Constitutionalism Under Extreme Conditions: Law, Emergency, Exception [1st ed.] 9783030489991, 9783030490003

Table of contents :
Front Matter ....Pages i-ix
Introduction: Modern Pressures on Constitutionalism (Yaniv Roznai, Richard Albert)....Pages 1-13
Front Matter ....Pages 15-15
Introduction: Emergency, Exception and Normalcy (Guy Lurie)....Pages 17-20
From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization (Ming-Sung Kuo)....Pages 21-39
Judicial Review and Emergencies in Post-Marcos Philippines (Dante B. Gatmaytan)....Pages 41-62
Constitution and Law as Instruments for Normalising Abnormalcy: States of Exception in the Plurinational Context (Kumaravadivel Guruparan)....Pages 63-79
Political Emergencies as Challenges to the Impartiality of Public Law (Ioannis A. Tassopoulos)....Pages 81-100
Front Matter ....Pages 101-101
Introduction: Terrorism and Warfare—Extreme Conditions or the New Normal? (Myriam Feinberg)....Pages 103-108
Human Rights in Times of Terror—A Judicial Point of View (Aharon Barak)....Pages 109-119
Detaining Unlawful Enemy Combatants In Israel: A Matter of Misinterpretation? (Joshua Segev)....Pages 121-137
The Law Governing the Right of Enemy Aliens’ Access to Courts (Roy Peled, Liav Orgad, Yoram Rabin)....Pages 139-163
Front Matter ....Pages 165-165
Introduction: Public Health, Financial and Economic Crises (Anna Damaskou)....Pages 167-174
Judging in Times of Economic Crisis: The Case Law on Austerity Measures in Comparative Perspective (Antonia Baraggia)....Pages 175-195
Financial Crisis as a New Genus of Constitutional Emergency? (Elisa Bertolini)....Pages 197-215
Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International (Pedro A. Villarreal)....Pages 217-238
Front Matter ....Pages 239-239
Introduction: Constitutionalism for Divided Societies (Patrick Graham)....Pages 241-246
The Constitutionalism of Emergency: The Case of Bosnia and Herzegovina and Beyond: Multinationalism Behind Asymmetrical Constitutional Arrangements (Maja Sahadžić)....Pages 247-266
The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences (Elias Dinas, Nikos Skoutaris)....Pages 267-290
Entrenching Hegemony in Cyprus: The Doctrine of Necessity and the Principle of Bicommunality (Nasia Hadjigeorgiou, Nikolas Kyriakou)....Pages 291-312
Front Matter ....Pages 313-313
Introduction: Constitution-Making and Constitutional Change (Tom Gerald Daly)....Pages 315-322
Authoritative Constitution-Making in the Name of Democracy? (Andreas Braune)....Pages 323-343
Again: From 1867 to Today, Making a Constitution Under an Elite Umbrella in Turkey (Fatih Öztürk)....Pages 345-378
Constitution-Making, Political Transition and Reconcilation in Tunisia and Egypt: A Comparative Perspective (Manar Mahmoud)....Pages 379-403
Constitutional Exception as the Basis for Security Sector Reform in Timor-Leste (Ricardo Sousa da Cunha)....Pages 405-423
Front Matter ....Pages 425-425
Emergency’s Challenges (Oren Gross)....Pages 427-452

Citation preview

Ius Gentium: Comparative Perspectives on Law and Justice 82

Richard Albert Yaniv Roznai   Editors

Constitutionalism Under Extreme Conditions Law, Emergency, Exception

Ius Gentium: Comparative Perspectives on Law and Justice Volume 82

Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA James Maxeiner, University of Baltimore, Baltimore, MD, USA Editorial Board Myroslava Antonovych, Kyiv-Mohyla Academy, Kyiv, Ukraine Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro, Rio de Janeiro, Brazil Jasna Bakšic-Muftic, University of Sarajevo, Sarajevo, Bosnia and Herzegovina David L. Carey Miller, University of Aberdeen, Aberdeen, UK Loussia P. Musse Félix, University of Brasilia, Federal District, Brazil Emanuel Gross, University of Haifa, Haifa, Israel James E. Hickey Jr., Hofstra University, South Hempstead, NY, USA Jan Klabbers, University of Helsinki, Helsinki, Finland Cláudia Lima Marques, Federal University of Rio Grande do Sul, Porto Alegre, Brazil Aniceto Masferrer, University of Valencia, Valencia, Spain Eric Millard, West Paris University, Nanterre Cedex, France Gabriël A. Moens, Curtin University, Perth, Australia Raul C. Pangalangan, University of the Philippines, Quezon City, Philippines Ricardo Leite Pinto, Lusíada University of Lisbon, Lisboa, Portugal Mizanur Rahman, University of Dhaka, Dhaka, Bangladesh Keita Sato, Chuo University, Tokyo, Japan Poonam Saxena, University of Delhi, New Delhi, India Gerry Simpson, London School of Economics, London, UK Eduard Somers, University of Ghent, Gent, Belgium Xinqiang Sun, Shandong University, Shandong, China Tadeusz Tomaszewski, Warsaw University, Warsaw, Poland Jaap de Zwaan, Erasmus University Rotterdam, Rotterdam, The Netherlands

Ius Gentium is a book series which discusses the central questions of law and justice from a comparative perspective. The books in this series collect the contrasting and overlapping perspectives of lawyers, judges, philosophers and scholars of law from the world's many different jurisdictions for the purposes of comparison, harmonisation, and the progressive development of law and legal institutions. Each volume makes a new comparative study of an important area of law. This book series continues the work of the well-known journal of the same name and provides the basis for a better understanding of all areas of legal science. The Ius Gentium series provides a valuable resource for lawyers, judges, legislators, scholars, and both graduate students and researchers in globalisation, comparative law, legal theory and legal practice. The series has a special focus on the development of international legal standards and transnational legal cooperation. More information about this series at http://www.springer.com/series/7888

Richard Albert Yaniv Roznai •

Editors

Constitutionalism Under Extreme Conditions Law, Emergency, Exception

123

Editors Richard Albert School of Law The University of Texas at Austin Austin, TX, USA

Yaniv Roznai Harry Radzyner Law School Interdisciplinary Center (IDC) Herzliya Herzliya, Israel

ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-030-48999-1 ISBN 978-3-030-49000-3 (eBook) https://doi.org/10.1007/978-3-030-49000-3 © Springer Nature Switzerland AG 2020 Chapter “Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International” is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/). For further details see license information in the chapter. This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgments

The seeds for this book were planted at the Minerva Center for the Rule of Law under Extreme Conditions. The Minerva Center—a unique collaboration between the Faculty of Law and the Department of Geography and Environmental Studies at the University of Haifa and the Faculty of Law at the University of Hamburg—conducts and supports interdisciplinary research on the normative and institutional dimensions of the rule of law as well as the study of law-in-action. It also fosters multifaceted empirical and theoretical research on the rule of law as a social sphere during belligerencies, natural disasters, and acute socio-economic crises. The Minerva Center was the ideal forum to hold a symposium on how public law manages change in the face of extraordinary pressure on constitutions. On July 18–19, 2016, an international group of scholars gathered under the auspices of the Israeli Association of Public Law to dive deeply into some of the enduring questions involving constitutional resilience and endurance: what is the role of constitutions during times of crisis?; do different kinds of crises call for different solutions?; and can constitutions steer the conduct of political actors during periods of extreme pressure? The program was an immense success, not only in the fruitful discussions all enjoyed but moreover in the product of those deliberations, which are now produced in the chapters appearing in this book. We thank the symposium organizing committee—consisting of Gad Barzilai, Eli M. Salzberger, Amnon Reichman, and Suzie Navot—whose members offered guidance on organizing the event. We thank also the discussants who gave valuable comments on early drafts of the papers presented at the conference: Eli Salzberger, Yair Sagy, Gad Barzilai, Amnon Reichman, Anna Mrozek, Lukas Hrabovsky, Ilan

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Acknowledgments

Saban, Daniel Benoliel, Suha Jubran Ballan, Guy Lurie, and Patrick Graham. Finally, we thank the anonymous external reviewers for their comments on the manuscript, and the editorial team at Springer—Kavitha Palanisamy, Kay Stoll, and Anja Trautmann—for their patience and assistance from the very beginning of our journey toward publication. Austin, TX, USA Herzliya, Israel

Richard Albert Yaniv Roznai

Contents

Introduction: Modern Pressures on Constitutionalism . . . . . . . . . . . . . . Yaniv Roznai and Richard Albert

1

Emergency, Exception, and Normalcy Introduction: Emergency, Exception and Normalcy . . . . . . . . . . . . . . . . Guy Lurie From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ming-Sung Kuo Judicial Review and Emergencies in Post-Marcos Philippines . . . . . . . . Dante B. Gatmaytan

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Constitution and Law as Instruments for Normalising Abnormalcy: States of Exception in the Plurinational Context . . . . . . . . . . . . . . . . . . Kumaravadivel Guruparan

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Political Emergencies as Challenges to the Impartiality of Public Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ioannis A. Tassopoulos

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Terrorism and Warfare Introduction: Terrorism and Warfare—Extreme Conditions or the New Normal? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Myriam Feinberg Human Rights in Times of Terror—A Judicial Point of View . . . . . . . . 109 Aharon Barak

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Detaining Unlawful Enemy Combatants In Israel: A Matter of Misinterpretation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Joshua Segev The Law Governing the Right of Enemy Aliens’ Access to Courts . . . . 139 Roy Peled, Liav Orgad, and Yoram Rabin Public Health, Financial, and Economic Crises Introduction: Public Health, Financial and Economic Crises . . . . . . . . . 167 Anna Damaskou Judging in Times of Economic Crisis: The Case Law on Austerity Measures in Comparative Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Antonia Baraggia Financial Crisis as a New Genus of Constitutional Emergency? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 Elisa Bertolini Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International . . . . . . . . . . . . . . . . . . . . . . 217 Pedro A. Villarreal Constitutionalism for Divided Societies Introduction: Constitutionalism for Divided Societies . . . . . . . . . . . . . . 241 Patrick Graham The Constitutionalism of Emergency: The Case of Bosnia and Herzegovina and Beyond: Multinationalism Behind Asymmetrical Constitutional Arrangements . . . . . . . . . . . . . . . . . . . . . . 247 Maja Sahadžić The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences . . . . . . . . . . . . . . . . . . 267 Elias Dinas and Nikos Skoutaris Entrenching Hegemony in Cyprus: The Doctrine of Necessity and the Principle of Bicommunality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Nasia Hadjigeorgiou and Nikolas Kyriakou Constitution-Making and Constitutional Change Introduction: Constitution-Making and Constitutional Change . . . . . . . 315 Tom Gerald Daly Authoritative Constitution-Making in the Name of Democracy? . . . . . . 323 Andreas Braune

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Again: From 1867 to Today, Making a Constitution Under an Elite Umbrella in Turkey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 Fatih Öztürk Constitution-Making, Political Transition and Reconcilation in Tunisia and Egypt: A Comparative Perspective . . . . . . . . . . . . . . . . . 379 Manar Mahmoud Constitutional Exception as the Basis for Security Sector Reform in Timor-Leste . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405 Ricardo Sousa da Cunha Conclusion Emergency’s Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427 Oren Gross

Introduction: Modern Pressures on Constitutionalism Yaniv Roznai and Richard Albert

Abstract Constitutionalism under extreme conditions raises a bundle of fundamental questions about constitutional design and operation. While we envision constitutions as stable institutions intended to endure for a long duration through moments both peaceful and not, modern history has shown that constitutions are not as resilient as we expect them to be. Sometimes they suffer manipulation by incumbents intent on remaking the constitution under the guise of amending it; sometimes they fail even to withstand anticipated problems of transition or reconciliation; and still other times they quite simply collapse under the weight of changing social and political realities. In this volume on “Constitutionalism Under Extreme Conditions,” a distinguished group of contributors focuses on yet another challenge to modern constitutions: the challenge that various kinds of crises—whether war, terrorism, siege, disaster, financial meltdown and health epidemics, for instance—pose for constitutional stability and survival. This introductory chapter situates the significance of the subject, explains the structure of the volume, and outlines the chapters and their importance to the study of public law both individually and collectively.

Constitutions are often made, broken, or changed under extreme conditions, whether war, secession, emergency or some other extraordinary circumstance. Over the past 40 years alone, more than 200 constitutions have been introduced in this way – and the number rises dramatically when we consider constitutional amendments proposed under extreme conditions. As Peter Russell notes: “no liberal democratic state has accomplished comprehensive constitutional change outside the context of

Y. Roznai (B) Interdisciplinary Center Herzliya, Herzliya, Israel e-mail: [email protected] R. Albert (B) The University of Texas at Austin, Austin, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_1

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some cataclysmic situation such as revolution, world war, the withdrawal of empire, civil war, or the threat of imminent breakup.”1 Constitutionalism under extreme conditions raises a bundle of fascinating and important issues. Constitutionalism is nowadays commonly identified by certain conditions such as the recognition of the people as the source of all governmental authority, the normative supremacy of the constitution, the ways the constitution regulates and limits governmental power, adherence to the rule of law, and respect for fundamental rights.2 Constitutions are intended to be stable and to survive during times of crisis. They are therefore sometimes designed expressly to accommodate unforeseen circumstances and to authorize resort to emergency powers.3 These unforeseen circumstances—for instance belligerency, war, terror and alike; natural and manmade disasters; political and economic meltdowns, and the emergency regimes created to manage these situations—pose a serious challenge to each of the components of constitutionalism. In a constitutional regime, there is a normative supremacy of the constitution, the source of which is ‘the people’. However, states of exception and emergency powers go to the very root of the constitutional order, to the question of sovereignty and its exercise. As Carl Schmitt famously stated in his book Political Theology, the sovereign is “he who decides on the state of exception.”4 According to the classical institution of the Roman dictatorship, in times of crisis an eminent citizen was called by the ordinary officials and temporarily granted absolute powers to protect the republic.5 Drawing inspiration from this influential model for emergency powers, constitutions can be designed to authorize resort to emergency powers and in some cases to create a temporary “constitutional dictatorship” as the regime seeks to restore the status quo ante emergency. These regimes undermine limits to governmental powers as they give enhanced powers, usually to the executive, allowing it to overcome legal restrictions in order to efficiently face the crisis. Emergency regimes have implications for the rule of law. The rule of law comprises two layers: formal and substantive.6 Briefly put, the formal aspect of 1 Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (University

of Toronto Press, 2004), 106. 2 See, for example, Louis Henkin, ‘A New Birth of Constitutionalism: Genetic Influences and Genetic

Defects’, in Michel Rosenfeld (ed.), Constitutionalism, Identity, Difference and Legitimacy: Theoretical Perspectives (Duke University Press, 1994), 39, 40– 2; Dieter Grimm, ‘The Achievement of Constitutionalism and its Prospects in a Changed World’ in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism (Oxford University Press, 2010), 3, 9; Dieter Grimm, Constitutionalism— Past, Present, and Future (Oxford University Press, 2016). 3 Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006). 4 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab trans., 2005), 5. 5 Clinton L. Rossiter, Constitutional Dictatorship – Crisis Government in the Modern Democracies (Princeton University Press, 1948), 15–28; Andrew Lintott, The Constitution of the Roman Republic (Clarendon Press, 1999), 109–115. 6 Paul P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ (1997) Public Law 467.

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the rule of law requires prohibitions and delegations to be explicitly anchored in the law, which is promulgated, prospective, general, stable, clear, and enforced equally. Emergencies stretch our commitments to generality, publicity, and the stability of legal norms as they often require particularity and tremendously broad discretionary powers. This is precisely why nowadays prerogative powers may be limited by statute and their exercise is open to judicial review—developments that blur the distinction between law and prerogative.7 The substantive aspect of the rule of law requires prohibitions and delegations to respect various content-based values, such as individual rights or the separation of powers. In times of crisis both values are at risk. Of course, as Eli Salzberger notes, the encounter between the rule of law and extreme conditions is complicated: Exactly in which circumstances does a disaster or an economic crises or indeed an armed activity constitute extreme conditions that justify special arrangements or an exception regarding the rule of law? In each of these categories, we can draw a dichotomous line (rather than a clear-cut dichotomy) between a major crisis … and a minor disruption to normal life … . Philosophically, normality can be defined as an exact routine or identical occurrence of events – which does not exist in reality, for every situation in life and every point in time is to some degree different from previous ones. Thus, the borderline that defines an extreme condition is not an obvious or a natural one.8

Our understanding of emergencies in its many varieties is shifting from temporary and exceptional ad hoc events to long-term processes that challenge the legal order but also provide opportunities for legal and institutional productivity.9 It is not lost on anyone that fundamental freedoms are at great risk in moments of crisis. Emergency periods are times of “moral panic”,10 which might cause decisionmakers to act irrationally. Eric Posner and Adrian Vermeule write that “during an emergency, people panic, and when they panic they support policies that are unwise and excessive.”11 One obvious fear is the excessive suspension or derogation of fundamental rights and freedoms. As Bruce Ackerman has cautioned, “no serious politician will hesitate before sacrificing rights to the war against terrorism.” 12 And indeed, as Oren Gross argues, “experience shows that when grave national crises are upon us, democratic nations tend to race to the bottom as far as the protection of

7 Thomas

Poole, ‘Constitutional Exceptionalism and the Common Law’ (2009) 7 International Journal of Constitutional Law 247, 252–58. 8 Eli Salzberger, ‘The Rule of Law Under Extreme Conditions and International Law: A Law and Economics Perspective’, in Thomas Eger, Stefan Oeter, Stefan Voigt (eds.), The International Law and the Rule of Law Under Extreme Conditions (Mohr Siebeck, 2017), 3–56. 9 See Karin Loevy, Emergencies in Public Law: The Legal Politics of Containment (Cambridge University Press, 2016). 10 Stanley Cohen, Folks Devils and Moral Panics (Routledge, 2011). 11 Eric A. Posner & Adrian Vermeule, ‘Accommodating Emergencies’ (2003) 56 Stanford Law Review 605, 609. 12 Bruce Ackerman, ‘Don’t Panic’, London Review of Books (07.02.2002), 15–16.

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human rights and civil liberties, indeed of basic and fundamental legal principles, is concerned.”13 Consequently, the expansion of executive powers, suspension of protected rights or even the suspension of democracy as it is or has been practiced raise great concern for the entire enterprise of constitutionalism during times of crisis. John Finn, for example, has demonstrated how normal constitutional procedures may be suspended during emergencies occasioned by domestic political violence.14 Accordingly, there is, perhaps, no more foundational question than this: what may a constitutional democracy legitimately do to defend itself when confronted with an emergency or a crisis that has the potential to undermine democracy or the constitutional order itself?15 The question becomes more complicated when considering the temporal element of crises or emergencies. Traditionally, since the Roman dictatorship, a clear separation was created between normal and emergency times.16 The state of exception continues until it is decided that normalcy has once again returned. However, when this period ends is not always clear. In modern times, it appears as if society is constantly under threat.17 Is there a real distinction between normal times and times of emergency? Is it not the reality we are witnessing, in many places, that of “a permanent state of emergency”?18 True, certain legal and constitutional mechanisms aim to prevent “the dictator” from extending his exceptional rule after returning to normalcy. But the separation of powers often fails to fulfill its purpose under emergency circumstances. Studies show that constitutional rights and institutions have been too easily suspended in times of crisis and that temporary measures have often been extended beyond their original authorization. This may have a pernicious effect on the protection of human rights and the principle of separation of powers.19 Indeed, abuses of these powers

13 Oren Gross, ‘Chaos and Rules: Should Responses to Violent Crisis Always Be Constitutional’ (2003) 112 Yale Law Journal 1011, 1019. 14 John E. Finn, Constitutions in Crisis: Political Violence and the Rule of Law (Oxford University Press, 1990). 15 For how democracies attempt to limit the ability to amend the constitution during emergencies precisely in order to protect the democratic order see Yaniv Roznai and Richard Albert, ‘Emergency Unamendability: Limitations on Constitutional Amendment in Extreme Conditions’ (unpublished, copy with authors). 16 See John Ferejohn and Pasquale Pasquino, ‘The Law of the Exception; A Typology of Emergency Powers’ (2004) 2(2) International Journal of Constitutional Law 210, 223. 17 Eric Posner and Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (Oxford University Press, 2010). 18 See Alan Greene, Permanent States of Emergency and the Rule of Law: Constitutions in an Age of Crisis (Hart Publishing, 2018). 19 See Antonios E. Kouroutakis and Sofia Ranchordas, ‘Snoozing Democracy: Sunset Clauses, De-Juridification, and Emergencies’ (2016) 25(1) Minnesota Journal of International Law 29.

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are plentiful in history, and have often allowed authoritarians to take hold of and maintain power through formally constitutional means.20 In order to justify emergency powers in the eyes of the people, it is often essential to turn to a trusted institution to legitimate their exercise. Here, the judiciary can be key. Using their power of judicial review, courts can define the terms of emergency powers explictly – by constitutionalizing them – and they can defend the public interest in situations where the legislature cannot.21 One of the problems, however, is that just like the people and legislatures, during emergencies even courts can be tempted to “rally around the flag” and in so doing they may fail to exercise their constitutional functions.22 Under or following extreme conditions, countries may compromise some of the essential features of the rule of law.23 Consider, for example, the global responses to terror threats since 9/11. How should established liberal democracies respond to these sorts of attacks? Attacks like these can compel states to be too quick to enact measures that limit the rights of both citizens and enemy combatants.24 As seen in the United States, measures such as the Patriot Act have brought to the forefront a discussion of the tension between individual rights and security.25 While some scholars have argued that constitutions are – and should be – interpreted differently during these times of crises, others such as Giorgio Agamben have been critical of such curtailments of rights.26 The question whether a constitution should have the same meaning during times of war and times of peace is all the more relevant in today’s world.27 During times of crisis, many states often turn to constitution-making or constitutional change. In the interest of bringing about increased stability, states throughout history have sought to redefine themselves with a new constitutional beginning. These significant transitions raise a number of important questions about democratic 20 See Claudia Heiss & Patricio Navia, ‘You Win Some, You Lose Some: Constitutional Reforms in Chile’s Transition to Democracy’ (2007) 49 Latin American Politics and Society 163, 163–185; David Landau, ‘Abusive Constitutionalism’ (2013) 47 UC Davis Law Review 189. 21 See Dante Gatmaytan’s chapter in this volume. 22 See e.g. Amnon Reichman, ‘Judicial Independence in Times of War: Prolong Armed Conflict and Judicial Review of Military Actions in Israel’ (2011) 1 Utah Law Review 63. For an empirical analysis see generally Lee Epstein, Daniel E. Ho, Gary King & Jeffrey A. Segal, ‘The Supreme Court During Crisis: How War Affects only Non-War Cases’ (2005) 80(1) NYU Law Review 1. 23 See Andrej Zwitter, ‘The Rule of Law in Times of Crisis A Legal Theory on the State of Emergency in the Liberal Democracy’ (2012) 98(1) Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy 95–111. 24 See e.g. Victor V. Ramraj & Arun K. Thiruvengadam (eds.), Emergency Powers in Asia: Exploring the Limits of Legality (Cambridge University Press, 2010). 25 On constitutional pressure in wartime see e.g. Mark Tushnet (ed.), The Constitution in Wartime: Beyond Alarmism and Complacency (Duke University Press, 2005). 26 Giorgio Agamben, State of Exception (Kevin Attell trns., The University of Chicago Press, 2005), 1–31. 27 Ian Zuckerman, ‘One Law for War and Peace? Judicial Review and Emergency Powers Between the Norm and the Exception’ (2006) 13 Constellations 522.

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legitimacy and the rule of law. As Andreas Braune asks in this volume, if it is allowable to suspend certain rights during times of crisis, is it not also allowable to create new ones?28 To what extent should the public be involved in this process? These questions are central to the establishment of a more stable regime following a period of unrest, and they also highlight the importance for governments and the people, during and after chaotic and critical moments, to reflect on the normative values in their constitutional order. Equally deserving of consideration is another kind of crisis that puts strain on a constitution: divided societies. In multinational states there are often intense pressures on the state to hold together multiple nations within the framework of a single constitution. Constitutional arrangements can offer a way to keep these multi-national states together. But in some cases, these arrangements are asymmetrical and benefit only certain groups.29 A study of these tensions can highlight important lessons on how constitutions can bring about stability in otherwise fragile systems. Although many constitutional crises are violent political struggles, not all of them are. Many of the pressures constitutions face come from issues of public health and economic downturn. During these moments, states can enact a number of new measures to resolve the ongoing emergency. While these responses have the potential to bring about stability during the chaos, they can also make drastic changes to the constitution. But how far is too far? Whose role is it to safeguard the constitutional principles that were in place before the crisis began? It may sometimes be necessary to infringe an important constitutional rule in order to resolve a temporary emergency but impact is not always restricted to the resolution of that particular moment; they often long lasting.30 The expansion of institutional powers, then, may have both constructive and destructive impacts in times of stability. A study of state responses in the face of emergency can reveal important insights on the role constitutions play during a crisis. Surviving these moments may call for constitutions to be flexible or even created anew. Without oversight, responses to crises have the potential to contradict preexisting values, calling the legitimacy of liberal democracies into question – and even possibly giving rise ultimately to authoritarianism. The stability of a constitution is rooted in its ability to respond to emergencies without abandoning its core principles. We intend in this volume to go beyond existing studies of constitutionalism under some form of extreme conditions. Some studies are country-specific, others are written in relation to a particular kind of crisis, and others deal with one or more kinds of responses to emergencies. Our volume offers a comparative and comprehensive inquiry into constitutionalism under extreme conditions. It moreover examines how constitutions deal with extreme conditions before, during and after the period of stress in the jurisdiction. And our volume also probes many different types of crises. We believe this volume stands alone in its breadth of subjects covered and in its variety of jurisdictions explored. 28 See

Andreas Braune’s chapter in this volume. Nasia Hadjigeorgiou and Nikolas Kyriakou’s chapter in this volume. 30 See Elisa Bertolini’s chapter in this volume. 29 See

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The book is divided into five Parts. Each Part begins with a critical “miniintroduction” that comments on the chapters in each of the respective Parts of the book. The authors of these mini-introductions are Anna Damasku, Myriam Feinberg, Patrick Graham, Guy Laurie and Tom Gerald Daly. The first Part of the book is titled “Emergency, Exception, and Normalcy”. This Part provides an exploration of the concept of emergency powers and states of exception. The chapters in this Part theorize practices and strategies that could be used to help legitimate the use of emergency powers while respecting the constitutional principles created during a period of normalcy. The first chapter in this Part is From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization by Ming-Sung Kuo. In this chapter, Kuo argues that rediscovering the role of responsibility vis-à-vis political judgment in constitutional ordering is pivotal to the constitutionalization of emergency powers amidst the normalization of the state of exception. First, he identifies two features of the liberal answer to the question of emergency powers: conceptually, that it is premised on the normative duality of normalcy and exception; and institutionally, that it pivots on the identification of institutional sovereignty that judges the state of exception. He then explains why this paradigm falters with the blurring of normalcy and exception. Drawing on the role of “theatricality” in Hannah Arendt’s political theory, Kuo suggests that making the public “see” the role of judgment in the current undeclared emergency regime underpin the re-constitutionalization of emergency powers. Recast in a constitutional mindset, he writes, the judiciary is expected to act as the institutional catalyst for forming the public judgment on the ongoing state of emergency. Next is Judicial Review and Emergencies in Post-Marcos Philippines by Dante Gatmaytan. In this chapter, Gatmaytan argues that when the Philippine Supreme Court held that the factual bases for declaring an emergency are beyond the scope of judicial review, it gave Ferdinand Marcos free rein to administer his martial law regime. When Marcos was ousted by protests in 1986, the new government drafted a constitution that strengthened the role of the Judiciary by giving it the power to review the factual bases of emergency powers. However, in six different cases the Supreme Court refused to exercise its new power, continuing to defer to the executive branch in matters that implicate national security. In this chapter, Gatmaytan asserts that the Supreme Court’s reluctance in assuming a more powerful role reflects institutional competence concerns. Further, the Philippine case shows that a constitutional directive that alters the balance of power among the three branches of government does not override the rationale for deference to the executive branch in times of political trauma. The following chapter is entitled Constitutions as Instruments for Normalising Abnormalcy: The Sri Lankan and Indian Experience, in which Kumaradivel Guruparan explores whether the laws can legislate for states of exception. Using Sri Lanka and India as case studies, Guruparan argues that it may not always be true that the constitution (and the law) cannot legislate for the exception – particularly when exceptions are not merely exceptions but become the norm. The chapter critiques

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Carl Schmitt’s assumption of abnormalcy as an exception and argues that in plurinational states which have been riddled by conflict and war, abnormalcy may in fact become the new normalcy. Two examples of such abnormalizing of the normalcy, the author argues, is the centralization of powers and permanent national security laws. In such circumstances, which he calls “the normalization of the abnormalcy”, a state’s constitution and law can, and in fact do, legislate for states of exceptions. This argument develops on Giorgio Agamben’s identification that there are indeed ‘prolonged states of being in exception’ during which there is a long-term curtailment of rights. The chapter however critiques and modifies Agamben’s views for a pluri-national setting. Finally, in Political Emergencies as Challenges to the Impartiality of Public Law, Ioannis Tassopoulos discusses Greece’s rich constitutional experience with constitutional crises, focusing on the use, and the abuse, of entrenchment in relation to profound political conflicts. From the constitutional point of view, the most important cases of emergency are civil war and war. Response to an emergency requires, first, confronting efficiently the dangerous situation as such; and, secondly, channeling and constraining the political conflict generated by the emergency within the broader framework of constitutional politics, i.e. the “rules of the game.” The question is whether (and how) entrenchment, i.e. the constitutionalization of emergency provisions, can be a suitable method and technique of harmonizing these potentially conflicting ends. Going beyond mere functionalism, the chapter highlights the normative and argumentative constraints of the discourse on emergency and entrenchment, associated with the idea of constitutional impartiality: public law, procedural fairness of democratic elections, inclusive politics, and respect of fundamental rights without exception. It argues that the successful constitutional treatment of emergency crises is undermined by the excessive voluntarism and the factual origin of the constituent power, underlying the influential Schmittian notions of decisionism and constitutional legitimacy. Part II of the book shifts the focus to a specific type of extreme condition, and one of the more burning challenges of recent decades, “Terrorism and Warfare”. This Part assesses how constitutions are interpreted during times of war, the tension between individual rights and safety during these times of crisis, and the possible role of courts to ease this tension. Human Rights in Times of Terror – A Judicial Point of View, by Aharon Barak, former President of the Israeli Supreme Court, opens this second Part. In this chapter, Barak argues that the main role of any judge, national or international, is to maintain and protect democracy. Further, he states that judges should protect it both from terrorism and from the means the state wishes to use to fight terrorism. The protection of human rights of every individual is a duty much more formidable in situations of terrorism than in times of peace and security. If judges fail in this role in times of terrorism, they will be unable to fulfill their role in times of peace and tranquility. As Barak states, a wrong decision in a time of terrorism plots a point that will cause the judicial curve to deviate after the crisis passes. Next is Detaining Unlawful Enemy Combatants in Israel: A Matter of Misiniterpretation? by Joshua Segev, whose chapter contributes to a much larger debate

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regarding the protection of human rights in times of emergency, and the need for new constitutional frameworks and concepts to deal with the new threats. The chapter argues against the territorial and over-individualized interpretation given to the Unlawful Enemy Combatant Act of 2002 by the Israeli Supreme Court. Namely, that the purpose of the Unlawful Enemy Combatant Act establishes an “ordinary” administrative detention mechanism to be used beyond Israel’s borders (i.e. in Gaza and Lebanon but not in Israel or the West Bank), and which requires the showing of an “individual threat” emanating from the detainee to state national security. Segev then defends an associative theory of culpability for detaining enemy combatants: the detention should be based also on who they are (i.e., high ranking commander versus low ranking officers or “field” soldier); on collective national goals (i.e., in order to release Israeli MIA soldiers); and not only on what they might do. Additionally, constitutional frameworks (i.e., the proportionality requirement) should be reframed accordingly to satisfy the demands and principles of the associative theory of culpability. In The Law Governing the Right of Enemy Aliens’ Access to Courts, Roy Peled, Liav Orgad, and Yoram Rabin ask whether a democratic judiciary may limit access to court by alien enemies? As they explain, an old common law rule clearly allows denial of court access from enemy aliens. Courts to this day have been hesitant to overturn the rule, while carving more and more exceptions to it. This chapter argues that this old rule should be declared void. It should however, they argue, be replaced with a new rule that will allow to limit access to courts by enemy aliens who are considered enemy organs in cases aimed at using the legal process to benefit an enemy. The chapter reviews the historical development of the old rule and argues for the necessity of a new model and the justifications for the model proposed. Part III turns to different set of extreme conditions: “Public Health, Financial and Economic Crises”. The chapters in this Part consider how constitutions change and respond to crises that are not necessarily political or violent. Instead, these chapters look to how constitutional measures can address public health, financial, and economic crises, and what lasting impacts these reforms have. In Judging in Times of Economic Crisis: The Case Law on Austerity Measures in Comparative Perspective, Antonia Baraggia examines the role played by the judiciary during the Eurozone crisis, comparing the attitudes of national supreme courts (Portugal, Italy, Greece, Latvia and Romania) and the Court of Justice of the European Union in judging austerity measures adopted under emergency circumstances. She argues that, while at national level supreme courts have played a key role in fundamental rights protection, trying to safeguard the constitutional order’s core values in moments of extraordinary circumstances, the latter has avoided - until the recent Ledra Advertising case - judging the legitimacy of the bailout measures, which therefore represent a sort of black hole in the EU legal framework. The chapter highlights the paradigmatic nature of the euro crisis as a global crisis that involves national, supranational, and international settings and sheds lights on the different attitudes of the Courts within the broader context of the persistent flaws of the EU economic governance.

