(The End of the Trojan War; Orestes and Odysseus) Adaptation from THE ROLE OF COMPARISON TO UNDERSTAND AND DEAL WITH EMERGENCY IN CONTEMPORARY CONSTITUTIONS – Lost in Guantanamo: the fall of the Great Writ of Habeas Corpus, Paolo V. Tonini, Bologna University School of Law
The purpose of this presentation is to analyze the possible suspension of HR’s in a constitutionally-driven perspective. In other words, to lower the angle of the debate from internatinal to domestic law in order to assess how and when funtamental HR’s embedded in the Constitutions can be waivered.
The natural meaning of the word itself is capable of conveying a very wide range of situations and occurrences, including such diverse events as wars, famines, earthquakes, floods, epidemics and the collapse of civil government
In order to enforce a new paradigm, it stands to reason that the previous one, that is the Constitution, has to be suspended, or derogated
emergency, in the end, is equated with potentially unlimited dictatorship, uncontainable in nature but constrainable by principles
The executive can be the lonely president, the commander in chief, as in the case of France and the U.S.A.. In the former there are constitutional provisions ad hoc (art.15 and 16 Const.) giving the president plenty of powers in an emergency status, and, similar outcomes have been observed of the U.S. constitution (art. II, sect. 2) [See the French Constitution of October 4, 1958. Art. 15 . The President of the Republic shall be Commander-in-Chief of the Armed Forces. He shall preside over the higher national defence councils and committees. Art. 16 1,2,3 . Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted, the President of the Republic shall take measures required by these circumstances, after formally consulting the Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council. He shall address the Nation and inform it of such measures. The measures shall be designed to provide the constitutional public authorities as swiftly as possible, with the means to carry out their duties. The Constitutional Council shall be consulted with regard to such measures. […] Parliament shall sit as of right. The National Assembly shall not be dissolved during the exercise of such emergency powers. […]. (full text available in English at http://www.assemblee-nationale.fr/english)
The suspension of those clauses (by the Ermachtigungsgesetz of March 3rd 1933) practically annihilate the very core of constitutional liberties, for art. 114 1 states “The rights of the individual are inviolable. Limitation or deprivation of individual liberty is admissible only if based on laws.”, while art.114 2 involves the general writ of habeas corpus; art.115 regards the unavailability of any “German house or asylum”; art.117 concerns one’s privacy over his means of communications; art. 118 affects freedom of expression tout court; art.123 pertains freedom of assembly and the following art.124 the right to associate in club whit legal capacity when not contrasting with penal law; finally art 153 is about the defense of private property. Noteworthy, Giorgio Agamben pointed out that even if the Weimar constitution went practically annihilated, it has never been formally abrogated; instead, several and subsequent declarations of an emergency status were made by the president Adolf Hitler until the defeat of Germany.
On July, 27 1914, Germany informed Belgium and Luxembourg of its intention to pass its troops through their countries. German Chancellor Theobald von Bethmann-Hollweg reportedly called the 1839 London Treaty, in which all the European powers had guaranteed Belgian neutrality, &quot;a scrap of paper&quot; not worth fighting over. Bethmann-Hollweg was trying to persuade Britain not to declare war based on the treaty. Unsuccessful in his efforts, Britain and Belgium, in the person of king Albert I, declared war when German troops entered Belgium on August 4. Soon after, when it became impossible to have a joint resolution by the chambers, the king, beyond all constitutional hems, with a decree instituted a state of siege, that is, in practical terms, what we have called as far as here the emergency status involving an almost total suspension of the constitutional provisions.
largest number of occurrences. That is the constitutional silence, or at most the presence of some generic provisions, regarding the emergency issues The four emergency statutes still in force at those times were enacted by Roosevelt (1933), Truman (1950), Nixon (1970, 1971).
State of emergency in contemporary constitutions p. tonini
STATEno norm that isEMERGENCY There exists OF applicable to chaos - Carl Schmitt Paolo V. Tonini King’s College of London email@example.comHOW HUMAN RIGHTS CAN BE DEROGATED UNDER WESTERN CONSTITUTIONAL LAWS
The question you propose, whether circumstances do not sometimes occur, which make it a duty in officers of high trust, to assume authorities beyond the law, is easy tosolution in principle, but sometimes embarrassing in practice. A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving ourcountry when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written laws, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means Letter of Thomas Jefferson to John B. Colvin, Monticello, September 20, 1810
TABLE OF CONTENTSI. PREAMBLEII. EMERGENCY VS. STATE OF EMERGENCY A. DEFINITION OF EMERGENCY B. STATE OF EMERGENCY C. JURISPRUDENCIAL DILEMMA: LAWS OF NECESSITY or RULE OF LAW?III. STATE OF EMERGENCY IN CONSTITUTIONS A. CONCENTRATION OF POWERS B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS FORMAL PROVISIONS (GERMANY,ISRAEL) REJECTION/DENIAL (BELGIUM) OMISSION (USA)
PREAMBLE Article 4 ICCPR 19661 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.2. No derogation from articles 6 (arbitrary deprivation of life), 7 (torture), 8 1,2 (slavery and servitude), 11 (debtor’s prison), 15 (lex posterior), 16 (recognition as a person) and 18 (freedom of thought, conscience and religion) may be made under this provision.
