself saw strong executive powers and the use of emergency powers as means to fend off the enemies of democracies, noting that occasional prohibitions used by some European democracies (other than Germany) to ban fascist parties and political movements also worked.

(64) On this see further Chapter 1, 5.2. See also Article 6 of the Spanish Constitution. For the Italian ban on the Fascist Party see Chapter 2, 2.

(65) This happened in cases involving a ban on the Socialist Reich Party (a neo-Nazi party) in 1952 and on the German Communist Party in 1956.

(66) BVerfGE 2, 1 (1952), in W. F. Murphy and J. Tannenhaus, eds. Comparative Constitutional Law (Palgrave Macmillan, 1977) 603; with the translation amended by J.-W. Müller, Militant Democracy, 1253, in M. Rosenfeld and A. Sajó, eds. Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 1259.

(67) Albania, Article 19(2); Chile, Article 19(15); Madagascar, Article 14; Poland, Article 13 (prohibiting totalitarian methods and the modes of activity of Nazism, fascism, and communism); Turkey, Article 68(4) (propaganda of dictatorship is prohibited); Iraqi Constitution, Article 7.

(68) When the Australian federal Parliament enacted a law to ban the Communist Party, the High Court found it ultra vires. Australian Communist Party v. Commonwealth 83 CLR 1 (1951).

(69) P. Niesen, Banning the Former Ruling Party, 19 Constellations: An International Journal of Critical & Democratic Theory (2012) 540.

(70) A. Sajó, Militant Democracy and Emotional Politics, 19 Constellations: An International Journal of Critical & Democratic Theory (2012) 562.

(74) G. Capoccia, Defending Democracy. Reactions to Extremism in Interwar Europe (Johns Hopkins University Press, 2005) 7.

(71) See B. Dressler, Judicialization of Politics or Politicization of the Judiciary? Considerations from Recent Events in Thailand, 23 The Pacific Review (2010) 671, 680–4.

(72) E.g. Angola, Article 17(2)(h); Myanmar, Article 407; Philippines, Article IX(C)(2).

(73) E.g. Moldova, Article 41(6); Montenegro, Article 54.

(75) The ban on the military may be part of a more general fundamental constitutional concern that this book does not address: civilian control over the military.

(76) BVerfGE 107, 339 (2003), English excerpt in D. P. Kommers and R. A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd ed. (Duke University Press, 2012) 295 et seq.

(77) Elsewhere, similar prohibitions exist at the statutory level. See e.g. France.

(78) Prohibitions of ethnic party formation are more common at the statutory level. See e.g. in Ghana (the Political Parties Act, 2000, Article 3(1)).

(79) Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, Application nos. 29221/95, 29225/95, Judgment of 2 October 2001, para. 90.

(80) Herri Batasuna and Batasuna v. Spain, Application nos. 25803/04, 25817/04, Judgment of 30 June 2009.

(81) Herri Batasuna and Batasuna v. Spain, Application nos. 25803/04, 25817/04, Judgment of 30 June 2009, para. 88.

(82) Party for a Democratic Society (DTP) and others v. Turkey, Application nos. 3840/10, 3870/10, 3878/10, 15616/10, 21919/10, 39118/10, 37272/10, Judgment of 12 January 2016, para. 109.

(83) S. Navot, Fighting Terrorism in the Political Arena. Banning Political Parties, 14 Party Politics (2008) 745, 750 et seq.

(84) Refah Partisi (The Welfare Party) v. Turkey [GC], Application nos. 41340/98, 41342/98, 41343/98 et al., Judgment of 13 February 2003.

(85) The Turkish Constitutional Court has banned more than a dozen parties over the years (which is more than any other court with a similar mandate). Turkish parties also self-dissolve in considerable numbers in anticipation of a court ruling to this effect (only to reappear under a different name).

(86) CDL-AD (2009) 006-e, Opinion on the Constitutional and Legal Provisions relevant to the Prohibition of Political Parties in Turkey, 13 March 2009, para. 108.

(87) There was already enhanced anti-terror legislation in the making at the time. For example, in July 2000 the U.K. Parliament enacted the Terrorism Act 2000. On its application see the Belmarsh case in Box 11.16, below.