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Next is Financial Crisis as a New Genus of Constitutional Emergency? by Elisa Bertolini. In this chapter, Bertolini focuses on the possibility of drawing a parallel between an economic emergency and a traditional emergency. However, she argues, that they cannot be considered alike, since they do not share the basic feature of the temporary character of the measure, implying the restoration of the status ante the emergency finished. Nevertheless, when the economic crisis is finally over, these provisions are still in force because either they have become entrenched constitutional provisions – following a constitutional amendment – or if the statute law providing for them continues to be implemented and deploys its effects. Bertolini considers three main concerns that arise in these situations: first, whether it should be allowed to amend the constitution in highly critical situations; second, who should be entitled to protect the main principles and basic rights founding the legal order against the infringements by the crisis-management measures and how; and third, the opportunity to constitutionalise the economic crisis as a particular case of emergency. The third chapter in this Part is Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International. Authored by Pedro Villarreal, the chapter explores how emergencies can require either ordinary or extraordinary responses, specifically within the context of transborder infectious diseases. He argues that while there are archetypes both at the practical and at the theoretical level attempting to provide a response, it cannot be considered that one of them is the only correct model. Rather, they can even interact with each other during pressing and unpredictable events that stretch the limits of institutional powers. Villarreal contends in this chapter, that even if they may not require creating a completely new strand within constitutionalism, public health emergencies can nevertheless contribute to the broader discussions on how to legally frame the ensuing responses. Part IV is titled “Constitutionalism for Divided Societies” and investigates the stress put on constitutions by diverse, multi-national populations, which can create and intensify extreme conditions for constitutionalism. The chapters consider how constitutional features can facilitate stability and balance in these states. In the first chapter of this Part, The Constitutionalism of Emergency: Multinationalism Behind Asymmetrical Constitutional Arrangements, Maja Sahadži´c shows that, unlike “model” federations, recent federal systems are “holding together” multinational states that often employ asymmetrical constitutional arrangements as a response to differences. As she observers, even though this subject has gained importance in the relevant literature during the last decade, little research has been devoted to the concept of constitutional asymmetries in multi-tiered multinational systems. More specifically, Sahadži´c states that the basis for the occurrence of constitutional asymmetries is not comprehensively researched and therefore not well understood. This chapter elaborates the influence of multinationalism on the constitutional asymmetries appearance. Within the framework of the dynamic notion of federalism, Sahadži´c draws on three distinctive features of this topic, asymmetry, a multi-tiered system, and multinationalism. With reference to comparative examples, the findings reveal a significant effect of multinationalism in producing emergencies associated with the occurrence of constitutional asymmetries.

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The next chapter is The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences by Nikos Skoutaris and Elias Dinas. Although there are various institutional devices through which segmental autonomy can be implemented, in practice, one of its typical manifestations involves the devolution of legislative competences to the regional level. This process is in turn accompanied by the establishment of subnational representative institutions: governments, parliaments and elections. The authors argue, that although such decentralization of political authority aims at accommodating centrifugal tendencies within a plurinational state, it may backlash, creating conditions that help such tendencies grow even further. By focusing on Spain, the chapter examines how subnational elections can have long-term unintended consequences, strengthening subnational identity, disseminating views in favor of further decentralization and potentially cultivating secessionist preferences. In Entrenching Hegemony in Cyprus: The Doctrine of Necessity and the Principle of Bicommunality by Nasia Hadjigeorgiou and Nikolas Kyriakou, the authors argue that, since Cyprus became an independent state, most political power has been concentrated in the hands of the Greek Cypriot majority, with the other groups remaining largely marginalized. They state that this hegemony of the Greek Cypriot political elite has been the result of a dual, and rather contradictory approach. On the one hand, the constitutional protections for the different groups have been eroded through the application of the doctrine of necessity, a mechanism intended to keep the Constitution up to date with the political developments in the country. Conversely, in cases where the doctrine could be used to safeguard the minorities’ rights, the government has highlighted the unamendable nature of the Constitution and relied on the obsolete constitutional provisions that the doctrine of necessity was designed to avoid. Part V is titled “Constitution-Making and Constitutional Change”, and its chapters address how constitutions are transformed or created anew during moments of crisis. Authoritative Constitution-Making in the Name of Democracy?, by Andreas Braune, begins this Part. Braune suggests that in cases of constitutional emergency there might be a right to create constitutions. If it is allowable to suspend basic freedoms and democratic procedures to save democracy and rule of law, he asks, why should this be disallowed at the point of constitutional creation? This rather provocative suggestion stands at the end of some reflections on what Braune calls the “dilemma of democratic constitution-making”. He suggests, at its core we can identify the problem that constitution-making in the democratic mode of the pouvoir constituant easily leads to a collapse of the constitution-making-process. The chapter concludes not with normative assertions but by proposing an open empirical hypothesis on the claim that certain forms of authoritative constitution-making are more promising to secure the establishment of democracy and rule of law than democratic modes are. In Again: From 1867 to Today, Making a Constitution Under an Elite Umbrella in Turkey, Fatih Öztürk explores the instability of Turkish democracy by looking at the details and issues that surround the making of constitutions and the elite,

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with specific focus on elite-public participations relations in a historically chronological order, which is a necessity in comprehending the complexity of the topic at hand. Öztürk argues that elite involvement without public participation in making constitution has caused a weak and unstable democracy in Turkey. Extremist elite powers have, and still, prevent harmonization within the state system and contribute to inequality among all members of society. He contends that the country currently needs a new constitution, which was promised by the government that was re-elected on November 1st, 2015, ever since its rise to power on November 3rd, 2002. Öztürk recommends that the new constitution should lead to the participation of the public before and after political events which take place in the administration of the country. With this in mind, he suggests that the privileges of the elitist system should be outlined as a set rate that does not vary from term to term, or if possible, be eliminated from the political system all together and re-inserted into its own realm of affairs in order for a flourishing Turkish democracy. The following chapter is Constitution-Making, Political Transition and Reconciliation in Tunisia and Egypt: A Comparative Perspective by Manar Mahmoud. This chapter examines how the constitution-making process can become a reconciliatory constitution-making process. Its emphasis is on examining the necessary conditions needed for constitution-making process to be a reconciliatory process and in particular, the transformation in the nature of the political regime and political culture. Mahmoud addresses this issue in two countries: Tunisia and Egypt. These two cases differ from one another in terms of the success of constitution-making process, leading to a solution to the disputes between the various communities in these societies. While in the case of Tunisia the constitution-making process contributed to a great extent to the reduction of disputes and conflicts and the achievement of reconciliation, in the Egyptian case constitution-making process did not succeed in this matter. In Security Reform in Timor-Leste After the Constitutional Exception¸ Ricardo Sousa da Cunha explores the current legal regime on national security in TimorLeste, which is based on the answer given to situations of constitutional exception. He states that after the restoration of the independence in 2002, the crises of 2006 and 2008 led to the creation of joint military and police taskforces, which, as much as the legal and political doctrine on national security, shaped the legal regimes for the organization, development and engagement of the military and security Forces. He contends that the legal reform of 2010 laid the way for its subsequent implementation by Operation “Hanita” in 2015 and the recent approval of the Strategic Concept on National Defence and Security in 2016. However, in this chapter Cunha problematizes how there are still many challenges in the implantation, and eventual revision, of these legal regimes, which, however, are the building block of a system of Defence and Police Forces under the rule of law. The volume concludes with Oren Gross’s chapter on Emergency’s Challenges. Gross examines numerous predominant challenges that are raised by emergencies. It focuses on four types of general concerns, namely the normalization of the exception (‘normalizing’), the difficulty in balancing between the opposing values of security

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and liberty (‘balancing’), the manipulability of the very use of the concept of “emergency” to frame a given situation or state of affairs (‘framing’), the “Us vs. Them” character of emergency situations that, in turn, exacerbates some of the previously identified challenges (‘othering’), and the capacity to exercise international monitoring and supervision when a government declares a state of emergency (‘monitoring’). This concluding chapter thus provides a framework for understanding and studying the challenges of constitutionalism under extreme conditions. We hope this volume will advance our understanding of how constitutional orders can withstand extreme conditions while importantly protecting fundamental constitutional rights and values. At a time when democracies everywhere may be under crisis,31 this book is particularly timely.

31 Mark A. Graber, Sanford Levinson and Mark Tushnet (eds.), Constitutional Democracy in Crisis?

(Oxford University Press, 2018).

Emergency, Exception, and Normalcy

Introduction: Emergency, Exception and Normalcy Guy Lurie

Abstract The introduction to the first section of this volume explains that all four chapters of this section have a common thread: the difficulty of safeguarding against the normalization of emergencies and the blurring of the distinction between public powers in times of crisis and public powers in regular times. The modern conception of law and authority assumes that such a distinction is possible, and it indeed forms the basis of our understanding of how constitutionalism should operate under extreme conditions. State practice that blurs this distinction may pose a threat to constitutionalism, not only under extreme conditions, but also in regular times, since the utilization of emergency powers in normal times quashes the rights associated with it. As the four chapters in this section demonstrate, each in a different way, the threat of the normalization of emergencies has now become more acute than ever.

In the early fourteenth century, a French noble wrote a letter to the jurist Oldradus de Ponte of Padua. In his letter he asked about the legality of the French king’s collection of that year’s emergency tax (called for a “public and common utility and necessity”). He thought that he might be exempt since he was a noble and this supposedly emergency tax was in fact collected year after year. In his subsequent opinion, Oldradus de Ponte legitimized this emergency tax while noting the novelty of collecting it annually instead of for a one-time crisis; he explained the legality of turning the exceptional emergency use of “necessity” into an annual ordinary use, basing it on the king’s “imperial privilege” (de Ponte 1571, 39). This fourteenth century legal opinion exemplifies two important points with regard to emergency law and constitutionalism that the chapters in this section discuss and analyze. The first point is the distinction between “normal” law and “emergency” law. Our modern conception of law and authority accepts that such a distinction may be possible. This modern conception is a product of developments during the late Middle-Ages. Gradually departing from law’s former conceptualization as universal G. Lurie (B) The Israel Democracy Institute, Jerusalem, Israel e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_2

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and divine, development of central authorities saw the crystallization of new conceptions that allowed for the distinction between public legal powers in normal times and public legal powers in times of crisis (Lurie 2017). Along with this distinction comes the second point exemplified in Oldradus de Ponte’s legal opinion. Namely, the practice of public authorities to blur the distinction between their powers in times of crisis and their powers in normal times, extending the former to the latter. The distinction between normalcy and emergency, between public powers in regular times and public powers in times of crisis, is the basis of our modern conception of how constitutionalism operates under extreme conditions. At the same time, state practice which blurs this distinction may pose a threat to constitutionalism, not only under extreme conditions, but also in regular times. “Constitutionalism” as it developed from the late Middle-Ages until today (Foronda and Genet 2019), is generally based on the premise that the use of public power is restricted in a way that protects the rights of the people (Van Caenegem 1995, 79). As states utilize emergency powers in normal times and not only under extreme conditions, they quash this premise and the rights associated with it. For the liberal democratic state, this practice of blurring between emergency and normalcy is a real threat. The field of Historical and Comparative Institutional Analysis, for instance, has argued for the importance of constitutionalism for the flourishing of liberal democratic states and their citizens. Several scholars argued that only constitutional orders that had managed to build a credible commitment to rights (particularly, property rights) had achieved economic growth and political prowess. The problem, as scholars such as Douglass North and Barry Weingast describe it, is that in times of crisis, regimes’ short-term incentives make them ignore their longterm interest in maintaining the constitutional order (which encourages the public to pay taxes, to invest money, and to lend the regime). Thus, self-enforcing mechanisms are needed, according to this analysis, to prevent breaches of the constitutional order under these extreme conditions (North and Weingast 1989; Weingast 1997). Yet, even assuming that we have found some self-enforcing mechanisms that restrict state powers under extreme conditions, by blurring the normalcy-emergency distinction the regime may bypass these mechanisms and effectively breach the constitutional order. While democracies have found various solutions, some more effective than others, to create self-regulating mechanisms constraining regimes both in normal times and in emergencies, less success has been forthcoming in safeguarding against the normalization of emergencies and the blurring of the distinction between public powers in times of crisis and public powers in regular times. This difficulty is perhaps best manifest in the ways that democracies face threats of terror, in which the line between normalcy and crisis is the thinnest, as explained in this volume, for instance, by Myriam Feinberg, Terrorism and Warfare—Extreme Conditions or the New Normal, and by Aharon Barak, Human Rights in Times of Terror—A Judicial Point of View. Indeed, state measures against the threat of terror have become particularly harsh in the past two decades, especially following the attacks of 9/11 (e.g., Katselli and Shah 2003), instigating an intense theoretical and practical legal discussion. Some scholars, such as Agamben (2005), offer little solace in maintaining

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the normalcy/emergency distinction, focusing on diagnosis and arguing that Western regimes now use the fiction of emergencies as a regular means of government, thus destroying the rule of law. Other scholars, such as Ackerman (2004), attempt to offer various practical legal solutions to grant emergency powers while keeping the rule of law, relying on constitutional measures, statutes, judicial oversight, or international law. As the four chapters below demonstrate, each in a different way, the threat of the normalization of emergencies has now become more acute than ever. Each of them has a different emphasis, from diagnosis of the problem, to its practical suggested treatments. In the chapter “From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization,” Ming-Sung Kuo demonstrates how the normalization of emergency threatens constitutionalism and the liberal project. The chapter shows that the normalization of emergency has eliminated the ability to constitutionally control it. As noted in the chapter: “the blurring of normalcy and exception in fact and norm has cast doubt on the control paradigm.” The chapter suggests a new political model of controlling or at least illuminating the recourse to emergency, through giving the court a new role. Arguing that the judiciary has so far failed to check the normalization of emergency, the chapter calls for giving the courts a new role of declaring the existence of an emergency: a “judicial construction of the de facto emergency regime.” Thus, according to Ming-Sung Kuo, the court will no longer simply play a role as an arbitrator attempting to control the emergency regime, but rather will be “the catalyst for forming the collective public judgment on the de facto emergency regime.” In the chapter “Judicial Review and Emergencies in Post-Marcos Philippines,” Dante Gatmaytan also demonstrates the current problematics of relying on the Judiciary as the guardian of the liberal constitutionalism project against the normalization of emergency, through showing that the court in the Philippines was unable to assume its role as enforcer of the constitution in the context of emergencies. Despite the fact that the constitution gave the court in the Philippines authority to review governmental attempts to falsely claim “emergency,” the court has not actually done so. As shown by Gatmaytan, the court “is unwilling to assume its new role as a check on the exercise of emergency powers.” Gatmaytan shows that the Supreme Court has assumed in the Philippines a conservative role: “Constitutionally empowered to check the Chief Executive, the Supreme Court may yet be wondering what it has to gain by defying Executive findings that the public is in danger.” Yet counter to Ming-Sung Kuo’s call for the judiciary to assume a new and different role in this field, Gatmaytan writes approvingly of this conservative judicial policy: “The Supreme Court has opted to act smartly, by inoculating itself from the politics inherent in the nature of public emergencies and allowing other layers of political vetoes to come into play.” In the chapter “Constitution and Law as Instruments for Normalising Abnormalcy: States of Exception in the Plurinational Context,” Kumaravadivel Guruparan shows that in states composed of several ethnic groups (“plurinational states”) in which the dominant ethnic group tries to suppress by force another ethnic group, the normalization of emergency is a means used by the government to mask the abandonment of the liberal constitutionalist project. Guruparan demonstrates this phenomenon through

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the Sri Lankan and Indian cases, showing that in these states “the state of exception has been used to invoke National Security Laws […] to settle the friend-enemy distinction that Schmitt identified as the purpose of the state of exception.” Guruparan explains that the “centralisation of power has been justified by political elites as an exception to the liberal constitutional paradigm and not as an abandoning of the same, that centralisation has become a normal and essential feature of constitutional praxis in plurinational states aimed at protecting the dominant community’s status in the state.” Finally, in the chapter “Political Emergencies as Challenges to the Impartiality of Public Law,” Ioannis A. Tassopoulos examines the interplay among uses and misuses of emergency powers and constitution making processes in the modern history of Greece. Tassopoulos does so in order to pinpoint how emergency destroys constitutionalism. He emphasizes the tendency to fail to realize that constitutionalism is based on “consensus over the rules of the game and their impartiality, and on prudential prevention of reciprocal destruction in civil war, in sharp contrast to Carl Schmitt’s decisionism during emergencies.” He also emphasizes “the self-referential nature of popular sovereignty, whose culminating point is the doctrine of constituent power as the self-legitimization of any political force which creates right out of might by attributing its arbitrariness and audacity to the will of the people or to the nation.” In short, the four chapters below tackle the issue of normalization of emergency as the bane of constitutionalism. As such, they all share an assumption that the distinction between “normal” law and “emergency” law is possible. Indeed, they may all be viewed as part of the long-standing effort of the constitutional state to find a way to keep this distinction intact, seeing it as essential in order to preserve constitutionalism itself.

References Ackerman B (2004) Yale Law J 113:1029–1091 Agamben G (2005) State of exception. University of Chicago Press, Chicago Van Caenegem R C (1995) An historical introduction to western constitutional law. Cambridge University Press, Cambridge Foronda F, Genet J-P (eds) (2019) Des chartes aux constitutions: autour de l’idée constitutionnelle en Europe (XIIe –XVIIe siècle). Éditions de la Sorbonne, Paris Katselli E, Shah S (2003) September 11 and the UK response. Int Comp Law Q 52:245–255 Lurie G (2017) What is modern in the state of exception? J Eur Hist Law 8:50–57 North DC, Weingast BR (1989) Constitutions and commitment: the evolution of institutions governing public choice in seventeenth-century England. J Econ Hist 49:803–832 de Ponte O (1571) Consilia, sev Responsa, & Quaestiones Aureae. Apud Franciscum Zilettum, Venice Weingast BR (1997) The political foundations of democracy and the rule of law. Am Polit Sci Rev 91:245–263

From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization Ming-Sung Kuo

Abstract In this paper, I argue that rediscovering the role of responsibility vis-à-vis political judgment in constitutional ordering is pivotal to the constitutionalization of emergency powers amidst the normalization of the state of exception. I first identify two features of the liberal answer to the question of emergency powers: conceptually, it is premised on the normative duality of normalcy and exception; institutionally, it pivots on the identification of institutional sovereignty that judges the state of exception. I then explain why this paradigm falters with the blurring of normalcy and exception. Drawing on the role of ‘theatricality’ in Hannah Arendt’s political theory, I suggest that making the public ‘see’ the role of judgment in the current undeclared emergency regime underpin the re-constitutionalization of emergency powers. Recast in constitutional mindset, the judiciary is expected to act as the institutional catalyst for forming the public judgment on the ongoing state of emergency.

1 Introduction The question of emergency powers has been brought back to the centre of constitutional theory amid the new ‘long war’ on terrorism (Ackerman 2006; Gross and Ní Aoláin 2006; Dyzenhaus 2006; see also Griffin 2013, 5–6, 204– 35). Noticeably, this new wave of emergency talk stands apart from the traditional discussion of emergency powers. Traditionally, the debate about the promise and limits of ‘the rule of law under siege’ (Scheuerman 1996) centres on the unexpected, ground-shaking events, which are considered temporary in nature (Rossiter 1948, 5–7, 16–23). In contrast, as the post-9/11 responses to global terrorism have suggested, emergency powers are now more akin to part of a perpetual national security regime than a temporary juridical mechanism. The ‘state

M.-S. Kuo (B) School of Law, University of Warwick, Coventry, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_3

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of exception’1 appears to be turning into a permanent condition, paving the way for the normalization of emergency powers and the general securitization of the juridical order (Frankenberg 2014, 185–220). Facing this new reality of the state of exception, constitutional scholars are unsure how to respond. Some suggest that the state of exception be brought under the reign of the law through more discriminating statutes but caution that the rule of law may instead be undermined with the legal provision for emergency powers (Ferejohn and Pasquino 2004, 234–35). Others point to the political nature of emergency powers and argue that they require political rather than legal responses (cf. Gross and Ní Aoláin 2006, 110–70; Poole 2015). In this paper, I aim to provide a prognosis of the uneasiness about the question of emergency powers in contemporary constitutional scholarship. I shall argue that constitutional scholarship on the state of exception and emergency powers has long centred on the idea of institutional sovereignty.2 What distinguishes among scholars is their preferred institutional holder of sovereignty that exercises the ultimate control over emergency powers (Sect. 2). With the normalization of the state of exception, I contend, this control paradigm in conceiving the constitutionalization of emergency powers,3 which is underpinned by institutional sovereignty, is untenable. This is the root cause of the uneasiness about the state of exception in contemporary constitutional scholarship (Sect. 3). I suggest that the question of emergency powers be reconsidered outside the control paradigm. Departing from the law vis-à-vis politics dichotomy, I argue that conceiving the domestication of the state of exception should focus on how judgements concerning the state of exception are contested. The domestication of the seemingly perpetual state of exception lies in the rediscovery of the importance of responsibility vis-a-vis political judgment in the constitutional order. Through this lens, the court functions as the catalyst for forming the collective public judgment on the state of emergency. It is constitutional mindset, not the power of settlement, that will make the new judicial role possible, holding the key to the question of emergency powers (Sect. 4).

1 The

‘state of exception’, as opposed to the ‘state of normalcy’, refers to the factual situation in which the ordinary rule of law is considered dysfunctional. I refer to those extraordinary powers the government adopts in the state of exception as ‘emergency powers’ or alternatively the ‘state of emergency’. Thus, in contrast to the ordinary rule of law that governs the state of normalcy, the state of emergency (or emergency regime) is the alternative juridical regime in response to the state of exception. I thank Eli Salzberger for helping me rethink and clarify these concepts. 2 As shall become clear, the problem of institutional sovereignty in the control paradigm evokes what Hermann Heller called ‘organ sovereignty’ whose equation with state sovereignty lies at the centre of his critique of German public law theory in the early twentieth century (see Heller 2019, 101–04, 106–07). 3 For the present purposes, the constitutionalization of emergency powers refers to the way that emergency powers are addressed in constitutional orders, which may take the constitutional or statutory form. Whether they are considered ‘extra-legal’ and subject to what Oren Gross and Fionnuala Ní Aoláin call ‘ex post ratification’ or act as a supra-constitutional norm as the Schmittian conception of sovereignty suggests, both instances are taken as the modes of the constitutionalization of emergency powers (cf. Gross and Ní Aoláin 2006, 162–70).

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2 Under the Wings of Sovereignty: Liberal Answers to the Challenges from the State of Exception In this section, I first discuss what I call ‘normative duality’ at the core of liberal responses to the question of emergency powers, by which the law is set apart from the political state of exception and thus would be saved from being overwhelmed by the exercise of emergency powers. From this underlying normative feature, I then turn attention to how it has worked out in institutional terms and suggest that institutional sovereignty has constituted the pivot of the liberal strategies to constitutionalize the state of exception.

2.1 Managing Distinction: Law and Politics Under Normative Duality Despite the disagreement on the juridical character of emergency powers among scholars, it is acknowledged that crisis-induced exceptional situations exert massive impact on the state of normalcy, which both constitutes the precondition for the rule of law and is governed by the law (Kahn 2011, 59). The debate over emergency powers concerns whether the law and its application extend beyond the normal situation to the fundamentally different factual situation, namely, the state of exception (Agamben 2005, 9–11). Is the exceptional situation a state of lawlessness free of both legal and supra-legal constraints? If not, does it suggest that the state of exception can be extra-legal but not lawless? Can the state of exception be considered norm-generative to the extent that it induces a set of extra-legal norms (ibid., 1–2)? Oren Gross and Fionnuala Ní Aoláin’s tripartite typology of the legal regulation of emergency powers offers a good access to these fundamental questions. Under Gross and Ní Aoláin’s first model, ‘accommodation’, emergency powers are ex ante stipulated in the constitution or other statutes but apply only to the state of exception that displaces the normal situation. Viewed thus, emergency powers function as predetermined legal measures in response to a different factual situation than normalcy (see Gross and Ní Aoláin 2006, 17–85). In contrast, under what they call the ‘business-as-usual model’, there is no such thing as emergency powers at least in the eyes of the legal order. The measures taken in response to the state of exception are simply one of the various applications of ordinary legal norms to a factual situation and thus their legality is subject to the same legal scrutiny. The law is recalibrated but its normative character remains unchanged when the unusual facts arise from the state of exception (see ibid., 86–109). Gross and Ní Aoláin’s third model, ‘extra-legality’, appears to occupy the middle ground. To begin with, echoing the business-as-usual model’s insistence on the unitary character of the legal order, the extra-legality model subjects the legality of emergency powers to the same scrutiny of ordinary legal rules. On this view, emergency powers are illegal when they are in use in that they are ultra vires acts

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that exceed the authorization of the general (ordinary) legal rules (see ibid., 111–12). Yet, the business-as-usual and extra-legality models diverge on a more fundamental issue. Departing from the business-as-usual model, the extra-legality model accepts that the illegality of emergency powers can be cured through various ex post ratifications (see ibid., 130–62). This distinctive feature moves the extra-legality model closer to the accommodation than to the business-as-usual model in that emergency powers are retrospectively brought back to the rule of law. According to the extralegality model, emergency powers are neither a recalibrated application of ordinary rules as the business-as-usual model suggests nor merely an invocation of predetermined legal measures under the accommodation model. Taken together, all the three models agree on the factual distinction between exception and normalcy but hold differing attitudes towards the normative character of emergency powers in response to the state of exception, suggesting a deep anxiety over the relationship between law and politics at the core of legal liberalism. As the global practices of emergency powers have suggested, the legal framework that governs emergency powers, whether it is constitutional or statutory, has to be flexible enough to accommodate unforeseen incidents (see ibid., 79–85). Specifically, procedures concerning the activation of and the subsequent exercise of emergency powers are provided for in the governing legal framework.4 In contrast, the substance of emergency powers is defined in a way to be sufficiently accommodating of the needs of actual situations. Even without the inclusion of the catch-all clause in the emergency legislation, the ex ante catalogue of emergency powers is more likely to be deemed illustrative rather than exhaustive as the state of exception may well induce extra special measures (cf. Ackerman 2006, 90–100). Yet, this shows the limits of the accommodation model as attempts to ex ante regulate emergency powers appear to be just wishful thinking. The foregoing criticism is correct but only to an extent. It is correct to note the limitation of legal positivism that underpins the accommodation model (Scheuerman 2016, 197). Yet, it misses the point: the accommodation model assumes that even uncodified measures are not lawless pure forces. Specifically, from the perspective of the accommodation model, uncodified emergency measures are not considered complete anathema to the normative character of the law to the extent that they are framed and thus contained by the actual situation. Uncodified emergency measures are not lawless as they derive their juridical character from the political dynamics of decision-making corresponding to the state of exception (see Schmitt 2004, 67–84; cf. Honig 2009, 66–67). Seen in this light, the accommodation model considers both law and politics ‘jurisgenerative’5 and interrelated despite their distinct characters. In other words, the accommodation model conceives of two normative orders: the ordinary rule of law and the state of emergency. The normative duality of the ordinary rule of law and the regime of emergency powers appears to lie at the core of

4 The

post-apartheid South African constitution is a good example (see Ackerman 2006, 89–90).

5 By jurisgenerative, I mean the conceivable generation of norms in the political process, which may

be extralegal but some of them may develop into part of the legal order later (see Cover 1983).

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the accommodation model only. In contrast, under the business-as-usual and extralegality models politics appears to be threat to the legal order as all emergency powers are the instances of pure political forces situated outside the legal order. Yet, upon a closer inspection, the difference between the accommodation model and the other two models is not as fundamental as is suggested above. Although both the business-as-usual and extra-legality models insist that emergency measures be subject to the scrutiny of ordinary legal norms, neither rules out the relevance of the exceptional situation to the question of legality. Instead, decisions on the legality of executive actions, including those taken in the state of exception, are always context-sensitive (see Vermeule 2009, 1119–21). Through context-sensitive interpretation, the ordinary rule of law is effectively recalibrated to address the emergency measure in question. Seen in this light, the business-as-usual model amounts to what Gross and Ní Aoláin identify as ‘interpretive accommodation’ under the accommodation model (Gross and Ní Aoláin 2006, 72–79). Emergency powers are not totally lawless but operate under the recalibrated legal order. Thus, the business-as-usual model comprises two rather than one normative orders. The dualist character of the extra-legality model is even more obvious. As noted above, the legality of emergency measures is to be determined through ex post ratifications under the extra-legality model. Gross and Ní Aoláin further point out that what underlies the extra-legality model is an ‘ethic of political responsibility’ (see ibid., 113–34). To be specific, the ex post ratification is a collective political and normative judgement on the emergency measures taken in the exceptional situation.6 Pertaining to my present discussion, decisions as to whether to take what kind of emergency responses in the exceptional situation would be made with the prospective ex post judgment in mind (ibid., 147–53). In this light, emergency powers are not lawless politics but guided by the ethic of political responsibility, which operates as a distinct normative order from the ordinary rule of law governing the normal situation (Ignatieff 2004, 25–53). Taken together, not only does the accommodation model rest on normative duality but the business-as-usual and extra-legality models are also organized around it. Then arises the question: Why is the regime of emergency powers as a distinct normative order deliberately obscured or even denied as the business-as-usual and extra-legality models indicate? This question can be answered in light of how the relationship between law and politics is conceived of in liberal constitutional orders. Constitutional order is an institutional framing by which politics and law are in constant dialogue with the aim of structuring and taming political forces. Yet, the law is equated with a rulebased juridical order in the hands of legal liberalism (Shklar 1964, 1–28). As a result, politics, which operates more on prudential judgment than on legal rules, is deemed as corrosive of the normativity of law. Given that the state of exception tends to elicit responses beyond what the legal rules have provided for, it is considered the epitome of politics unmoored from normativity, or rather, the expression of sovereignty (Frankernberg 2014, 97–100; cf. Schmitt 1988, 1). Seen in this light, 6 Gross

and Ní Aoláin note that ‘the [extra-legality] model…retains sovereignty…with the people’ (Gross and Ní Aoláin 2006, 170).

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the denial of normative duality in the business-as-usual and extra-legality models reflects the deep suspicion of politics and ambiguities about sovereignty in legal liberalism (see Dyzenhaus 2006, 39).7 It transpires that whether termed normative duality or not, the separation of the ordinary legal order from emergency powers is instrumental in the management of the relationship between law and politics in liberal constitutional orders (see Gross and Ní Aoláin 2006, 171–72; see also Kahn 2008, 149–58). Moreover, normative duality underlies the prevalence of the ‘switch mode’ in the constitutional/legal regulation of emergency powers (Ferejohn and Pasquino 2004, 239; but see Dyzenhaus (2006), 196–220). Under this universal model of emergency constitution, the mode of law rules in the state of normalcy. When crisis displaces the state of normalcy, the mode of law will be switched to that of emergency powers, which is aimed to address the crisis-generated state of exception and to restore the state of normalcy, a precondition for the functioning of the mode of law. In this light, the exercise of emergency powers is more of a function of politics than the application of law.8 Yet, as noted above, the state of exception that is governed by emergency powers is not chaos or anarchy. Rather, the better view is that the state of exception indicates a differently ordered situation in which decisions and concrete measures are taken against actual, exceptional political circumstances even at the expense of the legal rules to create the horizon on which the normal situation rests (see Schmitt (1988), 12; but see Gross and Ní Aoláin (2006), 162–70). Normative duality provides the conceptual tool for managing the distinction between law and politics in the constitutionalization of emergency powers.