EMERGENCY vs. STATE OF EMERGENCY A. DEFINITION OF EMERGENCY In English, the word “emergency” can be considered broadly overlapping the word “crisis”, “need” and “urgency”; the word “crisis” is more narrowly defined than “emergency” though. In fact, it refers to a time when a great danger, difficulty, or confusion, is at its worst point, and the problem must be solved or important decisions must be made in order to survive. “emergency” and “state of emergency”. In fact, the former is the factual cause of the latter, which is a precise legal concept. Therefore such terms cannot be confused. It would be as if one mistook the factual cause for the legal effect
EMERGENCY vs. STATE OF EMERGENCY A. DEFINITION OF EMERGENCY Emercency can only be defined by contrast to a set of circumstances deemed to be ordinary. In ordinary times in constitutionally-framed democracies:4. the polity is able to assimilate the full impact of the give and take of everyday politics;5. a concrete and definite apportionment of powers operates in accordance with the constitution. Emergency breaks the norm being a series of events truly exceptional, in the sense that they must be unforeseen, sudden, dangerous and short-running
EMERGENCY vs. STATE OF EMERGENCY A. DEFINITION OF EMERGENCY All the legislative attempts to give the word a substantive and concrete meaning, have failed in the end because it is impossible to encompass all the possible concrete menaces in the word of the law. Not even comparative research can overcome this elusiveness. The basic assumption that underpins the following considerations, is the fact that in times of crisis the system has to assure a ready response to the menace, and thus there can be no restraints of any kind, not even those at a constitutional level in order to defeat the threat.
EMERGENCY vs. STATE OF EMERGENCY B. STATE OF EMERGENCY The systemic and legal reaction to an emergency is twofold. First of all some, if not all, constitutional provisions are suspended, in order to create a new paradigm able to face the crisis. Secondly, the implementation of the paradigm occurs concentrating the powers in the hands of the executive branch. Such a state of constitutional suspension is the so called state of emergency. N.B. not the validity, but only the effectiveness, of the norms is struck
EMERGENCY vs. STATE OF EMERGENCYC. A JURISPRUDENCIAL DILEMMA: LAWS OF NECESSITY or THE RULE OF LAW?Pure constitutionalists (McIlvain, Hoffman, Dicey, Kelsen) the State is totally constituted by law, the source of the state of emergency is inside the Constitution -no matter whether is it stated formally or obtained by deduction- and emergency statuses are juridically produced voids in which the government can act with several degrees of restraints in order to overcome the crisisRealists (Schmitt, Rossiter, Mortati) “Ausnahmezustand” - "state of emergency“: a state of exception which is supposed to free the executive from any legal restraints. The state of emergency is a space beyond the law, beyond the legal order, revealed when law itself recedes and leave the state, embodied by the sovereign, free to act. (dualist approach: authority-security vs. law)
STATE OF EMERGENCY IN CONSTITUTIONS Scholars have forsaken the search for a formal or tangible definition of emergency status in lieu of a substantive, functional and context-dependent approach because:• The situations that can amount to ‘emergency’ are imponderable and impossible to foretell;• The definition of State of Emergency changes according to jurisdiction, time and sometimes what kind of emergency arises. Therefore only a case-to- case approach can render a global idea of the concept.
STATE OF EMERGENCY IN CONSTITUTIONS PARAMETERS OF COMPARISON … therefore a comparative perspective must focus on what organ the concentration of powers can be attributed to and which institutional (read constitutional) mechanisms should yield and allow to start the related suspension of the constitution (read HRs embedded).
STATE OF EMERGENCY IN CONSTITUTIONS A. CONCENTRATION OF POWERS• The concentration can be stated either in constitutions or in laws or can be the result of a self-attribution. It does not only operate on an horizontal level (i.e. between the organs and the provisions of a constitution), but also on a vertical level (if the state is federal). Moreover, the ruling organ can even engage in law making.• As far as the horizontal level is concerned, the great majority of occurrences has shown that the executive branch established in the same constitution is the ‘assignee’ of the powers;• If the state is ‘federal’, the higher government tends to prevail. However, both the national and the federal levels should constitute a great protection against the concentration of powers. The way in which Federalism provides for this barrier depends. In the US the federal government in years has gained a great control over the singular federated states, beyond what is expressly stated in constitution. Whereas in Germany the local governments retain more control.