(88) C. S. Steiker, The Limits of the Preventive State, 88 Journal of Criminal Law and Criminology (1998) 771, 774. For contrary trends see Chapter 8, Box 8.5.

(89) In 2015 ‘[a] majority of Americans oppose the government collecting bulk data on its citizens, … But at the same time, Americans generally support monitoring the communications activity of suspected terrorists….’ G. Ago, What Americans Think about NSA Surveillance, National Security and Privacy. Pew Research Center, 29 May 2015.

http://www.pewresearch.org/fact-tank/2015/05/29/what-americans-think-about-nsa-surveillance-national-security-and-privacy/.

People tend to accept surveillance of ‘terrorists’ without being concerned about the scope of the surveillance.

(90) A. de Tocqueville, Democracy in America [1835–40], vol. 2, H. Reeve, trans., F. Bowen, rev., P. Bradley, ed. (Vintage, 1990) 319.

(91) See Telecommunication Surveillance Act case, 100 BVerfGE 100, 313 (1999), upholding covert electronic surveillance system in regard to international organized crime.

(92) O. Lepsius, Liberty, Security, and Terrorism. The Legal Position in Germany, 5 German Law Journal (2004) 435, 458–9.

(93) For a review of the jurisprudence from this perspective in English see D. Kretzmer, The Occupation of Justice. The Supreme Court of Israel and the Occupied Territories (State University New York Press, 2002) 135–43.

(94) Public Committee Against Torture in Israel v. State of Israel, HCJ 5100/94, Judgment of 6 September 1999, in English translation at http://elyon1.court.gov.il/Files_ENG/94/000/051/A09/94051000.A09.htm.

(95) USA PATRIOT Act, the ingenuous acronym stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001. The full title gives a hint on the scope of the measures.

(96) The Conseil d’État and the Venice Commission expressed reservations. CDL-AD (2016) 006, Opinion on the Draft Constitutional Law on Protection of the Nation of France, 14 March 2016.

(97) See the report of the Fenech commission, 5 July 2016. Proposition no 32. http://www.assemblee-nationale.fr/14/pdf/rap-enq/r3922-t1.pdf, 254.

(98) See the AUMF in the U.S. as well as reporting requirements on anti-terror laws in Israel in B. Medina, The Role of the Legislature in Determining Legitimate Responses to Security Threats. The Case of Israel, 445, in G. Sapir, D. Barak-Erez and A. Barak, eds. Israeli Constitutional Law in the Making (Hart, 2013) 449 et seq.

(99) See further in Chapter 7, 4.3.

(100) See Clapper v. Amnesty International, 568 U.S. ___ (2013) to challenge surveillance under the Foreign Intelligence Surveillance Act.

This does not mean that there is no judicial control over the conditions and activities of secret mass surveillance and at least some courts insist on the importance of the clear determination of the circle of those who are under surveillance. For a recent ECtHR judgment with an overview of the earlier case law see Szabó and Vissy v. Hungary, Application no. 37138/14, Judgment of 12 January 2016. See also the Court of Justice of European Union in Schrems v. Data Protection Commissioner, Judgment of 6 October 2015.

(101) Hamdi v. Rumsfeld, 542 U.S. 507, 353–4 (2004).

(102) Boumediene v. Bush, 553 U.S. 723 (2008).

(103) Note that habeas review in the U.S. does not provide procedural safeguards which are in any way equivalent to constitutional due process guarantees.

(105) The database built from documents obtained through litigation which commenced in 2004 is available at https://www.thetorturedatabase.org/about.

(104) 1 BvR 357/05, 15 February 2006.

(109) O. Lepsius, Human Dignity and the Downing of Aircraft. The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism Provision in the New Air-Transport Security Act, 7 German Law Journal (2006) 761.

(107) A. v. Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, also known as A. v. Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 A.C. 68, 132 (Lord Hoffmann).

(108) A. and others v. the United Kingdom [GC], Application no. 3455/05, Judgment of 19 February 2009, para. 171.

(110) A. W. B. Simpson, Human Rights and the End of Empire. Britain and the Genesis of the European Convention (Clarendon Press, 2004) 478.