2.2 Sovereignty Reified: Institutional Dominance and the Constitutionalization of the State of Exception If my characterization of the constitutionalization of emergency powers as the embodiment of normative duality is correct, who has the authority to order that the mode of law be switched to that of emergency powers is central to the constitutional question of emergency powers. As emergency powers are the response to the factual situation of exception, the question of who orders the switch thus translates into that of who has the final say over whether the situation has turned from normalcy to exception. Furthermore, considering the extraordinary character of the emergency regime, the one who has the final say on the existence of the state of exception effectively holds the ultimate authority of the juridical order and thus acts as if he were the holder of sovereignty. To no one’s surprise, this formulation of 7 Notably,

Ernst Fraenkel pointedly distinguished such normative duality from what he called ‘the dual state’ of Nazi Germany in which ‘the “political” sphere is …an omnipotent sphere independent of all legal regulation’ (Fraenkel 2017, 68–69). 8 John Locke’s concept of prerogative is the classical example (see Poole 2015, 51–52).

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how emergency powers are operationalized in the constitutional order echoes Carl Schmitt’s polemical proposition ‘[s]overeign is he who decides on the exception’ (Schmitt 1988, 1). I hasten to add that Carl Schmitt does not have the last word on the question of emergency powers and many flaws have been found in his theory of dictatorship (see generally Scheuerman 1999). Nevertheless, Schmitt illuminates the importance in the identification of ultimate authority in conceiving of emergency powers in the constitutional order as epitomized in his association of emergency powers with the institutional reification of sovereignty. Specifically, according to Schmitt, the chief executive is the institutional holder of sovereignty and has the monopoly on the decision concerning the switch from the ordinary rule of law to emergency powers and vice versa. The control of this crucial switch is completely in the hands of the executive power (Schmitt 2014, 8–9, 154–55, 159–60). Schmitt’s attribution of sovereignty to the chief executive has been taken as an indication of his authoritarian proclivity. He has been criticized for essentially leaving the emergency regime to the whims of the chief executive’s individual will (Gross and Ní Aoláin 2006, 167). For this reason, his theory of emergency powers is nihilistic and anti-constitutional and has been accused of conspiring to topple the troubled Weimar Republic (see Scheuerman 1994, 17–24, 131–40). Nevertheless, Schmitt’s overzealously following the chief executive’s will also reflects the public’s anxious call for rapid reassuring reactions from the government when constitutional normalcy is hit by unforeseen events and perceived as plunging into an existential crisis (Ackerman 2006, 44– 47). If so, it seems that we may still draw lessons from Schmitt in making sense of emergency powers. But is that really so? Concerns about reassuring the anxious public in times of crisis are legitimate in any constitutional order (ibid.; see also Tribe and Guridge 2004, 1811). Among the constitutional powers, the executive appears to be the most capable of acting rapidly to reassure the public (Schmitt 2014, 8–10). But all this is premised on the real existence of the exceptional situation that calls for rapid government responses. If the claimed state of exception is only a creation of government propaganda, the rapid responses from the executive power would become repressive, not reassuring (cf. Tribe and Guridge 2004, 1814). This is where the architecture of Schmitt’s executive theory of emergency powers crumbles. In his theory, the state of exception is not an actual situation but rather the chief executive’s personal view of various occurrences (see Ferejohn and Pasquino 2004, 226). As John Ferejohn and Pasquale Pasquino suggest, normative duality that frames the constitutionalization of emergency powers works only when both the ontological and epistemic dimensions of the state of exception are taken into account. Without the ontological assumption that a real state of exception, as opposed to a perceived one, is actually different from normalcy, the constitutionalization of emergency powers would degenerate into Schmittian authoritarianism (ibid.). Apart from the ontological dimension, however, to make emergency powers a friend rather an enemy of the constitutional order, it is necessary to consider the epistemic dimension of the state of exception. How to differentiate the real state of exception from the false one is central to the institutional design of emergency powers (ibid.).

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A quick look at the constitutional provisions concerning emergency powers or other legislation concerned the world over suggests that the chief executive remains an active role in switching on emergency powers (see Martinez 2006, 2495–2503). Yet, departing from the Schmittian ideal type of dictatorial executive, the initiative taken by the administration is no longer conclusive. Even in those countries where the executive power is constitutionally authorized to initiate emergency measures to respond to extraordinary events, their duration is not unlimited. Instead, they are allowed to exist on their own only for a pre-determined short period of time, functioning as a stopgap mechanism. To extend beyond, they require the parliamentary approval (ibid.). Political cooperation between the executive and the legislative power has replaced executive monopoly as the prevailing model of emergency powers in the post-WWII constitutional practice (see Ackerman 2006, 68–69). The requirement of parliamentary approval is seen as indicative of the importance of political control in the post-war constitutionalization of emergency powers. The aggrandized executive power in times of crisis is to be tamed through checks and balances between the political departments (ibid., 77–100). More important, apart from the function of control, the role the legislative power plays in the decision on the activation and extension of emergency powers is to address the epistemic issues arising from the state of exception as noted above. As civic republican theories note, the separation of powers is not only instrumental to the idea of limited government but also an institutional mechanism to improve the quality of policy decisions (cf. Waldron 2016, 46–54). Cognitive errors concerning the state of exception are expected to be filtered out through the institutional dialogue between the administration and the parliament (cf. Vermeule 2014, 143).9 Despite the variations on the institutional design with respect to the separation of powers, epistemic uncertainty surrounding the factual state of exception is thus minimized in this process. Through this constitutional vetting, the real state of exception is more likely to be differentiated from the false one than under the Schmittian dictatorial executive model. Moreover, as Jeremy Waldron meticulously argues, the parliament as a multi-member body is epistemically superior to the administration in reaching the conclusion on the realization of the state of exception (see Waldron 1999, 49– 146). In sum, the supreme legislature seems to displace the chief executive as the ultimate constitutional power in deciding whether to switch from the mode of law to that of emergency powers in the post-war constitutional design. Nevertheless, the record of the legislative role in this regard is not particularly glorious. Even equipped with the supermajority requirement, the parliament has not been effective in resisting the public calls for switching on emergency powers or endorsing the executive’s initiatives. As its theoretical epistemic superiority yields to popular emotion, the political control expected of the legislative power also falls short (see Tribe and Guridge 2004, 1816–19). Against this constitutional horizon the focus of how to constitutionalize emergency powers shifts from who will switch the mode to who will pass the final judgment on the validity of emergency responses (cf. 9 One

of the functions of the separation of powers is to filter out cognitive errors in general policymaking (see Sunstein 1993, 17–39).

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Gross and Ní Aoláin 2006, 137–42). Here is where the judiciary comes into play in the discussion of emergency powers. In line with the court’s enhanced role in the post-WWII constitutional landscape, emergency powers are subject to judicial control in terms of legality (see Cole 2003). It is true that the judiciary is unlikely to overturn the political decision to switch on emergency powers (see Ackerman 2006, 101–02). Worse, its wartime record is not quite reassuring (ibid., 61–64; Cole 2003, 2568–71). Yet, it is not the end of the constitutional judgment. Instead, emergency measures taken in times of crisis remain subject to judicial scrutiny even post the state of exception (see Dyzenhaus 2006, 197–98). Speaking through its rulings, the judiciary passes the final judgement on the instances of emergency power. In this way, the judicial power emerges as the centre of control in regard to the constitutionalization of emergency powers (see ibid., 54–59, 129–49). My discussion of how the constitutionalization of emergency powers has evolved in theory and practice does not suggest a linear movement from the executive to the legislative to the judicial power in the quest for reconciling the state of exception with constitutionalism. Rather, all the three powers are important players in the decisional dynamics of emergency powers (see Ackerman 2006, 66). There is no agreement among scholars on which constitutional power is best placed to answer the challenge from the state of exception (compare ibid., 77–100 with Cole 2003). Yet, the above discussion points to the common concern over emergency powers in commentary: Control is the key to constitutionalize emergency powers. Moreover, the department that controls the constitutional status of emergency powers, whether through initiation or approval or ruling, effectively holds the ultimate authority, a reified sovereignty, as its judgment is considered dominant. Echoing Hannah Arendt’s definition of sovereignty as domination (see Arendt 1990, 24–31; Arendt 1998, 234– 35; see also Arato and Cohen 2009), I suggest that liberal responses to the state of exception, as the post-war constitutional theory and practice have shown, can be characterized as what I call the control paradigm, the pivot of which is the institutional reification of sovereignty.

3 From Constitutional Control to Legal Management: Broken Liberal Promises in the Age of Normalization Now I take stock of the control paradigm as identified above in light of present exceptional situations. Let us start with the current condition of the state of exception: the normalization of the state of exception. As has been widely discussed in literature, this new condition has resulted in the perpetuation of the regime of emergency powers, posing fundamental challenges to the switch mode prevalent in liberal constitutional orders (see generally Frankenberg 2014; see also Ackerman 2006, 47–49). At first glance, this appears to be another instance of how new fact induces legal change.

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Yet, a closer look at the organism of normalization will tell us a much more complex story. To begin with, the normalization of the state of exception is not simply the result of new actual situations. It is the product of both fact and norm. As I have noted in Sect. 1, the state of exception traditionally refers to unexpected, sudden incidents. They are presumed to be rare and transient. Yet, as The Troubles in Northern Ireland shows, the state of exception may last as long as three decades. In addition, some structural developments also increase the frequency of crisis. With economic globalization and the continuing securitization of financial assets, not only the stakeholders but also the fabric of the globalizing society is ever prone to the ramifications of any financial crisis. The state of exception is structurally inscribed into the global economy and the financial market if you will (see generally Reynolds 2012). The breakdown of the global financial market and the Euro crisis bear witness to this development (ibid.). Apart from these new facts, however, normative changes contribute to the normalization of the state of exception, too. The so-called global war on terrorism epitomizes this development. Instead of contesting the war-like character of this long struggle, my present focus is on the targeted object ‘terrorism’ itself. Unlike actual incidents, terrorism as a target is elusive. To eradicate terrorism means killing off the thoughts or ideologies that may motivate it (Gordon 2007). Yet, thought or idea is hard to kill. Taking on terrorism as an instance of emergency-triggering incident effectively paves the way for the normalization of the state of exception (Macken 2011, 94). The joint force of changed fact and legal construction results in the normalization of the state of exception. Once the state of exception is normalized, the relationship between the ordinary rule of law and the regime of emergency powers also changes. In correspondence with the normalization of the state of exception, emergency powers are perpetuated in two ways. First, as Taiwan’s four-decade long martial-law rule shows, the emergency power regime suspends the normal constitutional order. During the reign of martial law, all security agencies, including the police, were placed under the command of the military (Roy 2002, 91–92). The civilian control of the military enshrined in the constitution was dispensed with (see Croissant et al. 2013, 79–96). This example suggests that an extended emergency regime does not just ‘derogate’ from the normal rule of law but rather effectively ‘abrogates’ the entire constitutional order (see Ferejohn and Pasquino 2004, 220). The other way towards perpetuation and normalization is simpler: writing emergency powers into the ordinary rule of law through various statutes. Taken together, the normalization of emergency powers effectively converts the ordinary rule of law into an emergency-responsive legal mechanism, thereby changing the character of the entire legal order (see Frankenberg 2014, 145–46, 189–95). Apparently, the parallel development of normalization and perpetuation bears greatly on the control paradigm and the liberal constitutional order in general. The first and foremost effect is the dismantling of the conceptual framework of normative duality as the distinction is blurred between the ordinary rule of law and the emergency regime (ibid., 190–91). The impact of normalization is not on the conceptual level only. The institutional design of the constitutionalization of emergency powers

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is affected, too. As discussed in Sect. 2, that institutional sovereignty occupies centre stage in the control paradigm is premised on normative duality. Once emergency powers are perpetuated to the extent of merging themselves with other ordinary legal tools, however, the holder of institutional sovereignty becomes obscured. And this is the real problem. Specifically, the parallel development of normalization and perpetuation obscures the identity of institutional sovereignty with the dispersal of the decisions to invoke emergency powers. In the age of normalization, the legislature makes decisions on emergency powers piecemeal through ordinary legislative procedures. When emergency measures are introduced into the statutory framework this way, they become one among the numerous legislative bills waiting to be debated and voted on. It would be a tall order for parliamentarians (as well as the public) to constantly keep a close eye on individual emergency measure bills. As a result, while the parliament’s legislative role remains unchanged, the political control the public expect it to exert on the emergency regime wanes. The constitutional requirement of parliamentary approval in the invocation of emergency powers effectively degenerates into a constitutional desuetude (cf. Roach 2008, 245). The dispersal of emergency powers also transforms the administration in a fundamental sense. The invocation of emergency powers is not a decision taken by the chief executive in times of crisis any more. It is just one of the many policy tools within the discretion of individual civil servants. Like other policy tools, whether to resort to emergency measures are among the myriad choices they make in everyday bureaucratic routines. Likewise, expertise and experience provide the legitimacy for the technocratic choice of emergency responses over other policy tools (see Poole 2015, 207–09). Moreover, as security and risk prevention are prioritized on the administrative agenda, civil servants are gradually acculturated to rapid and forceful responses (Frankenberg 2014, 200–03). From out of the administration impregnated with a security culture we see looming the ‘national surveillance state’ and the ‘security society’ (ibid., 145–46; Balkin and Levinson 2006). As noted above, judicial control is considered remedial to the flawed political control under the control paradigm. While the judiciary may be forgiving of executive actions amid the crisis, its rulings are still of constitutional importance after the state of exception as they reframe and reassess emergency powers in normative terms. Yet, with the dispersal of emergency powers and their embedding in everyday bureaucratic routines, the focus of the judiciary also shifts. The cases before the court are no longer instances of trial on the validity of emergency measures and the constitutionality of the decision to switch on the emergency regime. Instead, they are just among other administrative decisions of the modern regulatory state under judicial scrutiny. On this view, what is required of the judges is not so much their fidelity to constitutional principles and normative values as their knowledge of the complexity of risk and crisis prevention and their appreciation of the way policy choices are made in the modern technocracy. As a result, the judicial scrutiny of the piecemeal, normalized emergency responses looks more like part of the modern-day management of crisis and emergency that requires the interdepartmental cooperation between the administration and the court (Frankenberg 2014, 93–96, 190–207).

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Yet, like ordinary administrative law cases, the judiciary oscillates between deference and micromanagement. Deferring to the administration’s policy choices, the judiciary will leave emergency powers to the hands of the administration, creating legal ‘grey holes’ (see Vermeule 2009, 1118–31). In contrast, the judiciary will be prone to criticisms of micromanagement by interfering with the administration’s policy making if it attempts to conduct an exacting scrutiny of emergency responses (Yoo 2006, 238). Either way, the judicial control of emergency powers is lost in the managerial ambience of the administrative state (see generally Christensen, Goerdel, and Nicholson-Crotty 2011).

4 Beyond Control: Judgment, Constitutional Mindset, and the Domestication of the State of Exception As has been widely noted, the normalization of the state of exception is a result of fundamental changes on the presupposition of normative duality (see e.g. Frankenberg 2014, 185–220). There is no returning to the control paradigm. Yet, a closer look at how the state of exception is to be managed under that paradigm may give us some clues as to the way out of the current permanent state of emergency. In contrast to the dispersal of emergency powers in the age of normalization, the time when the emergency regime is switched on is clear under the control paradigm. The moment of the executive initiation and the legislative approval is unmistakable. Moreover, the court is conscious of its constitutional role in the regulation of emergency powers when an emergency measure-caused case comes before it. Of course the judicial scrutiny may not always be exacting. Nevertheless, there will be no doubt as to whether emergency measures are on trial. All these features are essential to the functioning of the control model. Notably, the transparency of who takes decisions leading to the switch-on of the emergency regime and when such decisions are taken are more than a requirement of clearness under the rule of law (Fuller 1969, 39). It further suggests that what underlies the post-war constitutionalization of emergency powers is the clear identification of who takes part in the decision-making process rather than who holds the ultimate power of control. As my discussion of the twin phenomenon of normalization and perpetuation indicates, the problem with the current permanent state of emergency is its elusiveness and obscurity due to the dispersal of the decisions on emergency measures. Neither the public nor the institutional players are able to ‘see’ the coming of the emergency regime and its exceptional character. Hannah Arendt can help us see why ‘seeing’ is important when we reconceive the constitutionalization of emergency powers. According to Dana Villa, components of ‘theatricality’ are crucial to understanding Arendt’s theory of politics and political action (Villa 1999, 128–54). Arendt pivoted the realization of politics on the engagement of the members of the political community. What is required of citizens is not only the engagement in the public issues but also their engagement with one another. The second aspect of engagement

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is of special pertinence to my present discussion. Engagement in this sense consists of interacting with fellow citizens and debating with them on public issues in the public realm (Arendt 1998, 50, 54). It is through such engagement that thought is turned into reality and a common world, namely, the community, materializes (ibid., 50–53). Yet, to engage with his compatriots, each citizen has to be ‘seen’. Not being seen, a lone citizen virtually vanishes from the public scene on which his compatriots engage with each other. Correspondingly, ‘seeing’ fellow citizens is equally crucial to this deliberative community. Seeing, or rather ‘meeting’, enables a citizen to interact with rather than simply to react to his compatriots. This is what engagement means (ibid., 50, 57). Seeing, being seen, and the resulting interaction among citizens not only underlie the theatricality of politics but also enable citizens to partake of the collective subjecthood vis-à-vis the choices taken by the political community (see ibid., 175–88). In this light, the importance of the transparency of who takes decisions leading to the switch-on of the emergency regime and when such decisions are taken becomes clear. It enables the institutional players to see and thus engage with each other. Moreover, it makes the emergency regime itself and the institutional players’ respective positions on it visible to citizens. Seeing the vices and virtues of the emergency regime, the public will be able to decide what to do about it and to judge how the institutional players have performed. Institutional sovereigns, namely, the central players in staging the emergency regime, can thus be held responsible for their emergency judgments through the collective judgement of the public. At the last analysis, what makes the control paradigm function is not the formal structure of normative duality or the attribution of emergency powers to an ultimate institutional sovereign. Rather, it is the Arendtian political interaction that underpins the control paradigm. Thus, the debate as to whether the judicial power or the political branch has better control over the emergency regime just misses the point. Both are the demonstration of the law-politics interaction in constitutional orders. To put it bluntly, the judicial power and the political branch are part of the broader political process to rein in emergency powers through constitutional framing (Ackerman 2006, 77–12). The control paradigm is essentially political in this fundamental sense and should be reconceived in this light. If it is not just the law but the law-politics interaction that makes the constitutionalization of emergency powers work, it seems to suggest that a new political response should be considered in the age of normalization when institutional sovereigns have disappeared from the public eye. I have already noted that the dispersal of emergency powers is the underlying cause of the malfunction of the control paradigm. Disguised as part of the complex crisis response and risk prevention mechanism, emergency measures appear to be the automatic product of the colossal administrative machine (cf. Farazmand 2014, 41–42). Viewed thus, emergency measures are ostensibly rid of human judgment and become programmed responses. As the programming of crisis response and risk prevention is too complex for the outsiders to understand, managerial rationality demands deference of the judiciary (Honig 2009, 67–68). What is concealed under the assumed superiority of the expertise-based administrative rationality to the judicial scrutiny is the legacy of institutional sovereignty under

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which a dominant power must be identified even though it may turn out to be just a placeholder. Only this time, what dominates is neither the chief executive nor other constitutional powers but the institutional ideology that governs the administrative state.10 In the shadow of institutional sovereignty, the end result is the uncontrolled emergency regime with emergency measures ready to be deployed. Against this backdrop rediscovering the role of judgment is the antidote to the perpetuation of emergency powers. But, how? Do we need to press the reset button, if any, to start the design of the emergency constitution from scratch? Is it even conceivable? Fortunately, the experiences of constitutional ordering in the post-war era can serve as the repertoire of knowledge in this regard. Learning from this repertoire of constitutional knowledge, Martti Koskenniemi makes a prognosis of the current condition of the international legal order (see Koskenniemi 2006, 2007), which can also shed some light on the question of emergency powers. To counter the developments of ‘deformalization’, ‘fragmentation’, and ‘empire’, he observes, managerialism seems to be international lawyers’ answer (Koskenniemi 2006, 13). Yet, he argues that the three developments requiring resistance are the product of managerialism (ibid., 13–17). He contends that to stop deformalization, fragmentation, and empire requires the shift of mindset from managerialism to constitutionalism. With constitutional ‘mindset’ instead of constitutional ‘architectonics’ (ibid., 31), the managerialism-driven developments will be seen as the product of judgment. For this reason, Koskenniemi strikes an optimistic note on the future of the international order, suggesting that constitutional mindset can help redefine the debate in terms of politics instead of techniques (Koskenniemi 2007, 19). Through this lens, constitutionalism as mindset appears to hold the key to the rediscovery of the role of judgment in the age of normalization, too. In an ideal political world, every citizen has constitutional mindset and will be able to deliver the collective judgment jointly with his compatriots on the perpetuated obscure emergency regime (Honig 2009, 69). Unfortunately, the real world is anything but ideal. So, whither the search for constitutional mindset? In view of the international legal order, Koskenniemi points to international lawyers (Koskenniemi 2006, 18), who have been central to the origin and evolution of international law (see Walker 2015, 47–54). Turning the focus to domestic legal orders, we may pin hopes on the national apex courts hearing constitutional cases when their role is recast in the terms to be fleshed out. I hasten to add that this is neither a prescription for more legalism nor an advocacy for judicial supremacy. Instead, this is a critical rethinking of the operationalization of emergency powers that draws inspiration from the post-war constitutional experiences. As Bruce Ackerman observes, one of the greatest achievements in the postwar political order is that politics can be conducted in constitutional terms. National constitutional or supreme courts are the key players in this post-war new politics (see Ackerman 1996). Moreover, the success of this new politics to which the global spread of constitutional review bears witness relies more on the political character of judges than on their lawyerly techniques (see e.g. Ellmann 2009). The judicial 10 This points to the relationship between sovereignty and governmentality (see Dean 2014, 19–44).

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practice of proportionality analysis illustrates this point. While it appears to give the judge a fig leaf so that his micromanagement of policies can be concealed, the component of judgment in the stage of balancing opens the judge and his reasoning to the judgment of the public (cf. Perju 2012). With the ostensible exception of the United States, the worldwide adoption of proportionality analysis suggests the judicial function and its legitimacy being reconsidered through the lens of the interaction between the judiciary and the public in this post-war new politics (see Gardbaum 2014). Thus, if the judiciary wakes up to the calls for constitutional mindset, it may pave the way for a new political model of (re)constitutionalizing the dispersed emergency powers by helping citizens see the face of the emergency regime and focusing the public mind on the role of judgement in the age of normalization. To see how it works, let us take a closer look at the new role expected of the judiciary in the face of the perpetual emergency regime. As noted above, the twin development of normalization and perpetuation has turned the constitutional provisions on emergency powers into constitutional desuetude. We live in a de facto undeclared state of emergency if you will. Being undeclared, the current emergency regime is invisible to the public. Thus, a declaration will be necessary to enable the public to see the emergency regime and to see it as resulting from judgments, not an automatic product. Then who can declare the existence of the state of emergency? My answer is the judiciary. Specifically, declared or not, emergency-responsive measures will likely be tested in the court sooner or later. As the preceding section suggests, they are currently disguised as administrative policy choices and thus tend to be handled in managerial terms. Yet, it is not the only way to decide those cases. They can be treated as the result of an undeclared state of emergency instead. Thus, under the new model, when a case of this kind reaches the constitutional or supreme court, the court should declare the government act at issue to be an emergency measure. The moment when the administration took the disputed measure should be seen as the inception of the state of emergency. And the court should declare that the state of emergency had ended at the time when the case reached it. With this judicial construction of the de facto emergency regime, some beneficial changes should be expected. First, through the proposed retrospective double judicial declaration of the state of emergency, the judiciary can redefine its relationship with the executive power and thus free itself from the acculturation of judicial deference to administrative expertise and experience and other dictates of managerialism. Through this lens, the de facto emergency measure on trial will no longer be seen as the product of the rational management of the administration. Rather, it will be treated as the question of political judgment, the responsibility for which is to be assessed against constitutional framing of institutional powers. Moreover, by its declaration, the judiciary can focus the public mind on the emergency regime under which they are living. Obviously, the judicial ruling under this model will not have the final say over the mini-state of emergency but can only tell the public that the disputed action is the result of judgment for which the actor must be held responsible. It is just part of the political process leading to the collective judgment of the mini-state of emergency. By turning each emergency-related case into a

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mini-version of ex post ratification, the judiciary can open the seemingly perpetual undeclared state of emergency to the collective constitutional judgment. In sum, the new role expected of the court to play is the catalyst for forming the collective public judgment on the de facto emergency regime instead of the arbitrator under the control paradigm. Before concluding my present discussion, some issues and questions deserve further examination. One fundamental question concerns the judicial role: Is it realistic at all to expect the judiciary to be immune from the public atmosphere that has precipitated decisions on the state of exception and rendered the control paradigm dysfunctional? My answer is that the recast role of the judiciary should give us some hope. Under the control model, the judiciary is expected to play the role of arbitrator that passes the final judgment on the emergency regime. The ultimate responsibility of control falls on the judge’s shoulders. It is just too much for the judicial power in the face of exceptional situations (Ackerman 2006, 60–64). In contrast, the new role the judiciary is expected to play in the age of normalization is much more modest. It is limited to making the public aware of the existence of an undeclared state of emergency, leaving the final judgment to the public. Even if the court approves of the de facto mini-state of emergency, its declaration on the existence of such a situation will be catalytic in bringing the unnoticed question of emergency powers to the forefront in the public debate. Considering its track record in the post-war era, this new but limited role is not much to ask of the judicial power. Notably, the above proposal on the judicially constructive mini-state of emergency may well be rejected as counterintuitive. My response is that counterintuitive as it is, it is not unimaginable. And constitutional mindset works when we start the process of reimagining the constitutional order (see Koskenniemi 2006, 32; see also Cover 1983, 10). All this can be achieved if the judge is willing to view the case with constitutional mindset in the face of the normalization of the state of exception.

5 Conclusion In this paper, I have attempted to rethink the constitutionalization of emergency powers in view of the normalization of the state of exception. To this end, I first took a close look at how the state of emergency power is conceived of in liberal constitutional orders. I identified the control paradigm as the liberal answer to the state of exception. Conceptually, it is premised on the normative duality of normalcy and exception; institutionally, it pivots on the identification of institutional sovereignty that passes the judgement on the state of exception. Yet, the blurring of normalcy and exception in fact and norm has cast doubt on the control paradigm. With more and more emergency measures adopted in criminal law and other ordinary legislation, we have entered the age of normalization in which an undeclared permanent emergency regime has been formed. My diagnosis of the current condition of the constitutionalization of emergency powers showed that the dispersal of emergency measures and the disappearance

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of institutional sovereignty have contributed to its malfunction. Emergency powers have been deformalized and merged into ordinary administrative policy choices. Under the sway of managerialism, the judiciary has failed to rein in the obscure de facto emergency regime. To counter this trend calls for a new political model of emergency constitution that pivots on the rediscovery of the role of responsibility vis-a-vis political judgment in constitutional ordering. Drawing on the role of theatricality in Arendt’s political theory, I argued that making the public ‘see’ the role of judgment in the elusive, obscure state of exception should be central to the re-constitutionalization of emergency powers. On this view, the judiciary is expected to act as the institutional catalyst for forming the collective public judgment on the ongoing undeclared state of emergency. Instead of assuming institutional sovereignty, the judiciary may help domesticate the beast of emergency powers by focusing the public mind on our current situation with constitutional mindset. Recast in terms of judgment and political responsibility, the judiciary under the new model can make the elusive state of emergency visible to the public again and this will do great service to the constitutionalization of emergency powers.

References Ackerman B (1996) The political case for constitutional courts. In: Yack B (ed) Liberalism without illusions: essays on liberal theory and the political vision of Judith N. Shklar. University of Chicago Press, Chicago, pp 205–219 Ackerman B (2006) Before the next attack: preserving civil liberties in an age of terrorism. Yale University Press, New Haven Agamben, G (2005) State of exception (trans: Attell K). University of Chicago Press: Chicago Arato A, Cohen J (2009) Banishing the sovereign? internal and external sovereignty in Arendt. Constellations 16(2):307–330 Arendt H (1990) [1963] On revolution. Penguin, London Arendt H (1998) [1958] The human condition. University of Chicago Press, Chicago Balkin JM, Levinson S (2006) The process of constitutional change: from partisan entrenchment to the national surveillance state. Fordham L Rev 75(2):489–535 Christensen RK, Goerdel HT, Nicholson-Crotty S (2011) Management, law, and the pursuit of the public good in public administration. J Pub Admin Res 21(suppl 1):i125–i140 Cole D (2003) Judging the next emergency: judicial review and individual rights in times of crisis. Mich L Rev 101(8):2565–2595 Cover RM (1983) The Supreme Court, 1982 term—foreword: nomos and narrative. Harv L Rev 97(1):4–68 Croissant A et al (2013) Democratization and civilian control in Asia. Palgrave McMillan, Basingstoke Dean M (2014) The signature of power: sovereignty, governmentality and biopolitics. Sage, London Dyzenhaus D (2006) The constitution of law: legality in a time of emergency. Cambridge University Press, Cambridge Ellmann S (2009) Marking the path of the law. Const Ct Rev 2:97–143 Farazmand A (2014) Global crisis in public service and administration. In: Farazmand A (ed) Crisis and emergency management: theory and practice, 2nd edn. CRC Press, Boca Raton, pp 35–54 Ferejohn J, Pasquino P (2004) The law of the exception: a typology of emergency powers. ICON 2(2):210–239

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Fraenkel E (2017) The dual state: a contribution to the theory of dictatorship (trans: Shils EA). Oxford University Press, Oxford Frankenberg G (2014) Political technology and the erosion of the rule of law: normalizing the state of exception. Edward Elgar, Cheltenham Fuller LL (1969) The morality of law, rev edn. Yale University Press, New Haven Gardbaum S (2014) Proportionality and democratic constitutionalism. In: Huscroft G, Miller BW, Webber G (eds) Proportionality and the rule of law: rights, justification, reasoning. Cambridge University Press, Cambridge, pp 259–283 Gordon PH (2007) Can the war on terror be won? How to fight the right war. Foreign Aff 86(6):53–66 Griffin SM (2013) Long wars and the constitution. Harvard University Press, Cambridge Gross O, Ní Aoláin F (2006) Law in times of crisis: emergency powers in theory and practice. Cambridge University Press, Cambridge Heller H (2019) In: Dyzenhaus D (ed) Sovereignty: a contribution to the theory of public and international law (trans: Cooper B). Oxford University Press, Oxford Honig B (2009) Emergency politics: paradox, law, democracy. Princeton University Press, Princeton Ignatieff M (2004) The lesser evil: political ethics in an age of terror. Princeton University Press, Princeton Kahn PW (2008) Sacred violence: torture, terror, and sovereignty. University of Michigan Press, Ann Arbor Kahn PW (2011) Political theology: four new chapters on the concept of sovereignty. Columbia University Press, New York Koskenniemi M (2006) Constitutionalism as mindset: reflections on Kantian themes about international law and globalization. Theor Inq L 8(1):9–36 Koskenniemi M (2007) The fate of public international law: between technique and politics. MLR 70(1):1–30 Macken C (2011) Counter-terrorism and the detention of suspected terrorists: preventive detention and international human rights law. Routledge, Abingdon Martinez JS (2006) Inherent executive power: a comparative perspective. Yale LJ 115(9):2480–2511 Perju V (2012) Proportionality and freedom: an essay on method in constitutional law. GlobCon 1(2):334–367 Poole T (2015) Reason of state: law, prerogative and empire. Cambridge University Press, Cambridge Reynolds J (2012) The political economy of states of emergency. Or Rev Int’l L 14(1):85–130 Roach K (2008) Ordinary laws for emergencies and democratic derogations from rights. In: Ramraj VV (ed) Emergencies and the limits of legality. Cambridge University Press, Cambridge, pp 229–257 Rossiter C (1948) Constitutional dictatorship: crisis government in the modern democracies. Princeton University Press, Princeton Roy D (2002) Taiwan: a political history. Cornell University Press, Ithaca Scheuerman WE (1994) Between the norm and the exception: the Frankfurt School and the rule of law. MIT Press, Cambridge Scheuerman WE (ed) (1996) The rule of law under siege: selected essays of Franz L Neuermann and Otto Kirchheimer. University of California Press, Berkeley Scheuerman WE (1999) Carl Schmitt: the end of law. Rowman & Littlefield, Lanham Scheuerman WE (2016) Human rights lawyers v. Carl Schmitt. In: Criddle EJ (ed) Human rights in emergencies. Cambridge University Press, Cambridge, pp 175–202 Schmitt C (1988) Political theology: four chapters on the concept of sovereignty (trans: Schwab G). MIT Press, Cambridge Schmitt C (2004) Legality and legitimacy (trans: Seitzer J). Duke University Press, Durham Schmitt C (2014) Dictatorship: from the origin of the modern concept of sovereignty to proletarian class struggle (trans: Hoelzl M, Ward G). Polity, Cambridge Shklar JN (1964) Legalism: law, morals, and political trials. Harvard University Press, Cambridge Sunstein CR (1993) The partial constitution. Harvard University Press, Cambridge

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Tribe LH, Guridge PO (2004) The anti-emergency constitution. Yale LJ 113(8):1801–1870 Vermeule A (2009) Our Schmittian administrative law. Harv L Rev 122(4):1095–1149 Vermeule A (2014) The constitution of risk. Cambridge University Press, Cambridge Villa DR (1999) Politics, philosophy, terror: essays on the thought of Hannah Arendt. Princeton University Press, Princeton Waldron J (1999) Law and disagreement. Oxford University Press, Oxford Waldron J (2016) Political political theory: essays on institutions. Harvard University Press, Cambridge Walker N (2015) Intimations of global law. Cambridge University Press, Cambridge Yoo J (2006) War by other means: an insider’s account of the war on terror. Atlantic Monthly Press, New York

Dr. Ming-Sung Kuo is an associate professor of law at University of Warwick (UK). His research interests are in the fields of constitutional and legal theory, comparative constitutional law, administrative law and regulatory theory, and public international law. He has also written on global constitutionalism and global administrative law, European constitutionalism and integration, and constitutional law and politics in Taiwan. His publications have appeared in leading law journals, including Modern Law Review, International Journal of Constitutional Law, European Journal of International Law, Ratio Juris, Oxford Journal of Legal Studies, and Constellations. He earned his JSD and an LLM from Yale and his LLB and an LLM from National Taiwan University. Dr Kuo previously held a Max Weber Fellowship at European University Institute in Florence (Italy), a visiting fellowship at Max Planck Institute for Comparative Public Law and International Law in Heidelberg (Germany), and a stipendary visiting scholarship with The Danish National Research Foundation’s Centre of Excellence for International Courts (iCourts) at University of Copenhagen (Denmark). He was appointed visiting associate professor at National Taiwan University College of Law in 2015 and 2017.