STATE OF EMERGENCY IN CONSTITUTIONS B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS 2.FORMAL PROVISION Weimar Republic art.482 of the Weimar constitution: “In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary using armed force. In the pursuit of this aim, he may suspend the civil rights described in articles 114, 115, 117, 118, 123, 124 and 153, partially or entirely
• ‘The march of folly’: Would Nazi Germany have have been in breach of Art. 4 ICCPR if it had been ratified before Hitler took the power?• nowadays, which limits may international law (jus cogens) pose to a State in the same situation? Are they really helpful without enforcement?
STATE OF EMERGENCY IN CONSTITUTIONS B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS 2. FORMAL PROVISION Israel Israel has been under a continuous and chronic state of emergency since the declaration of independence on may 14, 1948. i.e. even before the election of a Constituent Assembly (1949). Even more peculiar, Israel is ruled by an unicameral legislature with de jure parliamentary supremacy, that acts both as a common legislative branch and as a quasi-Constituent Assembly. In practice it has not been established by any formal constitution. Instead of it, a process of piecemeal legislation took place, resulting in a number of "Basic Laws" - that have a quasi- constitutional weight. From 1948 (Law and Administration Ordinance) to 1992 (Basic Law – The Government; BLG) the Government ruled assuming both legislative and executive powers from the Knesset (Parliament). In absence of a constitution, the government were even able to modify the so-called Basic Laws. Today more restraints, but state of emergency never revoked.
STATE OF EMERGENCY IN CONSTITUTIONSB. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS 2. DENIAL Belgium Article 187, title VII, general disposition, affirms: “The Constitution may not be wholly or partially suspended.” Is it reasonable? Complete lack of pragmatism. During WW1 it has been breached by the king declaring a sui generis ‘state of siege’. Today is rendered only as a fundamental preeminent criterion in the interpretation of the constitutional text. In other words, a sort of early warning to the Constitutional Court
STATE OF EMERGENCY IN CONSTITUTIONS B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS 3. OMISSION United States “[…] since March 9, 1933, the United States has been in a state of declared national emergency. In fact, there are now in effect four presidentially-proclaimed states of national emergency. […]These proclamations give force to 470 provisions of Federal law. These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing manners. This […] powers […] confer enough authority to rule the country without reference to normal Constitutional processes.” - US Senators Frank Church and Charles McC. Mathias Jr - Senate Report 93-549, 93d Congress, 1st Session, Report of the Special Committee on the Termination of the National Emergency – Emergency Powers Statutes, provisions of federal law now in effect delegating to the executive extraordinary authority in time of national emergency - , November 1973
STATE OF EMERGENCY IN CONSTITUTIONS• Liberty maximalists. They strongly dissent from the inherent presidential powers doctrine, also believing that constitution provisions can not be derogated unless it is expressly stated. USSC Justice Davis accepted this view in ex parte Milligan.• National security maximalists. Recall Rossiter’s theorization and affirms that the president during a crisis can act in any way he guesses right in order to save the nation. Those actions are not unconstitutional.• Liberal theories. Mediation between the principle of the rule of law stricto sensu and the quest for security. An express congressional ratification ex post facto is requested in order to make constitutional unconstitutional presidential emergency powers and regulations. See the Monroe doctrine.• After two world wars, one cold war and several other conflicts, the national security maximalism with some modifications in practice prevailed. T
STATE OF EMERGENCY IN CONSTITUTIONS• Consider The National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977. Regain control over the executive and give certain rational procedures to the declaration of an emergency status.• Procedure: when an emergency occurs the President must firstly make a declaration, and then explain all the justifications to the Congress in a report. If within six months the Congress neither approve nor refuse this state of emergency, that situation remains in force for one year, unless the president declares its continuation. However, in any time a parliamentary joint resolution can annihilate that emergency status. What it is worth noting is the fact that, in this framework, the only rights that can be suspended are, according to the constitutional text, art. 1 sect. 9 (eight specific limits on congressional power) and the V amendment (abuse of government authority in a legal procedure).• Nevertheless, those acts, like the Israeli ones, have turned out to be, in praxis, waterholes. In fact it is possible to recognize at least 32 declarations of emergency between the enactment of the provisions and the tragic attacks of 9/11. In the end, the President can easily obtain the congressional ex ante authorization that is, practically, a blank check for the executive.
QUESTIONS? This presentation is an adaptation fromTHE ROLE OF COMPARISON TO UNDERSTAND AND DEAL WITH EMERGENCY IN CONTEMPORARY CONSTITUTIONSLost in Guantanamo: the fall of the Great Writ of Habeas Corpus, Paolo Vincenzo Tonini, Bologna University School of Law, 2009