Judicial Review and Emergencies in Post-Marcos Philippines Dante B. Gatmaytan

Abstract The Philippine Supreme Court aided Ferdinand Marcos by laying the legal scaffolding for his martial law regime. The Court refused to check the President’s power by deferring to the Executive Branch in case of emergencies. When Marcos was ousted in 1986, Filipinos adopted a Constitution that gave the Judiciary the power to review the factual bases of emergency actions. The Supreme Court, however, refuses to use this power. The Court refuses to check the President because of institutional competence constraints, believing that the only issues that can be resolved by the judiciary are those that can be done on the basis of reasoned argument. When courts go beyond this role, they endanger their legitimacy as legal institutions because they act beyond their area of competence. The Philippine case shows that a constitutional directive that empowers the judiciary did not override deference to the executive branch in times of political trauma. As a result of this deference the Supreme Court has dismantled the safeguards in the post-Marcos constitution.

1 Introduction Judicial review “under extreme conditions” has an inglorious history in the Philippines. The Supreme Court, by deferring to the Executive Branch, held that the factual bases for declaring an emergency are beyond the pale of judicial review. The Court’s deference aided the regime of Ferdinand Marcos by laying the legal scaffolding that gave him free reign in administering his martial law regime. When Marcos was ousted by protests in 1986, the new government drafted a constitution that strengthened the role of the Judiciary in extreme conditions by giving it, among others, the power to review the factual bases of emergency situations. The Supreme Court, however, has been reluctant in applying these new powers, and has crafted a mechanism that makes judicial review the final, and not a primary remedy for the abuse of power. D. B. Gatmaytan (B) College of Law, University of the Philippines, Quezon City, Philippines e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_4

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The Court’s reluctance in assuming a more powerful role stems from institutional competence constraints. The Supreme Court is unable to do more than to defer to the Executive branch in a field where it admittedly lacks technical knowledge; it slips into its traditional role of bystander instead of an active player. Institutional competence “goes to the respective abilities of courts versus legislatures or Executive officers to decide a particular question.”1 Proponents of this view say that only issues that can be resolved by reasoned argument are appropriate for judicial resolution. When courts go beyond this role, they endanger their legitimacy as legal institutions because they assert an unjustifiable claim to political superiority, and because they act beyond their area of competence.2 Post-Marcos Philippines demonstrates that a constitutional directive altering the balance of power among the three branches of government did not override the rationale for deference to the Executive branch in times of political trauma.

2 Marcos and Martial Law Marcos justified martial law based on government inefficiency and “an overblown allegation of communist threat.”3 In truth, the trigger for the declaration of martial law did not involve a communist menace but constitutional limits on Marcos’ presidency. With his opponents poised to take over the Presidency, Marcos set out to circumvent constitutional term limits.4 He cultivated an atmosphere of fear—faking attacks on his officials and setting off explosions—to gain international support for authoritarian rule.5 Marcos marketed martial law to the world by proclaiming his New Society, a set of ambitious promises of social and economic reform, coupled with some practical steps to curb general anarchy and violence.6 Marcos declared martial law in September 1972 and replaced the Americaninspired and -approved (1935) Constitution with a parliamentary system. Marcos shut down Congress and restricted speech and other civil liberties. He did not touch the Supreme Court, to show critics that his actions would be subject to judicial review. Critics brought suits to challenge the constitutionality of the declaration of martial law and the ratification of a new Constitution. The Supreme Court’s ruling 1 Roosevelt

K, Garnett RW (2007) Judicial activism and its critics. u pa l rev 155:112, 114. EL (1996) The new legal process, the synthesis of discourse, and the microanalysis of institutions. harv l rev 109:1393, 1396. The term ‘institutional competence’ can be traced directly to the legal process school of jurisprudence, a school of thought based at Harvard Law School. King JA (2008) Institutional approaches to judicial restraint. Oxford Journal of Legal Studies 28 (3):409, 421. 3 Boudreau V (2004) Resisting dictatorship: repression and protest in Southeast Asia. Cambridge University Press, p 71. 4 Ibid., 73–4. 5 Ibid., 74. 6 Khan PR (1973–1974) The Philippines without democracy. foreign aff 52:612, 619. 2 Rubin

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in Javellana v. Executive Secretary7 held that the 1973 Constitution was already in effect.8 The Supreme Court called the adoption of the Constitution a “political question” and it helped cement Marcos’ strongman rule. Since then, the Supreme Court, throughout the martial law regime (1972–1981), hardly voted against the Administration. Judicial review, if exercised at all, almost invariably upheld the acts of the President. The Supreme Court’s docility, some suggest, was adopted as a way to survive.9 Marcos was ousted by massive protests in 1986 after a tainted election that was intended to reboot his mandate.10

3 The Laws of Emergency The laws of emergency refer to measures triggered by urgent and unpredictable circumstances as well as to exceptional crises. In most legal systems, it is recognized as an institution of last resort in extreme, extraordinary cases, where a national, social, economic or political crisis fails to effectively address it.11 Pottakis explains: …resorting to the law of emergency highlights the limits of democratic constitutional arrangements. Even if the appeal to the law of emergency does not automatically call for the suspension of basic constitutional provisions, notable rights protection, as is usually the case, it signifies a departure from normal, constitutionally prescribed democratic decision-making arrangements. Thus the law of emergency fits quite uneasily in modern regimes.12

Emergency regimes are deemed necessary because when public safety is seriously threatened, there may be a need for quick and decisive action that cannot wait for the ordinary pace of constitutional rule.13 This presents a dilemma of a liberal constitutional government: the rights and protections it provides and preserves can

7 [1973] 50 SCRA 1. I discuss this case elsewhere. See Gatmaytan-Magno D (2007) Changing consti-

tutions: judicial review and redemption in the Philippines. ucla pacific basin law journal 25:1–24. 8 Tate CN (1995) The Philippines and Southeast Asia. In: Tate CN, Vallinder T (ed) The global expansion of judicial power. New York University Press, p 465. 9 The Court, said one observer, chose to “bend with the wind” and that as long as the Court stayed tractable, the President found reason to keep it open and operational. See Del Carmen RV (1979) Constitutionality and judicial politics. In: Rosenberg DA (ed) Marcos and martial law in the Philippines. Cornell University Press, p 112. 10 Gatmaytan DB (2006) It’s all the rage: popular uprisings and Philippine democracy. pac rim l & pol’y j 15:1. 11 Pottakis A (2014) Departing from the ordinary: the executive prerogative in a state of emergency. european public law 20:191. 12 Ibid., 191–2. 13 Ferejohn J, Pasquino P (2004) The law of the exception: a typology of emergency powers. int’l j const l 2:210.

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prevent the government from responding to enemies that would destroy those rights and, perhaps, even the constitutional order itself.14 Governments have declared states of emergency to respond to a variety of real and perceived crises, including threats of foreign military intervention and insurrection, political unrest, general civil unrest, criminal or terrorist violence, labor strikes, economic emergencies, the collapse of public institutions, the spread of infectious diseases, and natural disasters.15 “Public emergencies” apply to exceptional situations of public danger permitting the exercise of crisis powers in a particular state.16 Emergencies may arise from: 1. a serious political crisis (armed conflict and internal disorder); 2. force majeure (disasters of various kinds); or 3. particular economic circumstances, notably those relating to underdevelopment.17 States of emergency are important from a human rights perspective because the suspension of legal order often paves the way for systematic human rights violations.18 During an emergency, Executive power expands while the rights and freedoms of individuals contract. The rule of law is necessary in an emergency regime to ensure reasonable protection to the individuals on the one hand and to prevent abusive exercises of Executive powers on the other. In many jurisdictions, the task of protecting human rights and the rule of law during an emergency falls on an independent judiciary.19 The question of judicial review arises in two types of cases: 1. whether there exists a public emergency threatening the life of the nation; 2. whether the measures taken are permissible in law to restore normalcy.20 Courts are said to be well-suited for this function for three reasons: 1. They have the advantage of hindsight; 2. They take up issues relating to emergency powers “not in the abstract … but in the context of specific cases”; and 3. They are required to give reasons for their decisions, thereby restricting what can be done in the next emergency.21 14 Ibid. 15 Criddle EJ, Fox-Decent E (2012) Human rights, emergencies, and the rule of law. hum rts q 34:39, 45. 16 Chowdhury SR (1989) Rule of law in a state of emergency. Pinter Publishers, p 14. 17 Ibid., 15. 18 Criddle EJ, Fox-Decent E (n 15). See also Iyer V (1999) States of emergency: moderating the effects on human rights. dalhousie l. j. 22:125, 128–132. 19 Ibid., 131. 20 Ibid., 57–8. There is a view that veers away from the view that courts should exercise checks on the exercise of emergency powers. See Weinstock L (2009) Towards a structural theory of emergency powers. nyu ann sur am l 65:381–433. 21 Ramraj VV (2011) Emergency powers and constitutional theory. hong kong l j 41:165, 169.

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The constitutions of France,22 Hungary,23 Jamaica,24 and Tunisia25 empower their courts to review the factual circumstances surrounding a declaration of a state of emergency which triggers restrictions on certain rights. Others, without specifying “factual bases,” do allow courts to review declarations of emergencies. This is the case with Ecuador,26 Italy,27 Kenya,28 Kosovo,29 Malawi,30 Slovakia,31 South Africa,32 Venezuela,33 and Zimbabwe.34 In Burundi,35 Chad,36 Comoros,37 Congo,38 Cote d’Ivoire,39 Gabon,40 Guinea,41 Madagascar,42 Mali,43 Mauritania,44 Morocco,45 and Niger,46 the constitutions require the involvement of courts in the declaration by means of mandatory consultations before such are decreed. On the opposite end of the spectrum, the constitutions of Chile,47 Sierra Leone,48 and Sri Lanka49 expressly prohibit the courts from inquiring into the factual circumstances invoked by the authority to declare states of emergency. Courts often say, however, that national security matters fall outside their institutional expertise because the national security cases typically involve sensitive security intelligence information that governments are unwilling to furnish in open court.50 22 Constitution

of France 1958, s 16. of Hungary 2011, s 48 (3). 24 Constitution of Jamaica 1962, s 20 (5). 25 Constitution of Tunisia 2014, s 80. 26 Constitution of Ecuador 2015, s 166. 27 Constitution of Italy 1947, s 13. 28 Constitution of Kenya 2010, s 58 (5). 29 Constitution of Kosovo, s 113 (3). 30 Constitution of Malawi 1994, s 45 (5). 31 Constitution of Slovakia 1992, s 129 (6). 32 Constitution of South Africa 1996, s 37 (3)(a). 33 Constitution of Venezuela 1999, s 339. 34 Constitution of Zimbabwe 2013, s 113 (7)(a). 35 Constitution of Burundi 2005, s 115. 36 Constitution of Chad 2005, s 87. 37 Constitution of Comoros 2009, s 12.3. 38 Constitution of Congo 2001, s 84. 39 Constitution of Cote d’Ivoire 2000, s 48. 40 Constitution of Gabon 1997, s 26. 41 Constitution of Guinea 2010, s 90. 42 Constitution of Madagascar 2010, s 61. 43 Constitution of Mali 1992, s 50. 44 Constitution of Mauritania 2012, s 39. 45 Constitution of Morocco 2011, s 59. 46 Constitution of Niger 2010, s 67. 47 Constitution of Chile 2015, s 45. 48 Constitution of Sierra Leone 2008, s 29 (4). 49 Constitution of Sri Lanka 2015, s 154J (2). 50 Ramraj VV (2011) Emergency powers and constitutional theory. hong kong l j 41:165, 169. 23 Constitution

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This is what happened in the Philippines. The Philippines suffered heavily under Marcos’ martial law regime.51 The police engaged in systematic human rights abuses and syndicated gambling, drugs, or smuggling.52 The regime is said to be responsible for 3,257 deaths, while an estimated 35,000 were tortured and 70,000 were arrested. 77 percent of those who died were tortured and killed with the remains dumped for display.53 The Marcos estate was found liable to a class of 10,000 Filipinos and 23 plaintiffs for torture, summary execution, disappearance, and prolonged arbitrary detention. In 1994, the jury awarded $1.2 billion in exemplary damages.54 The case involved five consolidated cases and was tried in a two-week period. Victims of torture and arbitrary detention testified about their individual trauma, and in some cases, to relate Marcos’s personal involvement in their sufferings.55 The Constitutional Commission of 1986 placed safeguards in the fundamental law to prevent similar abuses in the future. The Philippine Constitution has three separate provisions on emergencies.56 The first of these is a delegation of legislative powers under Article VI, Section 23 of the Constitution. This provision delegates legislative powers to the President under certain circumstances. On its face, the President’s exercise of emergency powers may seem like an improper exercise of legislative powers. Under the separation of powers doctrine, each department of the government has exclusive cognizance of matters placed within its jurisdiction, and is supreme within its own sphere. Thus, there is a corollary principle that the powers of these branches cannot be delegated to others: what has been delegated cannot be delegated. So while the President cannot legislate as a rule, she may do so under certain situations sanctioned by law. The nature of the delegation under the present Constitution is not as restricted as it was under the 1935 Constitution. The older Constitution merely delegated the power “to promulgate rules and regulations to carry out a declared national policy.”57 The language of the 1987 Constitutions supports the argument that the Congress may delegate legislative power, and not merely rule-making powers.58 Still, the Constitution provides two restrictions on the delegated power. The first is that the power is temporary—the delegation automatically ends when Congress adjourns or when it is sooner withdrawn by Congress. The withdrawal is done by resolution, 51 See Frankel ME et al (1983) The Philippines: a country in crisis—a report by the lawyers committee for international human rights. columbia human rights law review 15:69–129. 52 McCoy AW (2011) Policing America’s empire: the United States, the Philippines, and the rise of the surveillance state. University of Wisconsin Press, p 403. 53 Ibid. 54 Steinhardt RG (1995) Fulfilling the promise of filartiga: litigating human rights claims against the estate of Ferdinand Marcos. yale j int’l l 20:65. 55 Fitzpatrick J (1993) The future of the alien tort claims act of 1789: lessons from in re Marcos human rights litigation. st john’s l rev 67:491, 498–9. 56 This section draws heavily from Gatmaytan DB (2015) Constitutional law in the Philippines: government structure. Lexis Nexis, p 93–95. 57 Bernas JG (2009) The 1987 constitution of the Philippines: a commentary. Rex Publishing, p 773. 58 Ibid.

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not by law. A Resolution of Congress does not require the President’s approval. This would avoid a situation where the President might resist the withdrawal of his powers. Congress may also add restrictions on the powers although the Constitution has apparently left Congress with broad discretion on the nature or extent of these restrictions. The second emergency power falls under Article VII on the Executive Department, which lists the President’s powers as Commander-in Chief: SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released.

The third emergency power can be found under Article XII on the National Patrimony. Section 17 of the Article provides that: SECTION 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.

For our purposes, we focus on the commander-in-chief powers of the President and the Supreme Court’s powers under Section 18 of Article VII. The length of the provision shows the painstaking efforts that were taken to plug the loopholes created by the Marcos Regime. The framers of the 1987 Constitution had a heated debate about congressional concurrence in the President’s exercise of

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extraordinary emergency power. This was opposed largely on the argument that such limitation would hamper the President’s ability to respond quickly to emergencies. The concurrence of Congress was dispensed with, but the President must, within 48 hours from taking emergency action, submit a report to Congress either in person or in writing. Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension.” The revocation will not be set aside by the President.59 The Constitution now grants the President, as Commander-in-Chief, a “sequence” of graduated powers, which are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of an actual invasion or rebellion, and that public safety requires the exercise of such power. However, the “calling out power” can be exercised “whenever it becomes necessary.”60 Pangalangan summarizes the Commander-in-Chief’s emergency powers under the 1987 Constitution: Due to the nightmare of one-man rule, the post-Marcos constitution confined the extraordinary powers of the chief executive through institutional checks. It recognized three situations of “national security” emergencies and a fourth situation of economic emergency, all of them subject to Congressional or judicial oversight. The three “commander-in-chief” powers are listed in succeeding gradations of severity: the power to “call out the armed forces,” suspend the writ of habeas corpus and thus authorize warrantless arrests, or proclaim martial law. Significantly, the habeas corpus and martial-law powers are subject to automatic constraints. Congress may automatically review these declarations within fixed time periods “without need of a call.” The Supreme Court may be called on by any citizen to exercise its power of judicial review, thus dispensing with the actual injury requirement for judicial standing. Finally, for emergencies of an economic nature, the state may “temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.”61

Joaquin Bernas, a member of the commission that drafted the Constitution, explains that any citizen is given standing to bring appropriate action to challenge the action taken by the President. “This can be done even before Congress acts, and the decision of the Supreme Court would also bind Congress. But since the object of the Supreme Court’s action would be the verification of ‘the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege,’ necessarily the Supreme Court’s evaluation would be transitory if proven wrong by subsequent changes in the factual situation.”62 There is a long line of cases that demonstrated how the Supreme Court checked the President’s power during emergencies. 59 Ibid.,

917–8. v. Reyes [2004] 466 PHIL 482. 61 Pangalangan RC (2016) Philippine constitutional law: majoritarian courts and elite politics. In: Chen AHY (ed) Constitutionalism in Asia in the early twenty-first century. Cambridge University Press, p 299. 62 Bernas (n 57) p 919. 60 Sanlakas

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The Court’s decisions were inconsistent and the indecisiveness of the Court revolved around the definition of “political questions.” Initially deferring to the President, the Court held that “the President and his decision is final and conclusive on the courts.” In Lansang v. Garcia and subsequent cases, the Court took the opposite view and held that the Supreme Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. The Court shifted the focus to the system of checks and balances, “under which the President is supreme, . . . only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department…” The Court would later give the President the sole power to declare the existence of emergencies: In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile. There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable question. Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that “in times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God.”63

Marcos was given all the power to define and deal with emergencies and for many years, he governed with an iron hand unchecked.64

4 Cases Under the 1987 Constitution The 1987 Constitution’s provisions on emergencies have been frequently tested. Emergencies of every kind have visited the Philippines from a spike in crimes to politically motivated mass murders. The Supreme Court, as I will presently show, has not been quick to assume its new role but has elected to perform a secondary role.

4.1 Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15, 2000 President Joseph Estrada, invoking his powers as Commander-in-Chief, addressed a memorandum to the Chief of Staff of the Armed Forces of the Philippines (AFP) and the Chief of the Philippine National Police (PNP) directing them to deploy and Marines to assist the Philippine National Police in preventing criminal or lawless 63 David

v. Macapagal-Arroyo [2006] 522 PHIL 705.

64 For a discussion on the impact of these cases, see Lopez CA (1983) Freedom from arbitrary arrest

and detention in the Philippines: a problem of enforcement. b c third world l j 4:72.

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violence through visibility patrols in the metropolis. The Integrated Bar of the Philippines filed a petition to annul Letter of Instruction 02/2000 and to declare such deployment of the Marines null and void and unconstitutional. The Supreme Court determined whether the President’s factual determination of the necessity of calling the armed forces is subject to judicial review. According to the Court, when the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. Saying it was clear from the intent of the framers and from the text of the Constitution itself, it added that the Court cannot be called upon to overrule the President’s wisdom. The Court added, however, that this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis.65

4.2 Lacson v. Perez, G.R. No. 147780, May 10, 2001 The next four cases involved President Gloria Macapagal-Arroyo’s propensity to declare a states of emergencies. In every case, her proclamation was challenged as an attempt to exercise emergency powers without triggering the constitutional safeguards available when the President declares martial law. In every case, however, the Supreme Court simply classified her acts under the “calling out power,” the most benign of her powers as Commander-in Chief, despite the fact warrantless arrests were being carried out. The first case involved an uprising that followed the arrest of former President Joseph Estrada so he could be tried for the crime of plunder. Estrada’s followers erupted in protest. On May 1, 2001, President Macapagal-Arroyo, faced by an “angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons” assaulting and attempting to break into Malacañang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1, directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the “rebellion” were thereafter effected.66 All the petitions in this case assailed the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests that were allegedly being carried out. However, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a “state of rebellion” in Metro Manila. Accordingly, 65 Integrated 66 Lacson

Bar of the Phil. v. Zamora [2000] 392 PHIL 618. v. Perez [2001] 410 PHIL 78.

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the petitions were rendered moot and academic. The Court then addressed the claim that the proclamation of a “state of rebellion” was used by the authorities to justify warrantless arrests. The Court said, however, that the Secretary of Justice denied that it had issued a particular order to arrest specific persons in connection with the “rebellion.”67 The Court did say that in suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a “state of rebellion.”

4.3 Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004 In 2003, what is known as the Oakwood mutiny68 prompted the President to issue Proclamation No. 427 and General Order No. 4. Around 300 armed members of the Armed Forces of the Philippines stormed into Oakwood Premiere apartments in Makati City in protest of the corruption in the AFP, demanding the resignation of President, the Secretary of Defense, and the Chief of the Philippine National Police. The issuances declared a “state of rebellion” and called out the AFP and PNP to suppress and quell the rebellion. Before the President lifted the declaration of a “state of rebellion” through Proclamation No. 435, several petitions were filed before the Supreme Court challenging the validity of Proclamation No. 427 and General Order No. 4. The Supreme Court sided with the President. It held that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here had, by way of proof, supported their assertion that the President acted without factual basis. The Court simply said that in calling out the armed forces, a declaration of a state of rebellion is “an utter superfluity” and At most, it only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it. Perhaps the declaration may wreak emotional effects upon the perceived enemies of the State, even on the entire nation. But this Court’s mandate is to probe only into the legal consequences of the declaration. This Court finds that such a 67 Ibid. 68 More than 300 junior officers and enlisted men took over the Oakwood Premier in the Ayala Center, Makati City on July 27, 2003. They were led by Navy Ltsg. Antonio Trillanes IV, Army Capt. Gerardo Gambala, Army Capt. Milo Maestrecampo, Navy Ltsg. James Layug and Marine Capt. Gary Alejano. The soldiers claimed that they simply intended to air their grievances against the government, including graft and corruption in the military. See (2008) Oakwood mutiny backgrounder. GMA News Online. http://www.gmanetwork.com/news/story/33181/news/oakwood-mut iny-backgrounder/story. Accessed 18 June 2006.

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The petitioners argued that the President’s declaration of a “state of rebellion” was a means of imposing martial law without triggering the constitutional safeguards for the exercise of those powers. The Court disagreed and said that the argument “is a leap of logic.” Said the Court: There is no indication that military tribunals have replaced civil courts in the “theater of war” or that military authorities have taken over the functions of civil government. According to the Court, “There is no allegation of curtailment of civil or political rights. There is no indication that the President has exercised judicial and legislative powers. In short, there is no illustration that the President has attempted to exercise or has exercised martial law powers.”70 One dissent saw beyond the President’s ruse: I see no reason for the President to deviate from the concise and plain provisions of the Constitution. In a society which adheres to the rule of law, resort to extra-constitutional measures is unnecessary where the law has provided everything for any emergency or contingency. For even if it may be proven beneficial for a time, the precedent it sets is pernicious as the law may, in a little while, be disregarded again on the same pretext but for questionable purposes. Even in time of emergency, government action may vary in breath and intensity from more normal times, yet it need not be less constitutional. Extraordinary conditions may call for extraordinary remedies. But it cannot justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.71

4.4 David v. Arroyo, G.R. No. 171396, May 3, 2006 Seven petitions alleged that President Arroyo committed grave abuse of discretion in issuing Presidential Proclamation No. 1017 and General Order No. 5. The President declared a state of national emergency in Proclamation No. 1017 citing a conspiracy among members of the military, of the New Peoples Army, and of the political opposition to unseat or assassinate her. Telecommunication towers and cell sites were bombed, an army outpost was raided, the New Peoples’ Army and the National Democratic Front publicly warned of the President’s ouster, and information regarding plots within the military were exposed. She issued General Order No. 5 and called upon the Armed Forces of the Philippines and the Philippine National Police to carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. Proclamation No. 1017 was lifted exactly a week after it was issued, but before all the petitions had been filed. One of the issues raised in the case was whether the Supreme Court can review the factual bases of Proclamation No. 1017. Petitioners argued that Proclamation No. 69 Sanlakas 70 Ibid. 71 Ibid.

v. Reyes [2004] 466 PHIL 482.

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1017 had no factual basis. Hence, it was not necessary for President Arroyo to issue such Proclamation. The Supreme Court explained the history of the Court’s power to review the factual bases of the President’s exercise of his Commander-in-Chief powers. The Court pointed out that early decisions declared that the authority to decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the courts. In Lansang v. Garcia,72 the Court unanimously held that it has the authority to inquire into the existence of factual bases in order to determine the constitutionality of a declaration of an emergency.73 Lansang was eventually reversed with the Court ruling that “in times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it said, is answerable only to his conscience, the People, and God.” Some of the petitioners maintained that Proclamation No. 1017 is actually a declaration of martial law. The Court disagreed. It explained that what the President invoked was her calling-out power. It held that the petitioners failed to show that President Arroyo’s exercise of the calling-out power was totally bereft of factual basis. In the end, the Court held that the proclamation was a valid act under Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, the Proclamation’s provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also ruled that under Section 17,

72 In

re Lansang v. Garcia [1971] 149 PHIL 547. the Court held: Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that “(t)he privilege of the writ of habeas corpus shall not be suspended . . . .” It is only by way of exception that it permits the suspension of the privilege “in cases of invasion, insurrection, or rebellion”—or, under Article VII of the Constitution, “imminent danger thereof”—“when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist.” For from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted, not only by the prescribed setting or the conditions essential to its existence, but, also, as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility. 73 There

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Article XII of the Constitution, the President, in the absence of a law, cannot take over privately-owned public utility and private business affected with public interest.74

4.5 Ampatuan v. Puno, G.R. No. 190259, June 7, 2011 In response to the Maguindanao massacre,75 President Arroyo issued Proclamation No. 1946, placing Maguindanao, Sultan Kudarat, and Cotabato under a state of emergency. She directed the Armed Forces of the Philippines and the Philippine National Police to undertake such measures as may be allowed by the Constitution and by law to prevent and suppress all incidents of lawless violence. She also issued Administrative Order 273-A, delegating supervision of the Autonomous Region of Muslim Mindanao to the Department of Interior and Local Government. The petitioners filed a case questioning the existence of a factual basis for such declaration and assailing the delegation for violating the principle of local autonomy and constituting an invalid exercise of the President’s emergency powers. Petitioners argued that the President unlawfully exercised emergency powers when she ordered the deployment of AFP and PNP personnel in the places mentioned in the proclamation. Again the Court sided with the President and held that she did not proclaim a national emergency, only a state of emergency in the three places mentioned. The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the Constitution directly vests in the President. She did not need a congressional authority to exercise the same. Again the Supreme Court held that the President’s call for the armed forces to prevent or suppress lawless violence springs from her “calling out power.” The Court emphasized its limited powers when asked to inquire into the factual bases for the President’s exercise of the “calling out power”; the Court would generally defer to the President’s judgment on the matter. Citing Integrated Bar of the Philippines v. Zamora, the Court held that unless it is shown that such determination was attended by grave abuse of discretion, the Court will accord respect to the President’s judgment.76

74 David

v. Macapagal-Arroyo [2006] 522 PHIL 705. November 2009, a convoy of politicians and their supporters, journalists and lawyers were shot and hacked to death by armed men believed to be working for the Ampatuans, a political dynasty that controls the province. The victims were on their way to file certificates of candidacy to challenge the Ampatuans’ governorship which had always been unchallenged. See Conde C (2009) The making of a massacre in the Philippines. New York Times. http://www.nytimes.com/2009/12/ 11/world/asia/11iht-massacre.html. Accessed 18 June 2016. 76 Ampatuan v. Puno [2011] 666 PHIL 225. 75 In

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4.6 Fortun v. Macapagal-Arroyo, G.R. No. 190293, March 20, 2012 Still in response to the Maguindanao massacre, President Arroyo issued Presidential Proclamation No. 1959 declaring martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao except for identified areas of the Moro Islamic Liberation Front. Two days later, she submitted a report to Congress as required by Section 18, Article VII of the 1987 Constitution. Before Congress could act, the President already lifted martial law and restored the privilege of the writ of habeas corpus in Maguindanao. The petitions were filed to challenge the constitutionality of Proclamation No. 1959. The Court explained that the President and Congress share the power to proclaim martial law or suspend the privilege of the writ of habeas corpus: 1. The President’s proclamation or suspension is temporary, good for only 60 days; 2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to Congress; 3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or suspension for the purpose of reviewing its validity; and 4. The Congress, voting jointly, may revoke or affirm the President’s proclamation or suspension, allow their limited effectivity to lapse, or extend the same if Congress deems warranted. Under the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power jointly, because after the President initiates the proclamation or the suspension, only Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have. The Court, however, made a stunning interpretation of its powers under the Constitution: Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court… If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President’s action, and ascertain if it has a factual basis. If the Court finds none, then it can annul the proclamation or the suspension.77

There is nothing in the text of the Constitution that justifies this interpretation. The purpose of the provision being to check Executive abuse, the Court should have 77 Fortun

v. Macapagal-Arroyo [2012] 684 PHIL 526.

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interpreted the Constitution as a way of providing multiple and simultaneous avenues for redress. Under this interpretation, when one branch of government (Congress or the Supreme Court) makes a determination as to the factual basis of the emergency, then that decision should bind the other. As explained earlier, the framers of the Constitution supports the view that the judicial remedy “can be done even before Congress acts, and the decision of the Supreme Court would also bind Congress.”78 It is also difficult to determine when Congress “procrastinates” or “fails to fulfill its duty.” If discussions drag on, would it be time for the Court to step in? The Constitution merely directs Congress to convene within twenty-four hours but it does not provide a period of time within which to make its decision.

5 Analysis The Philippine experience reflects the two schools of thought that dominates the discourse on the extent of judicial review of actions arising from political trauma. There are two main views about the proper role of the Constitution during national emergencies: the “accommodation” view and the “strict enforcement” view. Under the accommodation view, the Constitution should be relaxed or suspended during an emergency. An emergency requires the concentration of power and that constitutional rights be relaxed, so that the Executive can move forcefully against the threat. Constitutional norms can be relaxed during emergencies so that the risks to civil liberties inherent in expansive Executive power—the misuse of the power for political gain—are justified by the national security benefits.79 Under the strict enforcement view, constitutional rules are not, and should not be relaxed during an emergency. This view observes that the Constitution already provides that the level of protection for civil liberties depends on the interest of the government. Consider, for example, “compelling interest” standards used to evaluate laws that discriminate against protected classes. When an emergency exists, the government has a “compelling interest” in responding to it in a vigorous and effective way. Thus, laws that would not be tolerated during normal times are constitutionally permissible during emergencies. The Constitution should be enforced “strictly”— that is, the rules should be the same during emergencies as during normal times, even if outcomes differ, so that both civil liberties and government interests such as national security can be appropriately balanced, as they always need to be.80 As the Philippine Supreme Court demonstrated during the Marcos regime, courts often defer to the exercise of enumerated, implied, and inherent powers by the other branches. The Court legitimated many extra-constitutional political constructions 78 Bernas JG (2009) The 1987 Constitution of the Republic of the Philippines: a commentary. Rex Publishing, p 919. 79 Posner EA, Vermeule A (2008) Accommodating emergencies. stan l rev 56:605, 606–7. 80 Ibid.

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that reshaped the administration of public power by the other branches.81 The judiciary, in times of emergency and alleged emergency, usually defer to Executive claims. Infamous wartime cases such as Korematsu82 “were regarded as badges of shame.” But it also seemed that judges reverted to deference when national security concerns were alleged by the Executive, even outside of the context of wartime emergency.83 Those who support judicial deference claim that courts are ill-equipped to assess the Executive’s intelligence and security calculations, which often must be made rapidly and which carry important foreign policy implications. Under this view, the Executive is more accountable to the public than courts, such that its decisions will be guided and tempered by the public will. Those who seek judicial intervention say the Executive has undue incentives to emphasize security values over liberty values, and only a vigorous judicial role can counter that. They view robust judicial deference to the Executive as weakening a critical tool by which to inhibit a single branch of government from accruing undue power.84 In most cases, courts use abstention doctrines and other tools to decline such cases on the merits. When courts do hear these cases, they often issue decisions that are highly deferential to Executive choices.85 Despite the breadth of judicial power in the Philippines, the courts do not wield it freely. Judicial review involves “the delicate exercise of examining the validity or constitutionality of an act of a coequal branch of government” 86 and the Supreme Court “must continually exercise restraint to avoid the risk of supplanting the wisdom of the constitutionally appointed actor with that of its own.”87 In another case, the Supreme Court explained that the doctrine of separation of powers which imposes upon the courts proper restraint in striking down the acts of the Executive or the Legislature as unconstitutional.88 The Court’s function of review is limited: the Court may pass upon the constitutionality of acts of the Legislative and the Executive branches, since its duty is not to review their collective wisdom but, rather, to make sure that they have acted in consonance with their respective authorities and rights as mandated of them by the Constitution. If the Court finds no constitutional violations of any sort, then it has no more authority to proscribe the actions under review.89

81 Brisbin RA Jr (2005) The judiciary and the separation of powers. In: Hill KL, McGuire KT (eds) The judicial branch. Oxford University Press 2005, p 112. 82 Korematsu v. United States [1941] 323 U.S. 214. 83 Dyzenhaus D (2008) Introduction: legality in a time of emergency. windsor rev legal & soc issues 24:1. 84 Deeks AS (2013) The observer effect: national security legislation, executive policy changes, and judicial deference. fordham l rev 82:827. 85 Ibid., 830. 86 Saguisag v. Ochoa, Jr. [2016] 779 SCRA 241. 87 Ibid. 88 Spouses Imbong v. Ochoa, Jr. [2014] 721 SCRA 146. 89 Ibid.

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There is also pressure on courts to defer to Executive actors: judges deciding constitutional claims during times of emergency “should defer to government action so long as there is any rational basis for the government’s position, which in effect means that the judges should almost always defer, as in fact they have when emergencies are in full flower.”90 Courts suffer from institutional disadvantages in resolving certain types of disputes. Courts defer to the Executive branch, for example, when dealing with foreign affairs controversies, including controversies regarding the allocation of foreign affairs powers.91 The cases present a Court that is unwilling to assume its new role as a check on the exercise of emergency powers. Integrated Bar of the Philippines imposed a near-impossible standard to check the President’s power to call out the military: that the President’s decision is “totally bereft of factual basis.” President Arroyo dealt with many emergencies but succeeded in evading constitutional checks by using several techniques. Pangalangan explained: The first is by pre-emption, that is to say, by mooting the case and forestalling judicial review through the expedient of lifting the emergency before the case is decided….Arroyo ‘deviat[es] from the concise and plain’ text of the Constitution, avoids the Constitution’s ‘graduated’ levels of powers and checks, and simply calls her emergency powers by another name. The Constitution sets out the gradations: ‘calling out’, suspending the writ and proclaiming martial law. Arroyo instead used the terms ‘state of rebellion’ (in 2001 and 2003) and ‘state of national emergency’ (in 2006). And why persist in what the court validated at best as a suspect legal superfluity? Because to use the exact text of the Constitution would have triggered the institutional safeguards. Change the labels, escape the checks. The third is by what I call ‘doing without naming’. Arroyo sought to achieve her political aims without resorting to legal measures, or by simply applying the generic, non-emergency-related provisions of the criminal code.92

The Supreme Court, with few dissents, did not censure her. Since the President’s words did not trigger the Constitutional safeguards, there were no acts to strike down. By the time Fortun was decided, the Court had excused itself from its duties, assigning the primary task of checking abuse to Congress. There is an inconsistency between the traditional role of the Court in constitutional litigation and its new role as a super-constitutional check against Executive abuse. The Court’s textbook explanation of its role is clear: its duty is to steer clear of declaring unconstitutional the acts of the Executive or the Legislative department, given the assumption that it carefully studied those acts and found them consistent with the fundamental law before taking them.93 Recall that until the 1987 Constitution came along, the Supreme Court has pretty much deferred to the Executive on matters involving national security. The Constitution today, however, is directing the Court 90 Lawson

G (2007) Ordinary powers in extraordinary times: common sense in times of crisis. B U L Rev 87:289, 291. 91 Nzelibe J (2004) The uniqueness of foreign affairs. iowa l rev 89:941. 92 Pangalangan RC (2010) Political emergencies in the Philippines: changing labels and the unchanging need for legitimacy. In: Ramraj VV, Thiruvengadam AK (eds) Emergency powers in Asia: exploring the limits of legality. Cambridge University Press, p 431. 93 Fortun v. Macapagal-Arroyo [2012] 684 PHIL 526.

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to determine abuse of discretion on the part of the Executive, depriving the Court of the opportunity to rule on the extent of its powers. Courts, Ginsburg wrote, play games of power in legal arenas: Courts can challenge others or can seek powerful allies. They can cautiously accumulate policy gains in an incremental fashion or boldly battle for large pieces of territory. They can choose their battles carefully, limiting conflicts to those they can win and thus making future threats credible; or they can blunder badly and provoke crippling counterattacks.94

While courts are almost universally granted the power to exercise judicial review, they differ in the extent to which they are willing to exercise this power.95 The extent of judicialization is determined by “the configuration of political forces and the receptiveness of courts to accepting controversial disputes.”96 Ginsburg’s insights are helpful here: “Constitutional courts are institutionally cautious; yet through careful decision making they can entrench the constitutional system by inducing actors to remain in the constitutional order and comply with seemingly adverse decisions…. Where courts become bold, they may generate a backlash that actually reduces their freedom of action.97 In a field as volatile as public emergencies, the Philippine Supreme Court crafted a more conservative role for itself. Constitutionally empowered to check the Chief Executive, the Supreme Court may yet be wondering what it has to gain by defying Executive findings that the public is in danger.

6 Conclusion The 1987 Constitution of the Philippines was designed to prevent a repetition of the excesses of the Marcos dictatorship. The Constitution expressly empowered the Supreme Court with the power to review the exercise of emergency powers. The Court, however, seems disinterested in assuming its new role. It has imposed a nearimpossible standard for litigants in striking down Executive acts, or stepped aside instead of stepping up to exercise its new powers. The 1987 Constitution has removed the Philippine case from the debates around the extent of judicial review over Executive emergency actions. The Court has the power to determine whether there was in fact an abuse of this power. The Supreme Court has opted to act politically, by inoculating itself from the politics inherent in the nature of public emergencies and allowing other layers of political vetoes to come into play.

94 Ginsburg

T (2003) Judicial review in new democracies: constitutional courts in Asian cases. Cambridge University Press, p 247. 95 Ibid., 261. 96 Ibid., 261. 97 Ibid., 105.

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Acknowledgements The author wishes to thank Alyanna Perez and Marianne Vitug, and Smantha Mendiola, for their research assistance.

References (2008) Oakwood mutiny backgrounder. GMA News Online. http://www.gmanetwork.com/news/ story/33181/news/oakwood-mutiny-backgrounder/story. Accessed 18 June 2006 Ampatuan v. Puno (2011) 666 PHIL 225 Bernas JG (2009) The 1987 constitution of the Philippines: a commentary. Rex Publishing, pp 773, 919 Boudreau V (2004) Resisting dictatorship: repression and protest in Southeast Asia. Cambridge University Press, p 71 Brisbin RA Jr (2005) The judiciary and the separation of powers. In: Hill KL, McGuire KT (eds) The judicial branch. Oxford University Press 2005, p 112 Chowdhury SR (1989) Rule of law in a state of emergency. Pinter Publishers, p 14 Conde C (2009) The making of a massacre in the Philippines. New York Times. http://www.nyt imes.com/2009/12/11/world/asia/11iht-massacre.html. Accessed 18 June 2016 Constitution of Burundi 2005, s 115 Constitution of Chad 2005, s 87 Constitution of Chile 2015, s 45 Constitution of Comoros 2009, s 12.3 Constitution of Congo 2001, s 84 Constitution of Cote d’Ivoire 2000, s 48 Constitution of Ecuador 2015, s 166 Constitution of France 1958, s 16 Constitution of Gabon 1997, s 26 Constitution of Guinea 2010, s 90 Constitution of Hungary 2011, s 48 (3) Constitution of Italy 1947, s 13 Constitution of Jamaica 1962, s 20 (5) Constitution of Kenya 2010, s 58 (5) Constitution of Kosovo, s 113 (3) Constitution of Madagascar 2010, s 61 Constitution of Malawi 1994, s 45 (5) Constitution of Mali 1992, s 50 Constitution of Mauritania 2012, s 39 Constitution of Morocco 2011, s 59 Constitution of Niger 2010, s 67 Constitution of Sierra Leone 2008, s 29 (4) Constitution of Slovakia 1992, s 129 (6) Constitution of South Africa 1996, s 37 (3)(a) Constitution of Sri Lanka 2015, s 154J (2) Constitution of Tunisia 2014, s 80 Constitution of Venezuela 1999, s 339 Constitution of Zimbabwe 2013, s 113 (7)(a) Criddle EJ, Fox-Decent E (2012) Human rights, emergencies, and the rule of law. Hum Rts Q 34:39, 45 David v. Macapagal-Arroyo (2006) 522 PHIL 705 Deeks AS (2013) The observer effect: national security legislation, executive policy changes, and judicial deference. Fordham L Rev 82:827

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Del Carmen RV (1979) Constitutionality and judicial politics. In: Rosenberg DA (ed) Marcos and martial law in the Philippines. Cornell University Press, p 112 Dyzenhaus D (2008) Introduction: legality in a time of emergency. Windsor Rev Legal Soc Iss 24:1 Ferejohn J, Pasquino P (2004) The law of the exception: a typology of emergency powers. Int J Const L 2:210 Fitzpatrick J (1993) The future of the alien tort claims act of 1789: lessons from in re Marcos human rights litigation. St John’s L Rev 67:491, 498–499 Fortun v. Macapagal-Arroyo (2012) 684 PHIL 526 Frankel ME et al (1983) The Philippines: a country in crisis—a report by the lawyers committee for international human rights. Columbia Human Rights Law Rev 15:69–129 Gatmaytan DB (2006) It’s all the rage: popular uprisings and Philippine democracy. Pac Rim L Pol’y J 15:1 Gatmaytan DB (2015) Constitutional law in the Philippines: government structure. Lexis Nexis, pp 93–95 Gatmaytan-Magno D (2007) Changing constitutions: judicial review and redemption in the Philippines. UCLA Pacific Basin Law J 25:1–24 Ginsburg T (2003) Judicial review in new democracies: constitutional courts in Asian cases. Cambridge University Press, p 247 In re Lansang v. Garcia (1971) 149 PHIL 547 Integrated Bar of the Phil. v. Zamora (2000) 392 PHIL 618 Iyer V (1999) States of emergency: moderating the effects on human rights. Dalhousie L J 22:125, 128–132 Khan PR (1973–1974) The Philippines without democracy. Foreign Aff 52:612, 619 King JA (2008) Institutional approaches to judicial restraint. Oxford J Legal Stud 28(3):409, 421 Korematsu v. United States (1941) 323 U.S. 214 Lacson v. Perez (2001) 410 PHIL 78 Lawson G (2007) Ordinary powers in extraordinary times: common sense in times of crisis. B U L Rev 87:289, 291 Lopez CA (1983) Freedom from arbitrary arrest and detention in the Philippines: a problem of enforcement. B C Third World L J 4:72 McCoy AW (2011) Policing America’s empire: the United States, the Philippines, and the rise of the surveillance state. University of Wisconsin Press, p 403 Nzelibe J (2004) The uniqueness of foreign affairs. Iowa L Rev 89:941 Pangalangan RC (2010) Political emergencies in the Philippines: changing labels and the unchanging need for legitimacy. In: Ramraj VV, Thiruvengadam AK (eds) Emergency powers in Asia: exploring the limits of legality. Cambridge University Press, p 431 Pangalangan RC (2016) Philippine constitutional law: majoritarian courts and elite politics. In: Chen AHY (ed) Constitutionalism in Asia in the early twenty-first century. Cambridge University Press, p 299 Posner EA, Vermeule A (2008) Accommodating emergencies. Stan L Rev 56:605, 606–607 Pottakis A (2014) Departing from the ordinary: the executive prerogative in a state of emergency. Eur Public Law 20:191 Ramraj VV (2011) Emergency powers and constitutional theory. Hong Kong L J 41:165, 169 Roosevelt K, Garnett RW (2007) Judicial activism and its critics. U Pa L Rev 155:112, 114 Rubin EL (1996) The new legal process, the synthesis of discourse, and the microanalysis of institutions. Harv L Rev 109:1393, 1396 Saguisag v. Ochoa, Jr. (2016) 779 SCRA 241 Sanlakas v. Reyes (2004) 466 PHIL 482 Spouses Imbong v. Ochoa, Jr. (2014) 721 SCRA 146 Steinhardt RG (1995) Fulfilling the promise of filartiga: litigating human rights claims against the estate of Ferdinand Marcos. Yale J Int L 20:65

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Tate CN (1995) The Philippines and Southeast Asia. In: Tate CN, Vallinder T (ed) The global expansion of judicial power. New York University Press, p 465 Weinstock L (2009) Towards a structural theory of emergency powers. NYU Ann Sur Am L 65:381– 433

Constitution and Law as Instruments for Normalising Abnormalcy: States of Exception in the Plurinational Context Kumaravadivel Guruparan

Abstract This paper argues that in plurinational contexts that are embroiled in armed conflict, the state of exception has been used to invoke national security Laws and related to manage the conflict itself and to use the force of the state to settle the friendenemy distinction that Schmitt identified as the purpose of the state of exception. It also argues that though centralisation of power has been justified by political elites as an exception to the liberal constitutional paradigm and not as an abandoning of the same, that centralisation has become a normal and essential feature of constitutional praxis in plurinational states aimed at protecting the dominant community’s status in the state. This is in its totality shows a process whereby the constitution and laws beholden to the dominant community are instumentalised in the normalisation of what would be otherwise considered to be abnormal.

1 Introduction One of the biggest worries plaguing liberal constitutionalists of contemporary times is the best means of striking a balance between the question of liberty and security. The question has become particularly animated in the post 9/11 context with constitutionalists dealing with how a prolonged war against ‘terrorism’ can fit within the normal order of liberal constitutionalism. This paper however focuses on a different kind of setting in which there have been temporally long states of exception—plurinational states in conflict. By plurinational states in conflict I mean those states wherein politics is deeply divided on the basis of identity and where conflicts as to the means of conceiving and sharing state power has led to armed conflicts. The first section of this paper lays down the theoretical framework of the chapter. I draw from both Carl Schmitt and Giorgio Agamben in this chapter and with modifications to both suggest a normative means of interpreting states of exceptions in plurinational K. Guruparan (B) Department of Law, University of Jaffna, Jaffna, Sri Lanka e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_5

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contexts. The second and third sections deal with two case studies—Sri Lanka, in quite some detail and India as a short note.

2 A Normative Understanding of States of Exceptions in Plurinational Contexts Carl Schmitt’s proximity to the German Nazi party and the decisionism that riddles his legal philosophy should not blind us to his work on the state of exception and his resulting take on sovereignty.1 His argument that is of relevance for my discussion here is his argument that the true sovereign manifests himself in a state of exception.2 Schmitt through his theorsation of the sovereignty in connection with the exception was mounting a challenge to liberal constitutionalism arguing for the primacy for the political over the legal. His argument was that the authority identifying the exception decides on its own discretion its temporal scope and substantive content and precisely of this character of being unconstrained it is the true sovereign. His disagreement with liberal constitutionalism then was that this domain of the exception was not subject to the law. For Schmitt argued that in invoking the exception the law recedes allowing the sovereign to emerge and to conduct the affairs of the state. But Schmitt does not disregard the relevance of the law altogether. His argument was chiefly that the exception was not governed by the law but that the law could return to its normal function when the sovereign had decided that the state of exception was over. But why is a state of exception called for? According to Schmitt a political community is defined on the basis of a friend-enemy distinction. The state of exception is promulgated by the sovereign to enforce this distinction and to constrict the enemy through violence, suppression, elimination or expulsion.3 This distinction Schmitt claims is political and not social and hence identity based considerations such as ethnicity and religion, while may contribute to the drawing of this political distinction are not the only means of distinguishing the friend and the enemy. The crucial question is as to whether the people consider a particular identity marker as important enough as defining their political existence. It is defined in contradistinction to others who do not share that identity and according to Schmitt has to be defended by going to war against the other. Schmitt while repeatedly insisting on the political nature of this distinction does concede that his friend-enemy distinction has to be a sense of shared identity that stands above legal form and that this shared identity has to be strong enough to wage war against the other.

1 Representative

works most relevant to the discussion herein include, Schmitt, Carl: The Concept of the Political. Expanded Edition (1932), trans. by G. Schwab. University of Chicago Press (2000), and Political Theology. Schmitt, Carl: Four Chapters on the Concept of Sovereignty (1922), trans. by G. Schwab, University of Chicago Press. (2005). 2 Schmitt, Political Theology 5. 3 Schmitt, Concept of the Political 46–48.

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The primary problem with Schmitt of course is that he thinks that this friendenemy distinction is desirable. In other words for the political to function on such a distinction is for Schmitt a normatively valuable proposition. He criticised liberal states for failing to distinguish properly between friends and enemies, and thus to extend rights of membership to those who do not truly belong to the political nation. For Schmitt for the survival of the state it is necessary to make sure that the boundaries of the political nation and the boundaries of citizenship coincide. Hence in the state of exception a sovereign dictator appeals to a clear friendenemy distinction seeking to identify the polity with a singular community. Those who do not share this monist view of political community are enemies of the state who have to be eliminated or sufficiently suppressed so that they don’t pose a threat to the state.4 The role of the sovereign then in the state of exception is to reinforce the dominant community’s understanding of what is normal or exceptional and as to who belongs and who doesn’t. It is by establishing such a monistic community Schmitt argues, that the proper applicability of law during normal times is rendered possible. Schmitt however is careful to clarify that his intention is not to glorify warfare but that if the community is interested in its political existence, that war may be inevitable in order to sustain itself.5 This conclusion about the rationale for the exception as being aimed to define the normal is very important. The exception defines the human existence that is politically relevant and that which is not. Hence it is the exception that defines the normal. In the normal, existence is not possible unless one accepts the distinction drawn by the exception. If you are the ‘enemy’ you accept the dominance of the ‘friend’ and if not there is no prospect for a normal for a member of the enemy community. Giorgio Agamben went a step further in identifying the continuity of the normal and the exception.6 Agamben rightly argues that it is impossible to precisely define what determines the transition from the exception to the rule or from the abnormal to the normal. The standard explanation in constitutional law is that a state of necessity governs the temporal life of an exception. However as Agamben points out this necessity cannot be objectively defined in a legal sense. There are no such objectively identifiable finite set of situations that constitute a necessity. Hence Agamben argues states of exceptions exist in a ‘zone of indifference’. The inability of law to police necessity hence according to Agamben provides the environment in which the exception becomes the rule. Hence according to Agamben the exception, as an exception is an illusion. Current constitutional debate on emergencies about suspending rights of due process to address a severe security threat i.e., seeking to reframe this as a matter relating

4 Concept

of the Political 46–8. of the Political 32–5. 6 Agamben, Giorgio: State of Exception, trans. K. Attell, University of Chicago Press (2004), Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. tr. Daniel Heller-Roazen, Stanford University Press, (1998). 5 Concept

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to strike a balance between liberty and security, and asserting the necessity of executive decision to tackle a severe crisis is fundamentally pervasive. For Agamben this is an attempt to rescue law—it creates the illusion that law can still confine law. Agamben however argues that this illusion has an important political function. It helps sustain the idea that law can constrain politics, while in fact the contrary is true. The debate on balancing liberty and security then tries to hide the real force of political power and helps perpetuate the illusion that nothing has changed. We become in other words accustomed to understanding that exceptions are in fact exceptions while in fact they have become the normal. Hence politically there is also a need for us who do not wish to drown ourselves in the normalising of the exception to remind ourselves that we should not accept the exception as the normal. The objectives of the exception succeed when its recipients accept the exception as the normal. And the prescriptive part of Agamben’s work is dedicated to how one may then break this internalisation of exception. This is the part where he engages with the work of Walter Benjamin.7 I will not say anything about this for the lack of strict relevance to my intentions in this paper. What does Agamben make of Schmitt’s friend-enemy distinction? Obviously Agamben disagrees with Schmitt in his normative endorsement of the definition of politics on a friend-enemy distinction. But the disagreement is also not merely normative but also descriptive. Agamben’s work invites us to go beyond the enemydistinction and makes use of Foucauldian notions of bio-power to make the point that the state of exception in its normalised version has reduced all life into bare existence. For Agamben then the sovereign does not need the binary of friend and enemy. The situation presented is far more complex and the idea of power is far more nuanced that the sovereign need not appeal to the friend-enemy distinction to subject us to the bare life of existence that we find ourselves in. Let me now turn to some direct comments on the relevance of this discussion to understanding the constitutional praxis and states of emergencies in plurinational contexts that are deeply divided and in conflict. By deeply divided states I refer to states that are in fundamental turmoil as to the identity and nature of the State as a result of the plural composition of its polity which is not recognised by the constituting instrument of state power—the constitution which is under the control of the dominant community. This fundamental turmoil most of the time involves armed conflict. That the Nationalities Question is very much alive is empirically proven. Cosmopolitanism has at least not yet eroded the attachment to nationalism. While statist nationalism seeks to find new ways to assert itself in the era of globalization stateless/state-seeking nationalisms across the world be it Scotland (UK), Quebec (Canada), Catalonia (Spain), Kurdsithan (Iraq/Turkey/Syria), Kashmir (India) or Tamil Eelam (Sri Lanka) also continues to thrive. The nationalism of these stateless nations is largely in response to the fact that the state has identified itself largely with a singular nation or demos denying in essence the multinational/plurinational 7 See

further Moran, Brendan and Salzani, Carlo (eds.): Towards the Critique of Violence: Walter Benjamin and Giorgio Agamben, Bloomsbury (2015).

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character of the state. The confounding of the state with the nation surprisingly to date remains a popular idea in the study of political science, international relations and in international law. John Sturart Mill’s well-known claim that ‘free institutions are next to impossible in a country made up of different nationalities’ dominates scholarly work on democratic theory to this day. Habermas for example asserts that while not all nation-states have not been democracies that all democracies have been indeed nation-states. His theory of constitutional patriotism which draws from civic nationalism in fact seeks to reproduce the false dichotomy between civic and ethnic nationalism.8 There is indeed a bias on favour statist nationalism willing to endorse it as civic nationalism while branding non-state nationalism as ‘ethnic’ and ‘primordial’. This also finds itself reflected in the theory and practice of liberal constitutionalism that seeks to gloss over. The ideology of the nation-state is most of the time accompanied by rigorous nation-building exercises, which seek to coerce the non-believers into assimilating with the larger nations and their culture. These assimilatory tendencies are not only a feature of illiberal states but also of liberal states. Liberal nationalists have for some time questioned the falsehood of liberal states being culturally neutral. As Requejo argues liberal democracies have always acted as ‘nationalising agencies for specific cultural particularisms’.9 The nature of the nation-state is such that it wittingly or unwittingly converts the public sphere in favour of the dominant nation within the state. It assumes that there is only one people (demos) within the state who share the characteristics of this dominant nation. This is what the plurinationalist theorists call the ‘monist thesis of the state’. Public law and the power structure of the state is arranged without affecting the notion of ‘democratic legitimacy’ in a way that benefits the dominant nation. Herein the stateless nation feels alienated. In worse forms not alien to even Western liberal states, the state actively pursues a policy of assimilation of the ‘others’ so as to forcibly create this monist nation-state. This provides the breeding ground for stateless nationalism to grow which is more often than not accompanied by violence and in a number of cases civil war. Hence the claim to self-determination by these stateless nations is a direct challenge to the notion of a nation-state. As Stephen Tierney neatly puts it, central to the challenge presented by sub-state national societies to the host state is a call for the disaggregation of the terms ‘state’ and ‘nation; those who adhere to the traditional conceptualisation of the ‘nation-state’ as one politico-constitutional territory encapsulating 8 Rogers

Brubaker has convincingly argued that there is an element of ethnic-cultural emphasis in (western) societies typically defined as civic nations and there are civic characteristics in categories defined as ethnic nations. Defining civic nationalism strictly would lead to there being very few or no civic nationalisms (even France or the US will not be able to fit into the category). Defining ethnic nationalisms narrowly produces the same result. Defining these broadly would lead to conflation of the two and hence the distinctions will fail their purpose. Roger Brubakcer Myths and Misconceptions in the Study of Nationalism, in Moore, Margaret: Secession and National Self-Determination, Oxford, (1998) p. 258 Also see: Yack, Bernard: The Myth of the Civic Nation. Critical Review, 10(2) 193–211 (1996). 9 Requejo, F.: Democratic Legitimacy and National Pluralism. In: Requejo, F (ed.), Democracy and National Pluralism pp. 157–177. Routledge, London (2001), at 167–169.

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In the plurinational context the fault lines of the friend-enemy distinction that Schmitt alludes to as the purpose of a declaration of the state of exception is very clear. The sub-state entity seeking to question the very foundations on which the state nationalism has been built is the ‘enemy’ that needs to be eliminated or suppressed. In plurinational contexts then the state of exception is invoked more of then that not to resolve this friend-enemy distinction. The purpose of the state of exception is defeating the sub-state’s claim to sovereignty, claim to state power and the project of radical re-envisioning of the state. Schmitt it will be recalled, identifies quite explicitly the resolution of the friend-enemy problem as the purpose of the sovereign invoking the state of exception. Self-determination conflicts provide for an exemplary illustration for the uses of which Schmitt’s conception of the state of exception can be put to use. In many a context the tensions over the construction of monist societies has led to armed war, wherein the violence of the state in its project to construct a monist society and to reify the friend’s victory over the enemy has resulted in violence and counter-violence. Hence as Schmitt has argued a resort to war in these circumstances, was an attempt to resolve problems associated with this friend-enemy distinction. But the problem with Schmitt was his pre-occupation with war as the instrument of the sovereign to enforce a monist understanding of community. The war to be clear is indeed an important instrument in the attempt to advance the interests of a monist political community. But war is not the only instrument. The state of exception as was seen earlier is only an instrument to define the normal. The normal seeks to perpetuate that which was defined by the exception and hence the normal has characteristics in it which help perpetuate the distinctions and dominations thus established by the sovereign. Outright war is used sparingly and states have learnt to use more sophisticated means of entrenching the friend-enemy distinction. The slow creeping exception into the normal is also seen in the legal domain where ordinary law has features of the exception. Hence the exception has become all pervasive as Agamben has shown us. The problem with the Agamben however is the reductionism in arguing that the state of exception affects all citizens alike. While Agamben is right that all citizens are subject to the effects of the penetration of the exception into the normal the different and varied experiences of different communities because of the distinction that Schmitt points us to and that which continues to define the way politics is done even today, is cast aside in Agamben’s analysis. Liberalism has been rightly accused of glossing over the collective experiences of different groups of individuals and inadvertently Agamben’s reduction of all lives as being subjected to the same bare life is open to the same criticism of being reductionist. There is one final normative argument as with regard to constitutional law of plurinational states and states of exception that needs to be made before concluding 10 Tierney Stephen: Constitutional Law and National Pluralism, Oxford University Press (2005), p. 5.

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this section one. This is with regard to the identity of the sovereign in plurinational contexts. Schmitt’s analysis of the true sovereign as being identified by the one who invokes the exception in the plurinational context reinforces the identity of the sovereign as not explained by popular sovereignty but by majoritarianism. Hence in plurinational democracies which are in effect reduced to an ethnocracies, the true sovereign is identified with the dominant community. Accordingly centralisation of powers and a unitary vision of state are strictly adhered to as the best way of protecting the unity of the state and this understanding pervades into the normal. Any alternative envisioning of the state for example on federal or confederal lines are seen as an attack on the unity of the state. Constitutional law has largely focused on the emergency powers when thinking about states of exception but in plurinational democracies governmental institutions for normal times are designed based on the rationale of the exception. Hence in plurinational democracies centralisation of powers in a particular institution (which Schmitt would conclude as the true sovereign) is not merely a characteristic of the exception but also of the normal. I will now turn to two case studies from the Global South that I think provide practical insights to the normative arguments presented in this section.

3 Case Study: Sri Lanka This section is organised in two parts. The first discusses the relationship between centralisation of power and the state of exception in post-colonial and Sri Lanka and the second discusses the use of national security laws in constructing a singular idea of political community in post-colonial Sri Lanka.

3.1 Centralisation of Powers and the State of Exception Sri Lanka, formerly Ceylon, witnessed a 30 year old civil war which ended in 2009, fought on the back of a long standing protracted ethnic conflict. The antecedents of the conflict are to be found in the colonial era and the conflict continues to date despite the brutal end of the war. The National Question in Sri Lanka pertains to the nature of the state. The introduction of procedural democracy in 1931 to what then known as Ceylon, a first for any British Colony, introduced the possibilities of doing democratic party politics on ethnic lines.11 Political parties took on ethnopolitical agendas and its worst consequences manifested itself first in the form of a question over the official language of the state. The forces of ethno-national politics were unleashed less than a decade after colonial independence when Sinhala the

11 For

a detailed account see: Wickremesinghe, Nira: Ethnic Politics in Colonial Sri Lanka 1927– 1947. Vikas (1995).

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majority language was declared the official language in 1956.12 Policies over land redistribution, access to education and agriculture were all successively tainted by majoritarianism and soon the Tamils, the largest numerical minority asserted its claim to self-government in the form of a federal demand.13 The federal demand which sought a radical reorganisation of state power was side lined and was met by systematic state sponsored violence which eventually led to the Tamils taking up violence and secession.14 A 30 year old war ensued which ended brutally in 2009 with the defeat of the Liberation Tigers of Tamil Eelam (LTTE). One of the central organising principle of Sinhala Buddhist constitutional philosophy has been the need to retain a unitary state in order to, according to its in its own internal logic, retain a united Sri Lanka and to ensure the continuance of the Budhdhist religious order in the country. The two Republican constitutions enacted in 1972 and 1978 hence despite preferring two different forms of Government (the Westminster style parliamentary system and the executive presidency) created institutions that sought to place powers quite clearly in one institution of state. The 1972 constitution created an invincible parliament stripping judiciary even of judicial review powers which it had previously enjoyed and the second republican constitution created an executive president to whom the parliament for all intents and purposes was subservient. Both constitutions also in consonance with the centralisation of powers in the centre provided pride of place to Sinhala as the official language and to Buddhism as a quasi-state religion thus clearly establishing the fault lines of the friend-enemy distinction.15 The desire for centralisation of power found its initial expression in the Sinhala majority’s discontent with Section 29 of the British given dominion constitution (commonly known as the Soulbury Constitution) that outlawed any legislation that sought to discriminate one community over the other. This constitutional protection however failed to prevent legislation that disenfranchised the Up Country Tamil community in 1948 and similarly also failed to prevent the passage of the official language act in 1956.16 Hence the Constitution as the constituted normal law of the State, failed in the face of the dominant community’s attempts to clearly draw the 12 Official

Languages Act no 33 of 1956.

13 Peebles, Patrick: Colonization and Ethnic Conflict in the Dry Zone of Sri Lanka, Journal of Asian

Studies. 49 (1) 30–55. 14 Tiruchelvam, N.: The Politics of Federalism and Diversity in Sri Lanka in Y. Ghai (Ed.): Autonomy and Ethnicity: Negotiating Competing Claims in Multiethnic States. Cambridge University Press (2000) Wilson, A.J: Sri Lankan Tamil Nationalism: Its Origins and Development in the 19th and 20th Centuries, Hurst & Co (2000). 15 For a detailed study of the 1972 and 1978 constitutions on centralising power in the Sinhala Buddhist majority see: Welikala, A (Ed.): The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice. Centre for Policy Alternatives (2012), Welikala, A. (Ed.) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects. Centre for Policy Alternatives (2015). 16 Welikala, A.: The Failure of Jennings’ Constitutional Experiment in Ceylon: How ‘Procedural Entrenchment’ led to Constitutional Revolution, in A. Welikala (Ed.): The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice. Centre for Policy Alternatives (2012).

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lines between the friends and enemies of the state and an explicit attempt at defining who belongs and who did not. The normal law then was nullified by the political which despite not being in a legal state of exception/emergency. That the courts did not utilise Section 29 to declare the official language act ultra vires was not satisfactory to those who sought an unhindered path to Sinhala Budhdhist hegemony. Section 29 thus became a nuisance to the programme to establish the identity of the state and the mere existence of the instrument of judicial review was seen as an irritant to the homogenisation project. This view was explicitly articulated in a speech delivered by an influential minister during the process of doing away with the independence constitution and establishment of the 1st Republican constitution: It will astonish most people in this country to hear that what has been considered the most vital law that was passed in 1956 by the Government of the late Mr. Bandaranaike is still in issue in the courts…Can you imagine a situation like that? Here is a basic law of our country, and by reason of the power given to the courts to sit in judgment on the validity of the law as distinct from the interpretation of the meaning of the law, we do not know where we are and we are rightly acting on the footing that the law is a good one until it is set aside. But, just imagine, how do you run this country in that situation?…If the courts do declare this law invalid and unconstitutional, heavens alive! The chief work done from 1956 onward will be undone. You will have to restore the egg from the omelette into which it was beaten and cooked.17

Note that the lawyer-minister is referring to the official language act as the ‘basic law of our country’ and not to the constitution. The ‘uncertainty’ brought about the liberal protection of minority rights in the constitution is interpreted herein as a destabilising factor affecting the political movement that had been set in motion in 1956 and the solution is the ridding of judicial review powers which nevertheless had proved impotent. The main complaint against judicial review then was the susceptibility of it being used as an instrument by the minorities to thwart the programme of homogenisation. Basic tenants of liberal constitutionalism were considered luxurious and expensive to this political agenda and as weakening agents in the construction of a strong state. These liberal constitutional principles were not sought to be displaced as a matter of exceptiontionality but rather as the normalised way in which the constitutional order was to be envisaged. The 1972 constitution’s disbanding of Section 29 hence is an excellent example of the possibility of taking forward an agenda of the exception of through the normal process of constituting a constitutional order. The centralisation of state power thus initiated through the first republican constitution found its most brazen expression in the second republican constitution which provided for a unitary state and a parliament that explicitly unconstitutionalised any form of sharing legislative power.18 This provision was a significant obstacle to realising the quasi-devolution of powers scheme negotiated with Indian mediation.19 The scheme finally failed not able to withstand the deep rooted ideology of unitarism in 17 Constituent

Assembly Debates, 3rd July 1971: Col.2832. 2 and 76 of the Second Republican Constitution. 19 Constitutionally provided through the 13th amendment to the Constitution which set up a provincial council system in Sri Lanka. 18 Article

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the constitutional political praxis of Sri Lanka. Not only did the scheme of devolution fail but a later amendment that sought to take away the unilateral appointment powers that the Executive Presidency had over public institutions20 also failed in the face of a political praxis that allowed the Executive President to whole sale ignore an entire chapter of the constitution. The 17th amendment was formally done away with through the 18th amendment after the end of the war in 2009. The end of the war reversed as I have elsewhere argued,21 the liberal consensus within the political elite to do away with the Executive Presidency, and ended up strengthening the Executive Presidency by doing away with the 17th amendment and abolishing term limits on the executive Presidency. It was argued that it was the Executive Presidency as an institution that allowed the war to be concluded and that the continuation of the Executive Presidency was necessary for continuing stability and prosperity. Centralisation of power hence in the Sri Lankan context has rebelled against the basic tenants of liberal constitutionalism such as separation of powers and asserted itself as a necessity for the continuity of the state. The rationale for centralisation of power in Sri Lanka has been mounted on the grounds of necessity but also for continuity of the State. The argument is both that it is needed for exceptional reasons but also as an organising principle of the constitutional order if Sri Lanka is to survive and prosper as a singular political community.

3.2 National Security Laws and the State of Exception This section focuses on the sixth amendment to the Constitution in Sri Lanka, the Prevention of Terrorism Act and the war-time Emergency regulations as examples of how these laws for exceptional times are long term normalising devices used to quieten the challenge to the state structure posed by the Tamil self-determination project. An important example of the constitution being used to enact into normal law a particular agenda of building a monist political community is the 6th amendment to the 2nd republican constitution which criminalised advocacy for a separate state including by non-violent means.22 The amendment was enacted in the backdrop of state sponsored pogrom leashed out against Tamils all over the island of Sri Lanka 20 The 17th Amendment to the Constitution that provided for the setting up of a widely representative Constitutional Council to whom such appointment powers were shifted to, away from the Presidency. 21 Guruparan, K.: The Irrelevancy of the 13th Amendment in finding a political solution to the National Question: A Critical note on the Post-War Constitutional Discourse in Sri Lanka. 3 Junior Bar Law Review 3, 30-42 (2013). 22 The Sixth Amendment to the Second Republican Constitution of Sri Lanka provides that no person shall directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka. The consequences of criminal conviction of violating the said provision include being subjected to civic disability for seven years, forfeiture of both movable and immovable property, if he or she is a Member of Parliament, forfeiture of such membership. The same amendment provides that it would be criminal for any political party, association or organization to entertain as one of its aims

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in July and August 1983. The Sixth Amendment to the Constitution certified on 08 August 1983. The violence was described by the International Commission of Jurists then as amounting to acts of genocide.23 The immediate objective of the Sixth Amendment was to disseat the 16 Members of Parliament of the Tamil United Liberation Front who were elected on a separatist manifesto in 1976 that called for the establishment of a separate state for the Tamils in the island. The idea of the amendment was mooted by President JR. Jayawardena, in an address to the nation on 28 July 1983, his first response after the country’s largest post-independence violence, in which he made no reference to the genocidal acts perpetrated by the Sinhala Buddhist hooligans supported by his Government. The intention of the 6th amendment went way beyond the purpose of responding to the challenge of ‘terrorism’. In fact the sole purpose of the sixth amendment is to criminalise the peaceful and political advocacy of a separate state and more broadly the Tamil advocacy for self-determination. It is submitted that the sixth amendment has this broader purpose because five years prior to the enactment of the sixth amendment, by the enactment of the ‘Proscribing of Liberation Tigers of Tamil Eelam and Other Similar Organizations Law’, No. 16 of 1978 the parliament had not only banned the Liberation Tigers of Tamil Ealam (LTTE) but also any other organization that advocated the use of violence and is either directly or indirectly concerned in or engaged in any unlawful activity. Accordingly the purpose of the 6th amendment needs to be seen in light of the state’s border purpose of criminalizing the advocacy and espousal of self-determination by the Tamil people’. The sixth amendment was and continues to be an important stumbling block towards resolving the conflict through peaceful means. In the 2002–2006 peace process facilitated by Norway, the outlawing of the advocacy of a separate state placed the Tamils and their representatives at the talks—the Liberation Tigers of Tamil Ealam—at a structural disadvantage. The sixth amendment in fact functioned as a non-negotiable pre-condition in favour of the Sri Lankan state while the Government itself was not subjected to any pre condition. The sixth amendment and the law banning the LTTE, was also used to ban the Tamil Rehabilitation Organisation, a humanitarian organization for alleged links with the LTTE in 2007 just before the onslaught of the last phase of the war. The move was intended to prevent Tamils looking after their own rehabilitation and to discourage individual, organisational and international contribution to addressing Tamil humanitarian issues’. The national security legislation enacted by the Sri Lankan state during the period of the war was brought into provide support to the design of a monist state so clearly laid down by the constitution. The key piece of legislation that was used in this exercise is the Prevention of Terrorism Act. The Prevention of Terrorism Act was or objects the establishment of a separate State within the territory of Sri Lanka. The Supreme Court on application can declare such political party or other association or organisation to be proscribed. Any person who holds office in the organization can be prosecuted and if convicted be subjected to the consequences referred to above. 23 Sieghart, Paul: Sri Lanka-A Mounting Tragedy of Errors - Report of a Mission to Sri Lanka in January 1984 on behalf of the International Commission of Jurists and its British Section, Justice, (March 1984).

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enacted in 1979 as a temporary measure, as an aspect of the then government’s military strategy in dealing with the early stages of the Tamil militant movement and more broadly as a political strategy to contain and narrow down the political space for the Tamil self-determination movement. The sun set clause—Section 29 of the original enactment expressly provided that it would be in force only for a period of three years, but this was repealed by the Prevention of Terrorism (Temporary Provisions) Amendment Act No. 10 of 1982, making the PTA a permanent measure, although incongruously, the short title of the Act continues to contain the words ‘temporary provisions.’ The Act as a whole has many problematic features. For example Section 6 (1) provides for arrest without warrant, Section 7(1) provides for detention of a person arrested initially for 72 h before producing before a magistrate, Section 9(1) provides for detention for a period of three months extendable to eighteen months and Section 16 provides for confession given to a police officer not below the rank of an Assistant Superintendent of Police as admissible evidence. Of particular concern is Section 2(1) (h) of the PTA provides that any person who by words either spoken or intended to be read or by signs or by visible representations or otherwise causes or intends to cause commission of acts of violence or religious, racial or communal disharmony or feelings of ill-will or hostility between different communities or racial or religious groups has committed an offence which per Section 2(2) is liable to be punished for a minimum of seven years and a maximum of seven years. In Nallaratnam Singarasa v Sri Lanka24 the Human Rights Committee noted that Section 16 was in violation of articles 14, paragraphs 1, 2, 3, (c), and 14, paragraph (g) of the Covenant. In Nallaratnam Singarasa v Attorney General25 the Supreme Court of Sri Lanka refused to reconsider its decision based on the observations of the HRC and further found that Sri Lanka’s accession to Optional Protocol 1 was contra the Constitution of Sri Lanka. The Prevention of Terrorism Act similar to the sixth amendment is used to curtail and criminalise Tamil politics. The most high profile example of such usage was the one against J.S. Tissanayagam, a Tamil journalist and editor, who was arrested in 2008 and convicted under Section 2(1) (h) for writing and publishing articles critical of the Sri Lankan military’s conduct of the war in violations of principles of humanitarian law. The article in question argued that the state was depriving the Tamils in the East of access to food and water as part of the Sri Lankan Army’s strategy to take over lands which were hitherto under the control of the LTTE. The state prosecutor’s principal argument in court was that the criticism of the Sinhala-only Army would create communal disharmony between the Tamils and the Sinhala community. Tissanayagam was sentenced to 20 years imprisonment and subsequently released on a Presidential pardon following international pressure and condemnation. Another post-war example of the use of the PTA to regulate the Tamil public sphere is from November 2012, wherein four students attached to the University of Jaffna were

24 Communication 25 SC

No. 1033/2001. Decided on 21 July 2004. Special Leave to Appeal 182/99 decided on 15.09.2006.

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arrested26 and sent for ‘rehabilitation’ for more than four months, under the newly enacted regulations promulgated under the PTA for holding events at the university in remembrance of the dead in the war. The students were treated as “surrendees” a new category of disciplining introduced under the PTA. Clause 3. (2) of PTA Regulations no. 5 of 2011 provides that “Any person who surrenders (hereinafter referred to as the “surrendee”) in connection with any offence under the Explosives Act, the Offensive Weapons Act, No. 18 of 1966, the Firearms Ordinance, the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 or under Chaps. 6, 7 or Chap. 8 of the Penal Code or under any emergency regulation which was in force prior to August 30, 2011, or through fear of terrorist activities, to any police officer, or any member of the armed forces, or to any public officer or any other person or body of persons authorized by the President by Order, shall be required to give a written statement to the officer or person authorized to the effect that he is surrendering voluntarily”. The regulations provide that a person who has thus ‘voluntarily surrendered’ to be assigned for rehabilitation by the Defence Secretary acting through the Commissioner General for Rehabilitation. A person who voluntarily surrenders can be held for an initial period of 12 months and a maximum period of two years at the Defence Secretary’s discretion. Given that the security establishment claims that the students are being ‘rehabilitated’, it was assumed that the students are being held for rehabilitation under these regulations. This case brought into light the enormous powers under these regulations. An arrest could be converted into a surrender and the surrendee could be assigned for rehabilitation on the discretion of the Defence Secretary which could not be subjected to judicial scrutiny. The most bizarre aspect of this regulation is that the surrender need not have anything to do with an offence. An arrest could be converted into a surrender by the police applying pressure on the person arrested that if he did not consent that he could be detained for a period of 18 months under the usual provisions of the PTA. The arrested students were reluctant to take legal action fearing that their potential release after rehabilitation could be affected by way of a formal arrest under the PTA. The students were eventually released after four months in captivity. University sources argued that the arrests were intended to send a larger message to the influential students union to constrict their political activities. The design of these security regulations in the post-war context was tailored to serve as an instrument in the overall design of preventing any possible political re-appearance of the Tamil self-determination project after the defeat of its armed phase in 2009. In the post-war context any discourse on the repeal of the Prevention of Terrorism Act continues to be a non-starter. There is resistance from the Armed Forces and Sinhala Buddhist forces to repeal the Act. The only logical explanation for retaining the act is because to keep it on the statute book helps to perpetuate the abnormalcy prevailing in the North and East parts of the country where the law is used routinely to arrest and detain Tamil activists. The Prevention of Terrorism Act which began its 26 Amnesty

International, ‘Urgent Appeal: Students at risk of torture’, http://www.amnesty.org/en/ library/asset/ASA37/014/2012/en/a5fdf2a4-edf3-40a9-8d66-070decb5c3a1/asa370142012en.pdf (04 December 2012).

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life as a temporary act then transformed as an ordinary law part of the general statute book during the pendency of the war continues to remain on the statute books for only one reason—to help the State retain the benefits of the war victory and to keep the Tamil Self-Determination project subjugated in a securitised environment. The use of declarations of state of emergency and the promulgation of emergency regulations curiously sat side by side the Prevention of Terrorism Act providing the security apparatus the option of forum shopping—picking and choosing which law to use for arrest and prosecution. Hence even after the declaration of emergency was let to lapse in August 2011 the state of emergency practically continues. As if the PTA was not enough to handle the lack of regulations of emergency during this legally normal times new regulations were enacted under the PTA as referred to earlier. The emergency regulations on their own given their long existence (they remained in force throughout the period of the conflict) say to day lives of the people. A study conducted by the University of Colombo found that the ambit of the emergency regulations went beyond the realm of regulating the period of exception. Emergency regulations dealt with subjects as broad as edible salt, adoption of children and driving licences.27

4 The Indian Experience The Indian experiment with federalisation on the surface might seem to provide a counter-narrative to the Sri Lankan experience but one only needs to look at the emergency powers vested in the Indian state to illustrate the enduring nature of centralisation as a feature of South Asian, post-colonial constitutions. The Indian Constitution while federal in normal times has been described as a perfect unitary state during times of emergency.28 The more complicated truth is that for parts of India which agreed with the dominant narrative of what constituted India, the normal federal experience has been continuously available while those parts that fundamentally question the nature of the Indian state the prolonged state of crisis has meant that the Indian constitutional experience has been one of a unitary state. This is true for most of the North-Eastern states and Kashmir.29 The primary instrument of control over the North-East has been the Armed Forces (Special Powers) Act first enacted for the North-East in 1958 and in operation in Kashmir since 1990. It is not a coincidence that two regions in which the Indian state has struggled to meet demands for autonomy and self-determination are the two regions in which the law is applicable. The AFSPA for the North-Eastern states was enacted soon after the Nagas organised an informal plebiscite in favour of a separate state. The Act was also 27 Centre

for the Study of Human Rights & the Nadesan Centre (1993) Review of Emergency Regulations 3 (Colombo: University of Colombo). 28 Constitutional Assembly Debates Volume VII, para 211 (04 November 1948). 29 This paper was written prior to the revocation of Article 370 by the Narendra Modi Government, which further strengthens the argument put forward in this section.

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used in Punjab in the mid-1980s to contain the Khalistan movement and remained in place until 1997 when for all intents and purposes Punjab had stopped being a threat to the idea of the Indian State. As Atul Kohli frames the Punjab experience: …[O]ver time, militants were repressed out of existence, and a tired population was relieved to accept some concessions from a more accommodating national leadership and to vote an elected provincial government back to power30

AFSPA provides wide ranging powers to the Indian Army. Once declared a “disturbed area” by either the state Government or the central government certain special powers, including the right to shoot to kill, to raid houses, and destroy any property that is likely to be used by insurgents, to arrest without warrant even on “reasonable suspicion” a person who has committed or even “about to commit a cognizable offence” are available to the Indian Armed Forces under the AFSPA. No less than an Indian Government Committee opined that the law was “a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness.”31 The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, visited India in March 2012 and concluded that ‘the widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict.32 ” The other important tool that the Indian Government has used is the British colonial given law of sedition33 that has been used to police speech over self-determination for Kashmir.34 The Indian experience thus understood confirms the Sri Lankan narrative, that of the state of exception being normalised to shape the kind of political community that will be dominant within the state structure.

30 Kohli, Atul: Can Democracies Accommodate Ethnic Nationalism: Rise and Fall of SelfDetermination Movements in India, Journal of Asian Studies, 56(2) (1997) 325–344. 31 Ministry of Home Affairs, Government of India: Report of the Committee to Review the Armed Forces (Special Powers) Act, 1958. (2010), p. 75. 32 Heyns, Cristof: Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions„ Mission to India. (29 May 2013). Also see most recent report by the Office of the High Commissioner for Human Rights, OHCHR, Developments in Kashmir June 2016 to April 2018 (14 June 2018) available here, https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInK ashmirJune2016ToApril2018.pdf Accessed July 2018. 33 Section 124 A of the Indian Penal Code. See for detailed discussion Narrain, S: Disaffection and the Law: The Chilling Effect of Sedition Laws in India. Economic and Political Weekly. 46 (8) 33–37. 34 See for example, The Guardian: Arundhati Roy faces arrest over Kashmir remark. (26 October 2010) https://www.theguardian.com/world/2010/oct/26/arundhati-roy-kashmir-india. Accessed September 2017.

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5 Conclusion The paper has argued that in plurinational contexts that are embroiled in armed conflict the state of exception has been used to invoke National Security Laws and related to manage the conflict itself and to use the force of the state to settle the friendenemy distinction that Schmitt identified as the purpose of the state of exception. It has also argued that though centralisation of power has been justified by political elites as an exception to the liberal constitutional paradigm and not as an abandoning of the same, that centralisation has become a normal and essential feature of constitutional praxis in plurinational states aimed at protecting the dominant community’s status in the state. This is in its totality shows a process whereby the constitution and laws beholden to the dominant community are instumentalised in the normalisation of what should be otherwise considered to be abnormal. This needs further substantiation but through the Sri Lankan and more briefly the Indian case studies I have tried to illustrate these conclusions. How does one respond to this problem in plurinational context? This paper is not devoted to answering this question but I think an important starting point to answering these questions is to start questioning the assumptions that liberal constitutionalism to its answers. For far too long the simple mantra of rule of law and good governance has been suggested as the panacea for dealing with questions that go to the heart of the character of the state, its political-social composition and states of emergencies. The answer to the illiberal national security regimes is not to understand them as exceptions but as normalised states of being that are reflective of a far deeper fracturing of the societies that make up the state. A truthful diagnosis of the problem will most often than not, help us resolve the problem.

References Agamben G (1998) Homo sacer: sovereign power and bare life. tr. Daniel Heller-Roazen, Stanford University Press Agamben G (2004) State of exception, trans. University of Chicago Press, K. Attell Brubakcer R (1996) Myths and misconceptions in the study of nationalism, in Moore, Margaret: secession and national self-determination, Oxford, (1998) p. 258 Also see: Yack, Bernard: the myth of the civic nation. Critical review 10(2):193–211 Centre for the study of human rights & the nadesan centre: review of emergency regulations. Colombo (1993) Guruparan K (2013) The irrelevancy of the 13th amendment in finding a political solution to the national question: a critical note on the post-war constitutional discourse in Sri Lanka. 3 Jr Bar Law Rev 3, 30–42 Heyns C (2013) Report of the special rapporteur on extrajudicial, Summary or arbitrary executions, mission to India (29 May 2013) Kohli A (1997) Can democracies accommodate ethnic nationalism: rise and fall of selfdetermination movements in India. J Asian Stud 56(2):325–344 Moran B, Salzani C (eds) (2015) Towards the critique of violence: Walter Benjamin and Giorgio Agamben, Bloomsbury

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Narrain S Disaffection and the law: the chilling effect of sedition laws in India. Econ Polit Wkly 46(8):33–37 Peebles P Colonization and ethnic conflict in the dry zone of Sri Lanka. J Asian Stud 49(1):30–55 Report of the Committee to Review the Armed Forces (2010) (Special Powers) Act, 1958, Ministry of Home Affairs, Government of India Requejo F (ed) (2001) Democracy and national pluralism. Routledge, London, pp 157–177 Schmitt C (2005) The concept of the political. Expanded Edition (1932), trans. by Schwab G, University of Chicago Press (2000), and Political Theology. Schmitt, Carl: Four Chapters on the Concept of Sovereignty (1922), trans. by Schwab G, University of Chicago Press Sieghart P (1984) Sri Lanka-A mounting tragedy of errors-report of a mission to Sri Lanka in January 1984 on behalf of the international commission of jurists and its british section, Justice The Guardian (2010) Arundhati Roy faces arrest over Kashmir remark’ 26 Oct 2010. https://www. theguardian.com/world/2010/oct/26/arundhati-roy-kashmir-india. Accessed Sept 2017 Tierney, S (2005) Constitutional law and national pluralism, Oxford University Press Tiruchelvam N (2000) The politics of federalism and diversity in Sri Lanka in Ghai Y (ed) Autonomy and ethnicity: negotiating competing claims in multiethnic states. Cambridge University Press Welikala A (ed) (2012) The Sri Lankan republic at 40: reflections on constitutional history, Theory and practice. Centre for Policy Alternatives Welikala A (ed) (2015) Reforming Sri Lankan presidentialism: provenance, problems and prospects. Centre for Policy Alternatives (2015) Wickremesinghe N (1995) Ethnic politics in colonial Sri Lanka 1927–1947. Vikas Wilson AJ (2000) Sri Lankan tamil nationalism: its origins and development in the 19th and 20th Centuries, Hurst & Co

Political Emergencies as Challenges to the Impartiality of Public Law Ioannis A. Tassopoulos

Abstract The hard cases of emergency are not isolated episodes. Rather, they spring out of deep political conflicts. Their resolution is the measure of endurance of democratic Constitutions, which are tested on two grounds: the ability of the state to take the necessary measures, and of the political system to deliberate and resolve the political conflicts according to the rules of the game. Constitutional politics operate on a rule of reciprocal impartiality—both procedural and substantive (respect for civil rights). Greece’s rich constitutional experience with political emergencies offers an excellent case study of these problems.

1 Introduction Alexander Hamilton wrote in The Federalist Papers: ‘it seems to have been reserved to the people of this country […] to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force’.1 This brings to mind Aristotle’s analysis of the causes of change: ‘nature, necessity, and chance, with the addition of intelligence [nous] […]’.2 According to Aristotle’s conception of practical reason, the answer to the question how we shall act must be the outcome of deliberation based on the exercise of prudence, in face of a(n) (un-)certain situation.3 The Rule of Law adds to the Aristotelian framework of practical reason the requirement that the exercise of political power, to be legally right, must be justifiable as public law. In a 1 Alexander Hamilton, John Jay and James Madison, The Federalist Papers, n. 1 (Random House 1964) 3. 2 Aristotle, Nicomachean Ethics (trs. H. Rackham, Harvard UP 1982) 134–135. 3 David Wiggins, Needs, Values, Truth (3rd edn, OUP 1998) 215, 234–236.

I. A. Tassopoulos (B) National and Kapodistrian University of Athens, Athens, Greece e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_6

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nutshell, it must be impartial4 and neutral, reasonable,5 and in the public interest. In that sense, constitutional law is political law, which strives to become public law, without ignoring or disregarding its political origin and source.6 Political emergency brings forth in a particularly forceful manner the political essence of constitutional law, creating circumstances of necessity, which challenge the regularly established processes of constitutional decisionmaking. Facing such situations, practical reason is needed to analyze what is reasonable and rational to do under the circumstances. However, the final decision and political choice must be constitutionally defensible according to the principles of public law.7 Defending the constitutional continuity, stability and normativity of practical reason, in face of an emergency, is much more fruitful than the attempt to discuss political emergency in the traditional framework of legal formalism, applying rules of preexisting fact-patterns to cases falling under them. The hardest cases of emergency are those which arise out of fundamental political conflicts,8 which put great pressure on the rules of the political game. Substantive disagreement sets the tone, eroding consensus over constitutional basics. The challenge is to resolve the political conflict by democratic means, while preventing the dangers from an emergency to materialize. The Greek constitutional experience, discussed in this work, shows that a serious impediment in dealing with hard cases of emergency comes from the notion of constituent power, which disregards the normative requirements of government by consent.

2 The Impartiality of the Rules of the Game The rules of the game, authorizing and legitimizing power, make possible the exercise of legitimate authority and therefore the compliance of the defeated party. But at the same time, they constrain the victor not to violate them, because this would gradually erode the basis of (his) legitimacy (as well). In this regard, the procedural impartiality of the rules of the game becomes constitutive of constitutional politics. The impartiality of the rules of the game is a condition for empowerment of authority 4 Cf. Pierre Rosanvallon, Democratic Legitimacy - Impartiality, Reflexivity, Proximity (trans. Arthur

Goldhammer) (Princeton UP 2011) 104–107 (discussing democratic impartiality). Moshe Cohen-Eliya and Iddo Porat, ‘American balancing and German proportionality: The historical origins’ (2010) I.Con 263, 267. 6 Ioannis Tassopoulos, Popular Sovereignty and the Challenge of Impartiality (Kritiki 2014) 79 (in Greek). Richard Fallon, ‘Legitimacy and the Constitution’ (2005) 118 Harv.L.Rev. 1787, 1791 (‘Judgments of legal, sociological, and moral legitimacy all reflect concerns with the necessary, sufficient, or morally justifiable conditions for the exercise of governmental authority’). 7 Oren Gross and Fionnuala Ni Aolain, Law in Times of Crisis—Emergency Powers in Theory and Practice (Cambridge UP 2006) 155 (emphasizing ‘the need to give reasons ex post’). 8 Fundamental political conflicts, in the context of Greek history, are those associated with divisive cleavages; e.g. Greece’s participation or neutrality in World War I; the Greek Civil War during the Cold War; the dilemmas associated with the Greek Crisis, regarding relations with Europe etc. (discussed below). 5 Cf.

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and for government by consent. As Gavison has argued ‘All constitutions must have a rules-of-the-game part, which structures, legitimates, and facilitates all organs of government. […] What is special about the rules-of-the-game part is that most of its provisions are neutral. […] The neutrality of the rules of the game is, of course, not accidental. It is what makes them a strong source of legitimacy, especially in divided societies’.9 In any form (rigid or not), the Constitution is the entrenched rules of the game for resolving the conundrum of pluralism and discord. In Greece, the rigid Constitution has always been the legal code which guarantees the rules of politics and the power of the people to establish government by consent and to exercise the right of self-government by participating in unbiased, multiparty parliamentary elections, on universal suffrage (since 1844, and constitutionally guaranteed since 1864, establishing Greece’s long tradition with elections). This is the most salient feature of the country’s constitutional identity. The rules of the game aim at establishing political unity in the form of constitutional regularity, which achieves political change under conditions of constitutional continuity. A fair and impartial procedural sequence clearly delimited and scheduled, which continues uninterrupted, empowering the people to express freely and safely their personal will, is strictly opposed to violent force and coercion as a means of political change. The interplay between consent derived out of the political process and disagreement on political values, substantive issues of justice and choices about the political direction of society depends for its survival on the exercise of civil rights, which enable the people to form and express their opinion, and to participate in politics collectively, through associations and political parties. The political process itself is not immune from challenge. Indeed, universal suffrage has been a divisive issue, and a right obtained through revolutionary agitation (1848), although not in Greece, where the easy acceptance of universal suffrage on broad consensus and without resistance remains an interpretive riddle. In most cases, challenging the political process is intertwined with substantive political disputes; they go together. For this reason, subversive advocacy, i.e. argumentation in favor of the use of revolutionary violence for the overthrow of the constitutional system, may have a rational element, if it points out the inefficiency of the political process, providing the impetus and the incentive to change and adapt, contributing to a more inclusive constitutionalism, which takes into account the legitimate interests and rights of political minorities.10 But of course, subversive advocacy in the form of protest must be clearly distinguished from the actual undertaking of the overthrow of government. The situation is further complicated by the passionate character of political discord. It is however the prevailing doctrine that suppressing political enthusiasm backfires. It is therefore preferable on consequentialist grounds, and right in principle as a matter of dignity, 9 Ruth

Gavison, ‘Legislatures and the Phases and Components of Constitutionalism’ in Richard Bauman and Tsvi Kahana (eds), The Least Examined Branch—The Role of Legislatures in the Constitutional State (Cambridge UP 2006)198, 205. 10 Ioannis Tassopoulos, The Constitutional Problem of Subversive Advocacy in the United States of America and Greece (Ant. N. Sakkoulas 1993) 58.

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to let people speak out themselves freely, no matter what they want to say, regarding their common political destiny. This is better established in the US,11 but it is accepted in Europe as well, where the European Court of Human Rights found that: ‘[E]ven though some of the passages from the poems seem very aggressive in tone and to call for the use of violence, the Court considers that the fact that they were artistic in nature and of limited impact made them less a call to an uprising than an expression of deep distress in the face of a difficult political situation’.12 The right to withdraw consent, expressis verbis, is crucial in a regime of popular sovereignty, provided that it does not create a clear and present danger for the compelling interests of the state. Respect for rights is the crucial feature of the reciprocity of the rules of the game. Respect for rights, as a matter of human dignity and as a type of legal discourse in quest of a common denominator for the achievement of reciprocal political consensus, is crucial to maintain and stabilize the equilibrium between process and substance, in constitutional politics. The dialogue on rights is undertaken, both socially and institutionally, between courts, legislatures and other national or supranational authorities. Deliberation between persons who are capable for practical reason in the context of collective decision-making is the fundamental presumption of democracy, which justifies the counts of numbers, i.e. the principle of majority; and not vice versa.13 Much of constitutionalism’s difficulty with necessity, exception and protection of democracy comes from problematic, if not fallacious, reasoning (1) about the extreme relativism and subjectivity of the decision to declare an emergency (see below Sect. 9); and (2) over the factual nature of constituent power, legitimizing any effective elimination and replacement of a Constitution as legally valid, regardless of how seizure of power had occurred (see below Sect. 7). Next follows Greece’s constitutional experience with emergencies and exceptions, in quest of constitutional legitimacy.14

3 Emergency as a Limitation of Power: The Introduction of Parliamentarianism in Greece The first case to discuss is the introduction of parliamentarianism in Greece. We may have the tendency to think of emergency as a disruption of legality. But emergency tends to restrict power by limiting the occasions of its exercise, i.e. by rendering it rare and infrequent.

11 Brandenburg

v. Ohio 395 U.S. 444 (1969) at 447. v. Turkey App no. 23168/94 (ECtHR, 8 July 1999) para 52. 13 Tassopoulos (n. 6) 223, 234. 14 Aristovoulos Manessis, ‘L’évolution des institutions politiques de la Grèce’ (1985) Les Temps Modernes 772. 12 Karata¸s

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In Greece, under the Constitution of 1864, this limiting function of emergency was crucial for maintaining the sensitive equilibrium among the institutional arrangements for the appointment of the prime minister, the dismissal of government, and the dissolution of parliament. Article 31 of the Greek Constitution (GRC) of 1864 provided laconically: ‘The king appoints and dismisses his ministers’. This language survived identical in fundamentally different Constitutions. The earlier monarchical Constitution of 1844 also contained such a provision (Article 24). By contrast, the Constitution of 1864 introduced the principle of popular sovereignty. How did the change of the regime, from monarchy to democracy, affect the meaning of the provision? The dilemma was between parliamentarianism and a system of double confidence, where the government needed both the confidence of the king and of Parliament to survive in power. Article 31 of the 1864 Constitution, was interpreted to provide a royal prerogative, in exceptional circumstances, to disagree with the prime minister and to force him to resign, and to call elections to resolve the dispute. The catalyst to trigger the royal prerogative was the existence of emergency,15 marking the provision’s change of meaning, following the elimination of the Monarchical Constitution of 1844 and its replacement with the Democratic Constitution of 1864. In the logical course of events, once recognized as the regular center of political power, Parliament was bound to control the selection of the prime minister, making it obligatory for the king to appoint as prime minister the person supported by parliamentary majority. This logical extension of parliamentary supremacy from the vote of confidence, to the prime minister’s appointment, was not easily swallowed by king George I. He preferred, for a decade following 1864, the Orleanist reading of the Constitution, choosing, appointing and dismissing prime ministers of his choice. This led to a whole scale political conflict, which ended with the introduction of parliamentarianism in Greece. In summary, the pieces of the puzzle are the following: The protagonists of the conflict were basically three: King George I; the traditional politicians, supporting the royalist reading of Article 31 GRC 1864; and the radical reformers, who argued for the introduction of parliamentarianism.16 Although the king was certainly closer to the former, it seems that he had an even more ‘ambitious’ agenda, aiming at a revision of the Constitution of 1864, with the introduction of a second chamber of Parliament, a Senate, which, in the absence of a native aristocracy, would consist of representatives from a newly emerging social class of wealthy Greek capitalists, bringing capital into the country from the Greek diaspora. The king’s plan unravelled in connection with a major investment by an international consortium of Italian, French and Greek interests, for the exploitation of the mines of Lavrion, in Attica, close to Athens, in 1871. The project did not work out as planned, and as a result, a major diplomatic, political and financial crisis erupted, involving even

15 Eve Mavromoustakou, ‘The Declared Confidence weighed by the sources’ in K Aroni-Tsichli and L Trycha (eds), Charilaos Trikoupis and his Era (Papazisis 2000) 175, 193 n. 29 (in Greek). 16 Gunnar Herring, Die Politischen Parteien in Griechenland, vol 1 (MIET 2004) 448–449, 471, 492 (in Greek).

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threats of Gunboat diplomacy, over an imminent intervention of the French Navy in Piraeus.17 A serious impediment to the king’s plans came from the insistence of the English Ambassador on the king’s respect for the Constitution and against any coup d’état.18 But the Constitution of 1864 provided (Article 107) (1) that there could be no revision of the Constitution in the next 10 years following its enactment, and (2) that there were material limits to its change; the Constitution could be amended only with regard to its non-fundamental provisions. As a result, the royal plans were bound to fail, among other reasons, owing to the Constitution’s entrenchment. More serious than the king’s plans, was the conflict between the king and his supporters against the reformers, who were in favor of English-type parliamentarianism.19 The king’s abuse of his prerogatives, e.g. appointing in 1872 as Prime Minister the leader of a minority party, although there was a clear parliamentary majority,20 resulted in the formation in 1872 of the so-called Fifth Party, with the explicit agenda of introducing parliamentarianism in the country as an indispensable means for more general modernization. The leader of the party was the most important reformer of 19th century Greece, Charilaos Trikoupis. As the king was continuing his total disregard of parliamentary majorities, the politico-constitutional conflict reached its peak in 1874, when the king appointed D. Voulgaris as Prime Minister, who was infamous for his rigged elections and for his electoral violence. Voulgaris confirmed his bad reputation holding elections the way he knew… A few days after the elections, Trikoupis published an article in a newspaper accusing the Throne’s anti-parliamentary tactics for the dysfunctional constitutional and political life of the country. Trikoupis implied that unless there was a change in the way the system was running, there would be no other road left for the People but to revolt. Voulgaris, the Prime Minister, took it as a provocation and an emergency situation, deriving such a threat out of Trikoupis’s publication. Voulgaris returned to Athens on a Gunboat, sent the army on the streets of Athens and had the Public Prosecutor arrest Trikoupis with serious charges carrying capital punishment as sanction. However, the judiciary (in council), both in first degree and on appeal, in a strong show of judicial independence, dropped Trikoupis’s charges, who, as a result, did not stand on trial. In the next phase of the crisis, the situation worsened even more, because that time it involved undisguised unconstitutional actions on the part of Voulgaris, violating the Constitution’s quorum requirements for Parliament. These violations extended over a period of months, in the course of which Voulgaris deployed the army to exert pressure on parliamentarians, falsified the records to misrepresent the participation of deputies in the meetings etc.21 17 George

Dertilis, History of the Greek State 1830–1920, vol 1 (Estia 2009) 538–539, 557 (in Greek). 18 Cf. Herring (n. 16) 491–492. 19 Ibid., 471. 20 Ibid., 487. 21 Ibid., 516–517, 521–522.

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The reaction to all this was unprecedented. The country was on the brink of insurrection. Twenty newspapers of Athens addressed the people, and the names of the deputies involved in Voulgaris’s actions were written on columns, following the similar ancient Greek custom for traitors.22 Showing flexibility and adaptability, the king’s attitude switched in time and in April 1875 he appointed Trikoupis as Prime Minister! From 1875 until approximately the end of the century, the first two-party system of government consolidated parliamentary democracy in the country. The constitutional crisis of 1875 makes clear that the transition from monarchy under the Constitution of 1844 to popular sovereignty under the Constitution of 1864 changed the meaning of the phrase ‘The king appoints and dismisses his ministers’. In the course of the struggle, which led to parliamentarianism’s victory, situations of emergency were defined in terms of contested, allegedly unconstitutional, actions of the political actors involved. Constitutional entrenchment was relied on to secure the political victory of the supporters of parliamentary government in a conflict marked by various episodes of emergency. The resolution of the crisis removed the source of emergency, stopped the episodes of emergency and restored normality. In the post-1875 constitutional order, at the normative level, emergency became ideally the key criterion for the transformation of the king’s power to create and dismiss his ministers into a prerogative designed to operate as a guarantee in a system of checks and balances, whenever the king thought that an issue was so critical that it would be appropriate to bring the matter to the sovereign people, through the dissolution of parliament and elections.23

4 The Enclaves of Royal Power. Emergency over Greece’s Participation in World War I, and the National Schism The next example of the interplay between emergency and entrenchment did not have a happy end. It ushered the most severe crisis of the 1st half of the 20th century in Greece, known as the National Schism. On the surface, the conflict concerned the participation of Greece in the war on the side of Entente, as Prime Minister El. Venizelos argued, or the neutrality of the country, as the pro-German king Constantine desired. At the political and constitutional level, the question was who decides about emergency, once the king has exercised his royal prerogative to bring the matter to the people, and the people voted against the king’s position by reelecting the Prime Minister. In 1915, it had become crystal clear to Venizelos that there was only one way that the dispute could be resolved: through elections. Venizelos did not put in question the royal prerogative to force him to resign and to dissolve Parliament, although he deeply resented the fact that the king appointed the leader of the opposition to prepare the elections, which took place many months later, violating constitutional 22 Ibid., 23 Ibid.,

524–525. 535.

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deontology and impartiality. Things changed dramatically when the king insisted on his position, notwithstanding Venizelos’s reelection. Can the king continue to resist the Prime Minister’s position, without subverting the principle of popular sovereignty and overthrowing the regime, and reintroducing the monarchical principle? Is, finally, the king entitled to refuse to comply, in the name of a watertight enclave of royal power over national issues of defense and foreign relations? Venizelos was adamant that the king violated the Constitution and subverted its democratic identity.24 Both on the surface and at a deeper level, the conflict over Greece’s participation in the war was one of emergency. On the one hand, Venizelos was extremely lucid and convincing about the catastrophic consequences of Greece’s neutrality in the war, at the time when Bulgaria and Turkey had already aligned with the Central Powers. Greece would not have another opportunity to take advantage of the imminent dissolution of the Ottoman Empire. Beyond mere diplomatic advantage what was at stake was nothing less that the quest of national integration, bringing within national borders the various Greek populations of Minor Asia who were threatened as nationalist sentiments replaced the disintegrating and collapsing multi-national Empires. On the other hand, there was the more conservative part of society which feared the war and had second thoughts over the cost of war in their personal lives, and opted for peace. In a way, the dilemma was tragic with legitimate arguments on both sides. This was the context of the National Schism, which, incidentally, had been experienced primarily as a constitutional struggle about the identity of the regime (democracy or “monarchy”), as much as a national crisis.25 Here again it is obvious that emergency springs out of a deep political conflict, whose volatile potential erupts and produces several episodes of emergency. In the course of the various phases of the National Schism, in 1915–1917, in 1917–1924, and in 1932–1935, the episodes of emergency succeeded one another, being of unimaginable scale: Separation of the country into two different states in 1916, when the king refused to comply with the mandate of the people who reelected Venizelos in 1915; intervention of the Entente forces in Athens, resulting in the dethronement of King Constantine; violence between political opponents escalating at the level of civil war; abuse of the coercive apparatus of the state by those in power against their political rivals; various attempts of coup d’état, eroding and destabilizing the long democratic tradition of the country; elections in 1920, lost by Venizelos, which served as a catalyst for the collapse of the Asia Minor military campaign, and the influx of about a million and a half of refugees in the country in 1923 etc. In the course of these events the state of emergency was transformed at the normative level as well. The Constitution of 1864 did not provide for the state of exception.

24 Ioannis Tassopoulos, ‘The Experiment of Inclusive Constitutionalism, 1909–1932’ in P Kitromilides (ed), Eleftherios Venizelos—The Trials of Statemanship (Edinburgh UP 2006) 260. 25 George Mavrogordatos, Stillborn Republic—Social Coalitions and Party Strategies in Greece 1922–1936 (University of California Press 1983) 280–288.

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The constitutional amendment of 1911 accommodated it for the sake of external security under strict legislative guarantees.26 During the Balkan Wars of 1912–13, it was applied. This happened again between 1917 and 1923. In 1925, Th. Pangalos used the state of siege to impose his dictatorship. In 1935, it was also employed for internal causes as well.27 Moreover, the executive usurped legislative power, enacting ‘laws of necessity’, circumventing Parliament.28 In addition, legislative encroachments on civil liberties created crimes of opinion, outlawing disputes of the republican form of the regime (1924), or anti-communist legislation (Idionym law 1929). The episodes of emergency destabilized the Constitution. The law of necessity and the limitation of civil liberties were a slippery slope, undermining the constitutional order, delegitimizing the rules of the game. But, interestingly enough, this conflict did not undermine the more profound fundamental commitment on elections to the extent that the dictatorships did not represent any deeper challenge in favor of a totalitarian transformation of society. Greece’s constitutional system experienced a crisis of legitimacy but nothing similar to the crisis of constitutional identity involved in totalitarian threats. More akin to this type of regime was the Dictatorship of the 4th of August 1936, imposed by Ioannis Metaxas. This however depended on a double hierarchy, with a pro-English king, who controlled the army and who placed a brake on the most extravagant tendencies of the regime.

5 The Civil War, the Emergency Legislation, and the Marginal (Parallel) Constitution The 3 decades between 1944 and 1974 are very rich in terms of Greece’s experimentation with emergency, exception and constitutional entrenchment. Indeed, this complex relation has been in the heart of the political conflict of the age. When Greece was going to be liberated from the occupation of the Nazis, in 1944, a Conference in Lebanon took place in preparation for the next day in the political life of the country, with the resolution of the issue of the head of the state (royalist democracy or republic) and the participation of the left in government and in the preparation of a new Constitution. However, in December 1944, the Civil War erupted in Athens. With Churchill’s personal engagement, the Communists did not seize power. In 1945, a renewed effort to arrive at a peaceful solution failed again and between 1946 and 1949, Civil War engulfed the country. During the Civil War no dictatorship was imposed; however, a state of siege was enacted in 1948, as well as various extraordinary legislative measures, punishing the ‘communist insurrection’ with heavy sanctions.

26 Nicos Alivizatos, Les institutions politiques de la Grèce à travers les crises 1922–1974 (Themelio

1983) 39–44 (in Greek). 46, 51. 28 Ibid., 65, 81. 27 Ibid.,

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The crucial feature of the anti-communist measures of the Civil War was their temporary character, precisely because they were extraordinary. Their validity was not supposed to exceed the time of the ‘insurrection’. Consequently, under the Constitution of 1952, the anti-communist measures of the Civil War were preserved, with the explicit recognition that they formed a body of law of exception, marginal and parallel to the Constitution, i.e. a ‘Para-Constitution’, as it came to be known. For this reason, Parliament could abolish this body of law, restoring the integrity of the Constitution by ordinary legislation, i.e. by statute. The political conflict of the 1950s– 1960s regarded precisely the fortune of this ‘Para-Constitution’.29 In the climate of the Cold War, the most conservative political forces, with the support of the Throne, invoked the risk of a criminal conspiracy covered behind the veil of a political party (insisting on the illegality of the Communist Party of Greece, imposed in 1947, during the Civil War). As a result, the Civil War was not declared officially terminated by statute, while the courts refused to take judicial notice of the objective fact that the Civil War had already ended. Hence, the law of exception survived, despite the political pressure of Liberal Centrists to restore the Rule of Law and the integrity of the Constitution, by abolishing the Para-Constitution. In 1963, in keeping with the trend of democratization of the period, the conservative party tried to achieve a compromise by incorporating, and thereby entrenching, the most critical aspects of the emergency measures into the Constitution, by providing that a Constitutional Court could dissolve anti-democratic and anticonstitutional political parties. The reaction to this normalization of the exception and to the dilution of the traditional principles of political liberalism, as embedded in Greek constitutionalism, marked the deeper political conflict which thoroughly undermined the legitimacy of post-war constitutional order (i.e. the Constitution of 1952 with its Para-Constitution), leading finally to the Dictatorship of the Colonels, who invoked discredited parliamentarianism.

6 Restoration of Democracy: Respect for the Rules of the Game, Delegitimizing Exception The restoration of democracy in Greece, on the 23rd of July 1974, took place under conditions of extreme emergency. On the 15th of July 1974, the Military Junta in Athens attempted to overthrow President Makarios of Cyprus. Turkey invaded 29 Ibid., 536, 542. The Civil War did not lead to the imposition of dictatorship in Greece. The anticommunist legislation of the Civil War was recognized to be exceptional, inconsistent with the liberal principles of the Constitution and justified only during the emergency. From the perspective of the Dyzenhaus-Gross debate (Victor Ramraj, ‘No doctrine more pernicious? Emergencies and the limits of legality’, in V. Ramraj (ed), Emergencies and the Limits of Legality (Cambridge UP 2008) 7–9), the extra-constitutional provisions of the emergency measures, formally speaking, seem to occupy the middle ground between extra-legality and legality. This happened under the extreme deference of the courts, which accepted the creation of a ‘black hole’ in the Rule of Law (David Dyzenhaus, The Constitution of Law (Cambridge UP 2006) 160, 183).

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Cyprus, on the 20th of July 1974, occupying approximately 37% of the territory, invoking its capacity of a Guarantor Power. On the same day, Greece mobilized. Greece’s intervention in Cyprus against the Turkish invasion would have provoked immediate war between Greece and Turkey, not only in Cyprus, but in the Aegean and on the land border. In the night from the 23rd to the 24th of July 1974, the dictatorship collapsed, and ex-Prime Minister Caramanlis was called from Paris. With the country on the brink of war and the acceleration of political developments, the citizens of Athens made clear, in a delirium of political enthusiasm, that the political presence of the people could hardly be ignored. Meanwhile, supporters of the dictatorship were agitating, in an effort to reconquer power.30 Reactions to emergencies are uneven; full of contradictions and compromises. In Greece, after 1974, they developed at various layers, including the following three, which formed together a peculiar combination of continuity and change: (1) The Council of State (CS) recognized that the National Unity Government which succeeded the Dictatorship was a de facto authority, exercising constituent power, whose Constituent Acts were legally valid. With this holding (CS 3700/1974 in plenum)31 a long line of decisions continued, recognizing the de facto government on the basis of the doctrine that an established revolution creates law (i.e. a new legal order), on the tacit consent of the people subject to it.32 (2) Fundamental for the inclusive and pluralist character of the new constitutional order was the Legislative Decree of September 23, 1974, which legalized the Communist Party of Greece, and abolishing the Para-Constitution. It was a new beginning, closing the period of exceptions and exclusions, restoring the integrity of constitutional democracy and of the Rule of Law in Greece, and establishing a fundamental consensus on the inviolability of the Rules of the Game. (3) However, Constituent Act of October 4, 1974 provided that the new Parliament, which was going to be elected in the elections of November 17, 1974, would not be a Constituent Assembly, but a Revisionary one, having the competence of amending the Constitution of 1952, in all but one respect: the form of the regime as presidential or royal democracy, which was going to be resolved by referendum. Indeed, on December 8, 1974, 69.2% of the People voted for the republic, abolishing the monarchy which has been the catalyst of all the political crises of the country. The rejection of a constituent assembly was a move of prudence in favor of constitutional continuity. Once again, a de facto constituent power, at a moment of crisis, opted to reconnect with the past, “amending” the old constitutional order, rather than eliminating the previous Constitution to replace it with a new one. Continuity closed the door to the unexpected, which could have unpredictable consequences in a time of crisis.33

30 Nicos

Alivizatos, The Constitution and its Enemies (Polis 2011) 489–499 (in Greek). Drossos, An Essay on Greek Constitutional Theory (Ant. N. Sakkoulas 1996) 299 (in

31 Yannis

Greek). 32 Ibid., 301, 303. 33 George Kassimatis, The Transition to Democracy and the Constitution of 1975 (Foundation of Greek Parliament 2005) 29–31 (in Greek).

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The national emergency implementing the transition to democracy without war and bloodshed (but also without an agreement with the dictators offering them immunity from prosecution), under conditions of sociopolitical consensus, explains this strange mélange of continuity and change. The legalization of the Communist Party, combined with the abolition of the Constitution’s rightwing flank, i.e. the throne as a reactionary and anti-democratic center of power, bracketed the period of crises as an anomalous parenthesis,34 before returning to constitutional normality; to the legal sources of ascending constitutionalism, in an effort to restore regularity: 1864 (popular sovereignty, civil rights, universal suffrage), 1875 (parliamentary system), 1911 (Rule of Law), which, in principle, had survived in the Constitution of 1952, notwithstanding the Civil War. The sequence of crisis, emergency, and exception conceptualized as a parenthesis, is not a way of speaking, a metaphor devoid of legal meaning. On January 18, 1975, the 5th Revisionary (i.e. not Constituent) Assembly issued Resolution ´declaring that ‘Democracy, legally speaking, was never dissolved’. The mutiny of the colonels from 1967 to 1974 was ‘a coup d’état’ and the governments, ensuing out of it, were ‘Governments of violence’. This declaration abolished the old doctrine that a revolution which prevails establishes a new legitimate constitutional order replacing it with the doctrine of ‘anomalous parenthesis’, reflected in Article 120 para 3 of the GRC: ‘Usurpation, in any way whatsoever, of popular sovereignty and of powers deriving therefrom shall be prosecuted upon restoration of the lawful authority; the limitation from which punishment for the crime is barred shall begin as of the restoration of lawful authority’.35 Article 48 (state of siege) and 44 para 1 (acts of legislative content) GRC (1975 as amended in 1986) codify the Greek experience with emergency and the law of necessity.36 The model of accommodation of 1975/1986 rests squarely on 4 pillars: (i) the narrow and strict specification of the state of siege, in case of war or mobilization owing to external dangers or an imminent threat against national security, as well as in case of an armed coup aiming to overthrow the democratic regime, for a limited time (15 days), under the guarantee of Parliament, which adopts the initial resolution of emergency by a three-fifths majority of the total number of Parliament’s members; (ii) the rather broad and bold constitutionalization of the law of necessity, i.e. of legislative power of the executive without delegation, in the form of acts of legislative content issued by the President of the Republic on the Cabinet’s proposal, in cases of urgent and unforeseen necessity (nonjusticiable and nonreviewable, according to current jurisprudence), which, shortly, must be submitted to parliamentary sanction (normally 40 days); (iii) the entrenchment of Article 29 para 1 GRC, providing, according to the prevailing interpretation, that it is not possible to outlaw a political party in Greece, leaving therefore no room for conceptions of militant democracy; 34 Dionysis Spinellis, ‘The Right of Resistance and Penal Law’ (in Greek) http://www.kostasbeys. gr/articles.php?s=3&mid=1096&mnu=1&id=24181, accessed 17 June 2016. 35 Kassimatis (n. 33) 38–39. 36 Cf. Gross and Aolain (n. 7) 26 and Clinton Rossiter, Constitutional Dictatorship (Greenwood Press 1979) 79.

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(iv) vigilance against encroachment on political activities by legislation, which could lead back to the slippery slope of the interwar years (with antiterrorist measures being the most contested part of post-1974 security measures).

7 Emergency Powers and Constitutional Entrenchment: The Irreducible Tension Between the Voluntarism of Constituent Power and Government by Consent The transition to democracy in 1974, under the pressure of necessity to avoid war and to prevent further disasters, changed in the most profound way the relation between emergency and constitutional entrenchment. First, emergency has been demystified of the normative magic of revolutionary constituent power, i.e. of the genesis of the normative out of the factual. At the root of this metamorphosis of the worm into a butterfly is the attribution of the national will to the dominant political power, which succeeds in imposing its authority on the populace, on the basis of tacit consent. Although Sieyès admitted that the nation is made out of the unison of individual wills, arguing that ‘Dans la première on conçoit un nombre plus ou moins considérable d’individus isolés qui veulent se réunir. […] le jeu des volontés individuelles. L’association est leur ouvrage; elles sont l’origine de tout pouvoir’,37 he personified the nation: ‘La nation existe avant tout, elle est l’origine de tout. Sa volonté est toujours légale, elle est la loi elle-même […] Dans chaque partie la constitution n’est pas l’ouvrage du pouvoir constitué, mais du pouvoir constituant’.38 According to Sieyès the will of the nation is the origin of legality: ‘La volonté nationale, au contraire, n’a besoin que de sa réalité pour être toujours légale, elle est l’origine de toute légalité’.39 The crucial move here is that the political unity of the nation is taken for granted.40 It is assumed as already existing, whereas this is the source of the problem of government by consent and the challenge of constitutionalism: how to arrive at political unity without violence, or authoritarian homogeneity at the cost of democratic pluralism. The problem here is the self-referential conception of popular sovereignty. ‘The object of popular sovereignty is in principle, not the will of the people per se, in any self-referential way, but the res publica and public

37 E. J. Sieyès, Qu’est-ce que le tiers État (Boucher 2002) 51 http://www.leboucher.com/pdf/sieyes/ tiers.pdf, accessed 17 June 2016. 38 Ibid., 53. 39 Ibid., 54. 40 Carl Schmitt, Dictatorship (Polity 2014) 100 (‘Rousseau referred to the totality that issues from the social contract as a common ‘I’ with its own life and will’).

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power’.41 Popular sovereignty is a qualification of state sovereignty.42 Popular will reflects public opinion and the regular functioning of the rules of the game is necessary for its formation and expression (Article 52 GRC). The missing point in Sieyès’s analysis is Aristotle’s admonition, on which Greek constitutional theory has rightly focused: ‘For the people become a monarch, and is many in one; and the many have the power in their hands, not as individuals, but collectively […] And the people, who is now a monarch, and no longer under the control of law, seeks to exercise monarchical sway, and grows into a despot’.43 The notion of constituent power belongs to the pre-history of constitutionalism, being adequate for the negative phase of opposition against a tyrant or a despot (external or internal), when the people were fighting for political independence and self-determination; but is hardly adequate for the resolution of deep political disagreements which lie at the heart of emergencies.44 An emergency is a political situation (open to legal characterization); whereas constituent power is a legal concept to the extent that its exercise creates the normative legal order. The excessive political voluntarism of the theory of constituent power opens the leeway to answer such dilemmas with the sword (the ‘ineliminabile funzione unificatrice propria della sovranità’, according to Mortati).45 However, the only legitimate reaction of a mature democracy in handling the crisis is collective exercise of practical reason, public deliberation and political prudence, within the contours of functioning and efficacious democratic rules of the game. The collective self-determination of a historical society organized in the form of a nation-state; preservation of the constitutional subject of practical reason, are the ultimate goals of political unity. In a liberal democracy, the essential conditions of political unity are rational exercise of authority, which justifies challenging authority; consensus on the rules of the game; and respect for human dignity, fundamental rights and the value of pluralism.

8 The Emergencies of the ‘New Age’ Let us call the ‘New Age’ the time following the economic crisis of 2008. Since then many serious emergency situations directly related to constitutional entrenchment and change occurred in Greece. The first, in December 2008, occurred when 41 Ioannis Tassopoulos, ‘On the Jacobin Dimension of Greek Constitutional Tradition’ in A Triandafyllidou and others (eds), The Greek Crisis and European Modernity (Palgrave 2013) 76, 74–75, 81. 42 Schmitt Dictatorship (n. 40) 122 (discussing ‘the doctrine of the pouvoir constituant as an attempt to transform the people as such into an organ of the state’). 43 Aristotle, The Politics (trs. Benjamin Jowett, Clarendon 1885) 117 https://oll.libertyfund.org/tit les/aristotle-the-politics-vol-1--5 (Facsimile PDF), accessed 23 May 2020, http://classics.mit.edu/ Aristotle/politics.html, accessed 17 June 2016. 44 Cf. Jeremy Waldron, Law and Disagreement (Oxford 1999) 256–257 (discussing ‘constitutional crisis’ and the ‘normative significance’ of political events). 45 Costantino Mortati, Istituzioni di diritto pubblico (CEDAM 1991) 102.

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a policeman shot a 13-year-old boy. Mass demonstrations of students and other protesters, riots and fires, lasting over a month, disrupted public order seriously, inciting a debate whether emergency measures were appropriate. More than the language of Article 48 GRC, which does not provide for the state of emergency on such occasions, Greece’s post-dictatorship political culture is extremely reluctant to pass the threshold of emergency, e.g. legitimizing the intervention of the army to restore public order. Remarkably, another crisis started unravelling, covered by the dailies of Athens in parallel to the violence of December 2008: The Sovereign debt. At the beginning, one could hardly focus on these reports, which, however, described pretty accurately what was going to happen in May 2010! The case of the economic crisis revealed, in Greece, a new dimension of emergencies: the threat of underestimation, inertia, imprudence and lack of practical reason.46 Can the Constitution offer a remedy for the lack of statesmanship? The executive failed to handle the crisis not by overreacting, as is usually the concern, but by omission, i.e. by not taking the necessary measures between the end of 2008 and the beginning of 2010. The result has been the extremely intense and thorough European and International (IMF) economic control in May 2010. A terrible tragedy marked the initial stages of the protests against the austerity measures, adding up to the fresh memories of the 2008 riots: during the general strike against the 1st Memorandum of Understanding for Greece’s bail out, three young bank employees (among them a woman carrying a baby) died, when the bank was set on fire by protesters. The courts, as is well known, ratified the Memoranda reducing dramatically salaries and pensions, and cutting back the welfare state. The courts invoked the law of necessity, and the paramount national interest of preventing the official default of the country. The Parliament, the Voule, saw its legislative function severely restricted by the excessive recourse of the executive to acts of legislative content (Article 44 para 1 GRC, autonomous legislation of the executive). The period between the two elections of 2012 (May–June) threatened Greece not only with exit from the Eurozone, and potentially from the European Union, but, more dramatically, with the dissolution of the constitutional order. There has been discussion about the possibility of exercising constituent power, for a new Constitution, eliminating the existing one. The elections of June 2012 gave the solution, as the pro-European parties won the elections, and Syriza replaced the Socialists of PASOK as the second pole in Greece’s traditional bipartisan political system, providing incentives to maintain the existing order and the established rules of the game, which had already achieved considerable legitimacy and stability.47

46 Cf. Tassopoulos (n. 6) 318, 404. To the extent that the Greek Crisis is tied to Greece’s prevailing conception of popular sovereignty (cf. Tassopoulos n. 60), i.e. to factors related to constitutional culture and design, we may say—following Sanford Levinson and Jack Balkin, ‘Constitutional Crises’ (2009) 157 U.Pa.L.Rev. 707, 729—that the inertia of 2008–2009 is a case of ‘excessive fidelity to a failing Constitution.’ 47 Xenophon Contiades and Ioannis Tassopoulos, ‘The Impact of the Financial Crisis on the Greek Constitution’ in X. Contiades (ed.), Constitutions in the Global Financial Crisis. A Comparative Analysis (Ashgate 2013) 195–218.

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Between 2009 and 2016, Greece held 5 general elections, 2 elections for the European Parliament, and 1 Referendum on July 5, 2015. The historical precedent of the elections of 1920, when Venizelos’s defeat ended up with the Minor Asia catastrophe was often mentioned, emphasizing the sense of responsibility. Emergencies may finally enhance the legitimacy of the Constitution’s political process. In the elections of January 2015, under the most severe economic and strategic crisis of Greece during the last 40 years, the Right handed power to the Left, in an impeccable manner. In July 2015, the partisans of Yes and No in the Referendum held rallies peacefully and calmly on the same day in different parts of the center of Athens, despite political polarization and constitutional objections to the procedure of the referendum. The bureaucratic and technocratic management of the crisis by the European Union is in sharp contrast to Greece’s superabundant politicization, which has rendered the political management of the crisis through consecutive elections economically onerous, but hardly avoidable for the formation of political consensus, given the democratic culture of the country. The referendum of July 5, 2015 brought into focus another very interesting aspect of the constitutional treatment of emergencies in Greece: The Constitution places on the shoulders of the Prime Minister the most important political decisions of the nation, rendering him personally responsible for them. The historical, political, moral, and eventually legal responsibility for the consequences of his or her decision is not shared at the critical moment. Obviously this concentration of authority has its pros and cons.48 In light of Greece’s political history of conflicts between the head of the state and the democratically elected prime minister, the (actual or hypothetical) dilemma of a political confrontation of the President of the Republic with the Prime Minister over the very serious objections regarding the constitutionality of the referendum49 (its question and process) would have been constitutionally quite problematic (given the weak position of the President in Greece), and politically totally counterproductive, in my opinion. This dilemma, as well that of the Prime Minister regarding the official interpretation of the vote to the vague question of the referendum, are both typical examples of the sort of political prudence required for the handling of emergencies in times of crisis. The crucial fact is that Greece’s Constitution survived the crisis, proving its resilience and preserving the consensus on the rules of the game as a condition for the achievement of (a relative and socially precarious, but nevertheless constitutional and democratic) political unity, in an effort to overcome the crisis and handle the emergencies.

48 Jack Balkin and Sanford Levinson, ‘Constitutional Dictatorship: Its Dangers and Its Design’ (2010) Faculty Scholarship Series. Paper 221, 1857, 1858. http://digitalcommons.law.yale.edu/fss_ papers/221, accessed 17 June 2106. During the Greek Crisis, the parliamentary majority played a critical role; in November 2011, following the announcement, in Cannes, of a referendum over the bailout, the socialist parliamentary majority (PASOK) voted in a vote of confidence in favor of the socialist government, on the condition that the Prime Minister (George Papandreou, PASOK) would resign from office! 49 Xenophon Contiades and Alkmene Fotiadou, The Resilience of the Constitution (Sakkoulas 2016) 171 (in Greek).

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The final crisis to be mentioned concerns the Golden Dawn trial, which started in 2015, when an antifascist musician was killed by persons, allegedly, related to the party. The surge of Neo-Nazi ideology in Greece resulted into proposals for abandoning the established constitutional interpretation of Article 29 para 1 GRC, strictly prohibiting the dissolution of political parties on the basis of the original intent of the constitutional legislator of 1975, in favor of a new functional interpretation, which would tie political parties to the normal operation of the constitutional system of the country.50 This ‘interpretive accommodation’51 would clearly bring about a disruption of substantive constitutional continuity, amounting to a constitutional change by judicial construction and, as such, it is hardly advisable.

9 Safeguarding the Impartiality of Public Law: The Role of the Legislature and the Courts Upholding the institutional capacities of practical reason in times of emergency requires a double task: On the one hand the executive must be vigilant and able to meet effectively the exigencies of the situation. This requires strong authority. In a state of emergency, the executive is ‘the queen of the party’. However, it is important to distinguish the episodes of emergency from the deep political conflicts which generate the emergency. These conflicts are the political source of the episodes of emergency. It is crucial that it be resolved according to the rules of the game, established by the liberal and democratic Constitution, without allowing the alleged emergency to abolish political deliberation. In a representative system Parliament has the primary duty of political deliberation in times of emergency, being the source of democratic legitimacy. This is why an increased majority is required to declare an emergency, providing an effective guarantee that the finding of fact regarding the existence of an emergency is not a sham, to destroy political opposition and to distort the rules of the game. The transparency of political argumentation, achieved through the clash of political opinions and freedom of speech, is necessary to make possible the emergence of consensus over the resolution of the deeper political crisis, which is the source of emergency. As a result, it is important that Parliament renew periodically its authorization for maintaining the emergency, at short intervals. An important political standard of impartiality against the abuse of the argument of emergency is that of invoking the impartial spectator, whose similar reaction, were she in one’s shoes, can play a legitimizing role. In practice, this becomes possible in systems of political cooperation and mutual political constraint, such as the EU.52

50 Charalambos Anthopoulos, ‘Political Parties and Democracy. Elements for a Reinterpretation of Article 29 para 1’ (2015) Journal of Administrative Law 157 (in Greek). 51 Gross & Aolain (n. 7) 72. 52 Cf. J. H. H. Weiler, The Constitution of Europe (Cambridge UP 1999) 336 (discussing the foundations of political legitimacy in Europe.).

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Practical deliberation of public authorities, in a constitutional system of checks and balances, involves the courts as well. Against Carl Schmitt’s ad hoc decisionism,53 the subjectivity of the political decision to declare an emergency and take adequate measures is under four constraints: (1) A finding of fact by the Executive that an emergency exists, coupled with the judgment that the only available way to tackle the crisis is the taking of emergency measures. (2) The role of Parliament vis-àvis the executive to confer democratic legitimacy to the decision.54 The political responsibility of the Executive and the Legislature in times of emergencies is to face the circumstances of the crisis in the way prescribed by Aristotle: ‘At the right time, on the right occasion, towards the right people, for the right purpose, and in the right manner’!55 (3) The guarantee of the rule of law, in the form of respect for human dignity and fundamental rights, as a matter of principle regarding the inviolability of personal autonomy, rather than one of additive and quantitative weighing of interests in welfare, with the caveat: as much as this is feasible. (4) Indeed, the constitutional standard of political action in face of emergencies is prudential, accepting neither nihilistic realism, nor utopian idealism. Unavoidably, deontological and consequentialist arguments are intertwined56 : averting the greater harm, without violating human dignity or other fundamental rights. The balancing and proportionality undertaken by the Executive and the Legislature in times of emergency must be reviewed by the courts to avoid their distortion. Crucial in this regard is the weighing of the evidence, supporting the existence of a clear and present danger of an imminent threat and proving the objectivity of the factual finding of an emergency and of the ensuing necessity. The role of judicial notice in declaring the beginning and the end of an emergency is crucial in this respect.57 True, ‘Extraordinary conditions may call for extraordinary remedies’ as Hughes CJ wrote in A.L.A. Schechter Poultry Corp. v. United States.58 However, to punish an innocent for his political opinions, just on the basis of vague and unfounded suspicions (or imagined threats) of the Executive, without any incriminating evidence other than radical ideas and political credos, is not constitutionally acceptable. Trying specific disputes and safeguarding the requirements of due process of law has always been the function of judicial office and the ultimate guarantee of personal freedom and security.59

53 Schmitt (n. 40) 14 (‘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’). 54 Cf. Gross & Aolain (n. 7) 55, 57 (discussing the role of Parliament in safeguarding the limited duration of emergency). 55 Cf. Aristotle (n. 2) 92, 93. 56 Terry Nardin, ‘Emergency logic: prudence, morality and the rule of law’ in Ramraj (n. 29) 97, 109 (‘The calculations we make in acting on the principle of beneficence are not moral. They are prudential calculations’). 57 Tassopoulos (n. 6) 414–415. 58 295 U.S. 495 (1935), at 528. 59 Cf. in this volume Liav Orgad, Roy Peled and Yoram Rabin, ‘The Law Governing the Right of Enemy Aliens’ Access to Courts (discussing the infringement on the right of ‘Enemy Aliens’ to access to the courts).

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10 Conclusion: The Two Doctrinal Pitfalls of Emergency The dense Greek experience with political crises and emergencies implicates the impartial spectator in the following way. As G. Harman notes in an essay on Adam Smith’s Impartial Spectator: ‘The “examiner and judge”60 is the agent himself or herself, viewing things from a certain perspective’. In hindsight, the criterion of a successful handling of an emergency is constitutional continuity as stability of practical reason, in the form of public law. This requires respect for the rules of the game, prohibiting the use of violence against political rivals, and preventing the reduction of politics to the grotesque relation between friend and enemy. Safeguarding the continuing ethos of constitutional impartiality in practical reason is the duty and the burden of all branches of government. For the courts, it is of utmost importance to avoid the two doctrinal pitfalls of emergency, which are ultimately interrelated: First, the failure to realize the nature of constitutionalism, based on consensus over the rules of the game and their impartiality, and on prudential prevention of reciprocal destruction in civil war, in sharp contrast to Carl Schmitt’s decisionism during emergencies. Second, the self-referential nature of popular sovereignty, whose culminating point is the doctrine of constituent power as the self-legitimization of any political force which creates right out of might by attributing its arbitrariness and audacity to the will of the people or to the nation. The rules of the game are empowering; they guarantee the right to self-government to future generations: The test of the normative stability of public law is constitutional impartiality as justification of public power under conditions of pluralism: procedural impartiality, in the form of fairness of the rules of the game, and substantive one, as respect for human dignity and fundamental rights for the democratic resolution of deep political conflicts within a common constitutional framework based on consent.

References Alivizatos N (2011) The constitution and its enemies. Polis, Athens (in Greek) Alivizatos N (1983) Les institutions politiques de la Grèce à travers les crises 1922–1974 (trans: Stavropoulou V). Themelio, Athens (in Greek) Anthopoulos C (2015) Political parties and democracy. Elements for a reinterpretation of art. 29 par. 1. J Adm Law (2):157–172 (in Greek) Aristotle (1982) Nicomachean ethics (trans: Rackham H). Harvard UP, Cambridge, MA Aristotle (1885) The Politics (trans: Jowett B). Clarendon, Oxford. https://oll.libertyfund.org/titles/ aristotle-the-politics-vol-1--5. (Facsimile PDF). Balkin J, Levinson S (2010) Constitutional dictatorship: its dangers and its design. In: Yale Faculty Scholarship Series. Paper 221, pp 1789–1866. http://digitalcommons.law.yale.edu/fss_ papers/221. Accessed 17 June 2106 Cohen-Eliya M, Porat I (2010) American balancing and German proportionality: the historical origins. I Con 8(2):263–286

60 Gilbert

Harman, Explaining Value and Other Essays in Philosophy (OUP 2000) 181, 193.

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Contiades X, Fotiadou A (2016) The resilience of the constitution. Sakkoulas, Athens-Thessaloniki (in Greek) Contiades X, Tassopoulos I (2013) The impact of the financial crisis on the Greek constitution. In: Contiades X (ed) Constitutions in the global financial crisis. A comparative analysis. Ashgate, Farnham, pp 195–218 Dertilis G (2009) History of the Greek state 1830–1920, vol 1, 5th edn. Estia, Athens (in Greek) Drossos Y (1996) An essay on Greek constitutional theory. Ant. N. Sakkoulas, Athens-Komotini (in Greek) Dyzenhaus D (2006) The constitution of law. Cambridge UP, Cambridge Fallon R (2005) Legitimacy and the constitution. Harv L Rev 118(6):1787–1853 Gavison R (2006) Legislatures and the phases and components of constitutionalism. In: Bauman R, Kahana T (eds) The least examined branch—the role of legislatures in the constitutional state. Cambridge UP, Cambridge, pp 198–213 Gross O, Ni Aolain F (2006) Law in times of crisis—emergency powers in theory and practice. Cambridge UP, Cambridge Hamilton A (1964) No. 1 General introduction. In: Earle EM (ed) Hamilton A, Jay J, Madison J, The Federalist Papers. Random House, New York, pp 3–7 Harman G (2000) Explaining value and other essays in philosophy. Oxford UP, Oxford Hering G (2004) Die Politischen Parteien in Griechenland, vol 1. MIET, Athens (in Greek) Kassimatis G (2005) The transition to democracy and the constitution of 1975. Foundation of Greek Parliament, Athens (in Greek) Levinson S, Balkin J (2009) Constitutional crises. U Pa L Rev 157(3):707–753 Manessis A (1985) L’évolution des institutions politiques de la Grèce. Les Temps Modernes 772–814 Mavrogordatos G (1983) Stillborn Republic—social coalitions and party strategies in Greece 1922– 1936. University of California Press, Berkeley Mavromoustakou E (2000) The declared confidence weighed by the sources. In: Aroni-Tsichli K, Trycha L (eds) Charilaos Trikoupis and his era. Papazisis, Athens, pp 175–200 (in Greek) Mortati C (1991) Istituzioni di diritto pubblico. CEDAM, Padova Nardin T (2008) Emergency logic: prudence, morality and the rule of law. In: Ramraj V (ed) Emergencies and the limits of legality. Cambridge UP, Cambridge, pp 97–117 Ramraj V (2008) No doctrine more pernicious? Emergencies and the limits of legality. In: Ramraj V (ed) No doctrine more pernicious? Emergencies and the limits of legality. Cambridge UP, Cambridge, pp 3–29 Rosanvallon P (2011) Democratic legitimacy - impartiality, reflexivity, proximity (trans. Arthur Goldhammer). Princeton UP, Princeton Rossiter C (1979) Constitutional dictatorship. Greenwood Press, Connecticut Schmitt C (2014) Dictatorship. Polity, Cambridge Sieyès EJ (2002) Qu’est-ce que le tiers État. Boucher, Paris. http://www.leboucher.com/pdf/sieyes/ tiers.pdf. Accessed 17 June 2016 Spinellis D (1994–1995) The right of resistance and penal law. In: Aravantinos I (ed) The right of resistance (in Greek). Available via Kostas Beys. http://www.kostasbeys.gr/articles.php?s=3& mid=1096&mnu=1&id=24181. Accessed 17 June 2016 Tassopoulos I (2014) Popular sovereignty and the challenge of impartiality. Kritiki, Athens (in Greek) Tassopoulos I (2013) On the Jacobin dimension of Greek constitutional tradition. In: Triandafyllidou A, Gropas R, Kouki H (eds) The Greek crisis and European modernity. Palgrave, London, pp 59–88 Tassopoulos I (2006) The experiment of inclusive constitutionalism 1909–1932. In: Kitromilides P (ed) Eleftherios Venizelos—the trials of statemanship. Edinburgh UP, Edinburgh, pp 251–272 Tassopoulos I (1993) The constitutional problem of subversive advocacy in the United States of America and Greece. Ant. N. Sakkoulas, Athens-Komotini Waldron J (1999) Law and disagreement. Oxford UP, Oxford Weiler JHH (1999) The constitution of Europe. Cambridge UP, Cambridge Wiggins D (1998) Needs, values, truth, 3rd edn. OUP, Oxford

Terrorism and Warfare

Introduction: Terrorism and Warfare—Extreme Conditions or the New Normal? Myriam Feinberg

Abstract Terrorism and warfare both represent violent extreme conditions par excellence and which often lead to an expressed need for a special reaction. On the other hand, terrorism seems to have become the new normal across the globe. The exception becomes the norm and the emergency becomes permanent. The problem is that permanent emergencies challenge democratic principles, such as the separation of powers: under states of emergencies, power is often concentrated in the hands of the executive. A second issue with using an exceptional framework to address both terrorism and wars is that it might undermine the constitutional protection of fundamental rights. This section examines terrorism and warfare and some of the consequences of treating them as extreme conditions on some elements of constitutionalism. The three articles offer a number of insights into the challenges faced by democratic states when they respond to security threats in the 21st century.

Terrorism and warfare both represent violent extreme conditions par excellence, which disrupt everyday life and which, therefore, often lead to an expressed need for a special reaction. States of emergency, états de siège, executive orders, and military measures are all common and justifiable responses to this kind of exceptional threat—perhaps more than financial or health crises which, while less ‘traditional’ are becoming increasingly disruptive. All these responses rely on the assumption that the threat is exceptional and requires an exceptional response for a limited time. Generally, this leads to a suspension of constitutional principles such as derogation to individual rights, as well as limits on the democratic principle of separation of power, with the executive branch being granted a prominent role. Today however, both conflicts and terrorist attacks are common occurrences and increasingly form part of our daily life. The growing number of terrorist attacks across the world and the enduring nature of conflicts prove that these threats are indeed credible and require an adequate response. Yet at the same time, their recurrence and M. Feinberg (B) International School, University of Haifa, Haifa, Israel e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_7

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length, as well as the complex frameworks that are adopted to deal with them, all question the qualification of terrorism and warfare as extreme conditions. 2016 was one of the deadliest years in the past decades from terrorist attacks and 2017 was only marginally better.1 The territorial defeat of the Islamic State has not so far led to a reduction of its attacks. In parallel, existing conflicts are enduring: American troops are still present in Afghanistan, and the conflict in Syria has been raging since 2011. The ‘Global War on terror’ isn’t ending anytime soon. More deeply, the concept of global war on terror itself raises another question, that of the confusion of legal frameworks between terrorism and warfare: indeed, it must be stressed that terrorism and war are theoretically two very different phenomena, which traditionally fit into different legal framework: terrorism is usually dealt with through domestic criminal law and law enforcement tools, as well as international cooperation mechanisms and treaties. It also involves issues of human rights law, refugee law, etc.2 On the other hand, war theoretically follows a very strict framework of laws of war, which consists of a number of treaties and—as importantly—a number of customary international law norms.3 These are two distinct legal regimes, which provide very different obligations on states and authorise very different actions in some cases. Two issues reflect this critical difference: detention and use of force against individuals.4 Under the laws of war framework, a legitimate prisoner of war can be detained for the length of the conflict.5 Yet, international human rights law, which applies to counterterrorism, prohibits arbitrary detention and pre-charge detention.6 Even more significantly, targeting a legitimate enemy combatant is a valid action under the laws of war,7 as long as certain conditions are met.8 However, under international human rights law, the right to life can not be derogated from.9 In these two cases, the default legal standards are diametrically opposed. In practice, in many cases, it is clear which legal framework applies and only one of the options will apply. However, the overlap 1 See ‘Every 2017 terrorist attack, mapped’, The Washington Post, 18th January 2018, https://www. washingtonpost.com/news/worldviews/wp/2018/01/18/every-2017-terrorist-attack-mapped/?utm_ term=.841b0387c941. 2 For an overview of the international framework on counterterrorism, see Feinberg, Myriam (2016). Sovereignty in the Age of Global Terrorism: The Role of International Organisations. Brill. 3 See, among others, Dinstein, Yoram (2016). The Conduct of Hostilities under the Law of International Armed Conflict. Cambridge University Press, and Solis, Gary D. (2010). The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press. 4 There are many more issues of course but these two illustrate the differences more clearly. 5 Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135. 6 Article 5, Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5 (hereafter the ECHR), and article 19, UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 (hereafter the ICCPR). 7 Customary rule of international humanitarian law of distinction between civilians and combatants. 8 Customary principles of military necessity and proportionality. 9 Article 2 ECHR and Article 6 ICCPR. Article 2 ECHR includes a list of exception for ‘absolute necessity’.

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between conflicts, wars and counterterrorism operations is increasing and it confuses these two categories. International humanitarian law has developed concepts such as non-international armed conflict10 and, direct participation in hostilities11 in order to cover conflicts involving non-state actors but this does not sufficiently reflect the overlap between the two legal frameworks. The tendency to use various legal regimes to address terrorism or conflicts allows a great flexibility for an ever-changing threat and provides varied responses to the different types of attacks and conflicts that states face sometimes simultaneously in different geographical locations. For instance, the following measures have been used to fight the Islamic State (ISIS)12 by states: a number of members of ISIS are included in the UN sanctions list pursuant to resolutions 1267 (1999), 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh), Al-Qaida, and associated individuals, groups, undertakings and entities. This regime imposes financial sanctions, arms embargoes and travel bans on the individuals and entities it targets.13 All UN member states have to implement these measures through their own domestic system. In addition, and based on Resolution 2178 (2014), adopted by the UN Security Council, a number of states have adopted new legislation to prevent the travel of foreign terrorist fighters to zones of conflict.14 Moreover, as a result of the November 2015 terrorist attacks in France, claimed by ISIS, France declared a state of emergency,15 which lasted for two years and that allowed the executive to adopt measures for the creation of zones of protection and security; the imposition of curfews; traffic stops and searches; house arrest for individuals whose activity is deemed dangerous; and administrative searches.16 Finally, a number of states are conducting airstrikes against ISIS, both in Iraq and Syria. The legal justification for these airstrikes varies according to each state and depends on whether they are conducted in Iraq or Syria.17 The observations made here point to two tendencies in the area of national security threats, but which also reflect an increasing use of states of emergency regimes in a variety of legal areas to deal with a number of crises: on the one hand, states argue 10 Article

3 common to the Geneva Conventions of 12 August 1949. Committee of the Red Cross, ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’, 21st December 2010. 12 The United States, the UN and a number of other states use the ISIL acronym (Islamic State of Iraq and the Levant), but the group is also known as the Islamic State in Iraq and Syria (ISIS), or Daesh, which are the initials in Arabic. This introduction uses ISIS. 13 See Security Council Committee pursuant to resolutions 1267 (1999) 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh) Al-Qaida and associated individuals groups undertakings and entities, https://www.un.org/sc/suborg/en/sanctions/1267#further%20information. 14 UN Security Council, Security Council resolution 2178 (2014) [on threats to international peace and security caused by foreign terrorist fighters], 24 September 2014, S/RES/2178 (2014). 15 Décret n° 2015-1475 du 14 novembre 2015 portant application de la loi n° 55-385 du 3 avril 1955. 16 See (in French), Factsheet ‘Etat d’urgence et autres états d’exception’, http://www.vie-publique. fr/actualite/faq-citoyens/etat-urgence-regime-exception/. 17 For an analysis of the international legal framework surrounding the airstrikes, see Feinberg, Myriam (2015–2016). The Legality of the International Coalition against ISIS: The Fluidity of International Law. JUSTICE 57: 24. 11 International

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that they need special tools to respond to the exceptional threats of terrorism, hybrid conflicts and asymmetrical warfare, because these cannot be addressed by conventional methods. They use this argument as a justification for an increasing number of legislation and legal methods to address the threat. On the other hand, terrorism seems to have become the new normal across the globe and wars aren’t won anymore. In short, the exception becomes the norm and the emergency becomes permanent. A 2018 report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Fionnuala Ni Aoláin, criticises the concept of de facto emergencies, created by counterterrorism legislation post-9/11,18 a process also described by Kim Lane Scheppele’s ‘emergency script’.19 In their chapter of this book, Kumaravadivel Guruoparan describes the instrumentalisation of law as a tool for normalising emergency. The problem is that permanent emergencies challenge democratic principles, such as the separation of powers: under states of emergencies, the power is often concentrated in the hands of the executive. The executive is also the favoured actor for national security responses.20 The parliament is often side-tracked to adopt measures as fast as possible, and there is a history of the judiciary deferring to the executive in matters of national security.21 In recent years and in some countries, the judiciary has taken a proactive role in reviewing executive decisions, even in areas of national security.22 Some of the articles in this section show the active role of the Israeli Supreme Court in this context. A second issue with using an exceptional framework to address both terrorism and wars is that it might undermine the constitutional protection of fundamental rights. Indeed, moving away from criminal law and human rights protection means that counterterrorism shifts towards targeting enemies. It was said that the 9/11 attacks ‘transformed the face of the foreigner into a prima facie face of terrorism.’23

18 AHRC/37/52 2, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, ‘The Human Rights Challenge of States of Emergency in the Context of Countering Terrorism’, Advanced Unedited Version, distributed 9th February 2018. 19 See Scheppele, Kim Lane (2010). Exceptions that Prove the Rule: Embedding Emergency Government in Everyday Life. In Tulis J.K. and Macedo, S. (eds). The Limits of Constitutional Democracy. Princeton University Press, page 134. 20 See Roach, Kent (2011). The 9/11 Effect: Comparative Counter-Terrorism. Cambridge University Press. 21 See for instance the United States v. Reynolds, 345 U.S. 1 case of 1953 where the court upheld ‘the privilege against revealing military secrets, a privilege which is well established in the law of evidence’; or R v. Secretary of State for the Home Department, ex parte Cheblak [1991] 2 All ER 319 (CA) where the court held that national security was exclusively the responsibility of the executive. 22 For an analysis of the role of the European Court of Justice’s case law on human rights in counterterrorism, see Feinberg Myriam. Sovereignty in the Age of Global Terrorism, chapter 10. 23 Guild, Elspeth (2006). International Terrorism and EU Immigration, Asylum and Borders Policy: The Unexpected Victims of 11 September 2001. In Public Policy and the New European Agendas. Edward Elgar Publishing, page 237.

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This section of the book examines terrorism and warfare and some of the consequences of treating them as extreme conditions, on some elements of constitutionalism. The three following articles offer a number of insights into the challenges faced by democratic states when they respond to security threats in the 21st century. In ‘Human Rights in Times of Terror—A Judicial Point of View’, former Chief Justice of the Israeli Supreme Court, Aharon Barak summarises his views on the role of judges in promoting democracy in a country that deals with terrorism on a daily basis. An experienced judge, Barak offers here a call to arms. The article focuses on the role of judges in times of terrorism and is specific to the context of Israel, but Barak stresses that, while terrorism is the ultimate threat to national security, the decisions of judges will have an impact on democracy in peace time. Therefore, he insists that the balance between values should be the same in times of terrorism and in times of peace, and that the independence of the judiciary should remain the same: ‘this is how democracy acts in times of peace and calm. This is how democracy acts in times of war and terror. It is precisely in these difficult times that the power of democracy is revealed. Precisely in the difficult situations in which Israel finds itself today, Israeli democracy is put to the test.’ For Barak, extreme conditions should be dealt with within the confines of the law and, while he reminds us that security needs to be protected, he also states that there shouldn’t be different rules when it comes to terrorism. The proportionality exercise should be applied at all times. Barak offers abstract of rulings which show that judges balanced the legal constraints with the operational needs to stress that not all means are allowed when it comes to addressing the threat of terrorism. Aharon Barak’s words have been quoted worldwide and constitute a positive outlook on judicial review in times of terrorism. Yet, one must remember first, that not all countries have an active court, which will take upon itself to provide this kind of review; that the composition of courts might evolve according to political changes, especially when judges are appointed by the executive; and finally, that in some cases, especially in times of emergency, some courts are not given a role at all. This is why it is critical to limit emergency and executive measures both in time and in scope, to deal with extreme conditions. Joshua Segev, in ‘Detaining Unlawful Enemy Combatants in Israel: A Matter of Misinterpretation?’ focuses on the interpretation by the Israeli Supreme Court of the Detention of Unlawful Enemy Combatant Act of 2002. In particular, he criticises the ‘territorial and over-individualisation interpretation’ of the court, which, he argues, created a normalised administrative detention mechanism for the areas that are outside of Israel’s borders. Segev’s article illustrates the confusion between criminal law and laws of war framework to deal with national security threats and how this ‘challenges the institutional design’ of democracies. The article offers support for an ‘associative theory of culpability’ in order to detain enemy combatants, which would be based on their ranking in their organisation in addition to the individual threat element required by the court. In “The Law Governing the Right of Enemy Aliens’ Access to Courts”, Yoram Rabin, Liav Orgad and Roy Peled tackle another complex category of ‘enemies’. They first offer a historical and comparative analysis of enemy aliens’ access to courts in England, France, the United States and in International Law. Their analysis

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shows an evolution from an original blanket prohibition, to a more recent situation where access to courts is accepted in some limited conditions. But Rabin, Orgad and Peled argue that the presumption against access should now be reversed to allow any individual to have their day in court and that this presumption should be based on a functional rule, which they develop in the second part of their paper. Their justification is that democratic principles of the 21st century call for a restatement of the law to focus on the reality of the threat rather than on concepts of national identity and citizenship, which, as mentioned, have permeated the security discourse. The variety of angles shown in these articles reflect the complexity of the issue— even within one single state—and it calls for further discussion on the topic. The three articles stress the need for the protection of national security in the face of everchanging threats, but encourage legal precision and the adherence to constitutional principles. When crises become the new normal, constitutionalism should provide answers rather than be set aside indefinitely.

References Dinstein Y (2016) The conduct of hostilities under the law of international armed conflict. Cambridge University Press Feinberg M (2015–2016) The legality of the international coalition against ISIS: the fluidity of international law. Justice 57:24 Feinberg M (2016) Sovereignty in the age of global terrorism: the role of international organisations. Brill Guild E (2006) International terrorism and EU immigration, asylum and borders policy: the unexpected victims of 11 September 2001. In: Public policy and the new European agendas. Edward Elgar Publishing, p 237 Roach K (2011) The 9/11 effect: comparative counter-terrorism. Cambridge University Press Scheppele KL (2010) Exceptions that prove the rule: embedding emergency government in everyday life. In: Tulis JK, Macedo S (eds) The limits of constitutional democracy. Princeton University Press, p 134 Solis GD (2010) The law of armed conflict: international humanitarian law in war. Cambridge University Press

Human Rights in Times of Terror—A Judicial Point of View Aharon Barak

Abstract In this chapter, Former President of the Israeli Supreme Court argues that the role of a judge on the Supreme Court of a democratic state is to protect both the constitution and democracy. Judges in modern democracies should protect democracy both from terrorism and from the means the state wishes to use to fight terrorism. Judges meet their supreme test when they face situations of war and terrorism. The protection of human rights of every individual is a duty much more formidable in situations of war or terrorism than in times of peace and security. But if judges fail in their role in times of war and terrorism, they will be unable to fulfil their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of war and the status of human rights during a period of peace. The chapter explores these issues through an examination of the need for a balanced and proportionate approach and by using illustrations from the example of the Israeli Supreme Court, with a focus on the role of judicial review in the ‘war on terror’.

1 The Role of the Judge—To Protect Democracy I see the role of any judge—national or international—as the protection of democracy.1 We cannot take the continued existence of a democracy for granted. This is certainly the case for new democracies, but it is also true for the old and wellestablished ones. The approach that “it cannot happen to us” can no longer be 1 For

a comprehensive analysis of my thesis, see Barak (2006b).

This paper is based on selections from Barak (2002); Barak (2003); Barak (2008); Barak and Friedman (Barak 2006a); European Court of Human Rights (2016). A previous version on this article has been published in Barak (2008), Human rights in times of terror—a judicial point of view. Legal Studies, 28: 493–505. A. Barak (B) Interdisciplinary Center (IDC), Radzyner Law School Herzliya, Herzliya, Israel e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_8

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accepted. Anything can happen. If democracy was perverted and destroyed in Germany of Kant, Beethoven and Goethe, it can happen anywhere. If we do not protect democracy, democracy will not protect us. I do not know if the Supreme Court judges in Germany could have prevented Hitler from coming to power in the 1930s. But I do know that one of the lessons of the Holocaust and of the Second World War is the need to have democratic constitutions and ensure that they are put into effect by judges whose task is to protect democracy. It was this awareness, in the post-World War II era that helped disseminate the idea of judicial review of legislative—action both on the national level and on the international level—and make human rights central. And it shaped my perspective that the main role of the judge in a democracy is to maintain and protect democracy. According to this approach, judges—whether national or international—have a major role to play in protecting democracy. They should protect it both from terrorism and from the means the state wishes to use to fight terrorism. Judges are, of course, tested daily in their protection of democracy, but judges meet their supreme test when they face situations of terrorism. The protection of human rights of every individual is a duty much more formidable in situations of terrorism than in times of peace and security. If judges fail in our role in times of terrorism, they will be unable to fulfill their role in times of peace and tranquility. It is a myth to think that it is possible to maintain a sharp distinction between the status of human rights during a period of terror and the status of human rights during a period of tranquility. It is self-deception to believe that judges can limit their judicial rulings so that they will be valid only during terror, and that they can decide that things will change in peacetime. The line between terror and tranquility is thin. In any case, it is impossible to maintain this distinction in the long term. Judges should assume that whatever they decide when terrorism is threatening security will linger many years after the terrorism is over. Indeed, judges must act with coherence and consistency. A wrong decision in a time of terrorism plots a point that will cause the judicial curve to deviate after the crisis passes.2

2 See

Korematsu v United States 323 US 214, 245–246 (1944): “[A] judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty […] A military order, however unconstitutional, is not apt to last longer than the military emergency. […] But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. […] A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image”. See Hughes (2001), p. 186 (noting the general agreement that “judicial independence is both an individual and a systemic, institutional or ‘collective’ quality”). See also Tassopoulos (2019) (discussing the importance of continuity and of distinguishing between the emergency and the existing constitutional order created through overarching political deliberation), and Kuo (2019) (discussing the role of the judiciary in protecting the rule of law in perpetual states of emergency).

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Moreover, democracy ensures judges—national and international—independence. It strengthens them, because of their political non-accountability against the fluctuations of public opinion. The real test of this independence comes in situations of terrorism.3 The significance of the judges non-accountability, becomes clear in these situations when public opinion is more likely to be near-unanimous. Precisely in these times of terrorism, judges must embrace their supreme responsibility to protect democracy. They should always reflect history—not hysteria. Admittedly, the struggle against terrorism turns our democracy into a “defensive democracy” or “militant democracy.” (András Sajó 2004). Nonetheless, this defense and this militant fight must not deprive our regime of its democratic character. Judges should act in the spirit of defensive fighting or militant democracy, as opposed to uncontrolled democracy.

2 The Battle Against Terror—Within the Law There is a well-known saying that when the cannons speak, the Muses are silent. A similar idea was expressed by Cicero in his maxim “Silent enim leges inter arma” (In battle, indeed, the laws are silent) (Cicero 1972). These statements are regrettable; I hope they do not reflect the way things are. I am convinced they do not reflect the way things should be. Every battle a country wages—against terrorism or against any other enemy—must be waged in accordance with rules and laws. There is always law according to which the state must act. There are no black holes in which there is no law. And the law needs Muses. We need the Muses most when the cannons speak. We need laws most in times of war. The struggle against terrorism is not conducted outside the law, but within the law, using tools that the law makes available to a democratic state. Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it. In its battle against terrorism, a democracy acts within the framework of the law and according to the law. Indeed, the battle against terrorism is a battle of a law-abiding nation and law-abiding citizens against lawbreakers. It is, therefore, not merely a battle of the state against its enemies; it is also the battle of the law against its enemies.

3 The Need for a Balanced Approach Democracies should conduct the struggle against terrorism with a proper balance between two conflicting values and principles. On the one hand, we must consider the values and principles relating to the security of the state and its citizens. Human rights 3 For

similar ideas regarding economic crisis, see Bertolini (2019); regarding epidemics, see Villarreal (2019); regarding economic austerity measures, see Baraggia (2019).

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cannot justify undermining national security in every case and in all circumstances. Human rights are not a stage for national destruction.4 The Constitution is not a suicide pact. Judges always recognize the power of the state to protect its security and the security of its citizens. On the other hand, we must consider the values and principles relating to human rights. National security cannot justify undermining human rights in every case and under all circumstances. National security does not grant an unlimited license to harm the individual. Judges always emphasis that the rights of every individual must be preserved, including those of the individual suspected of being a terrorist. Also a terrorist is a human being and his dignity must be protected. Every balance that is made between security and human rights will impose certain limitations on both security and human rights. A proper balance will not be achieved when human rights are fully protected, as if there were no terrorism. Similarly, a proper balance will not be achieved when national security is afforded full protection, as if there were no human rights. The balance is the price of democracy. Only a strong, safe, and stable democracy may afford and protect human rights, and only a democracy built on the foundations of human rights can exist with security. It follows that the balance between security and human rights does not reflect the lack of a clear position. On the contrary, the proper balance between security and freedom is the result of a clear position that recognizes both the need for security and the need for human rights. When I speak about the balance, I don’t mean an external normative process that changes the scope of rights and the protection accorded them because of terror. I mean the ordinary process and the ordinary balancing rules we have that take place when we address the relationship between individual rights and the needs of society. In this latter process, rights are not absolute. They may be limited to serve the needs of society. In a judgment that dealt with the battle on terror I wrote5 : […] Israeli constitutional law has a consistent approach to human rights in periods of relative calm and in periods of increased fighting. We do not recognize a clear distinction between the two. We do not have balancing laws that are unique to times of war. Naturally, human rights are not absolute. They can be restricted in times of calm and in times of war. I do not have a right to shout ‘fire’ in a theatre full of spectators […] War is like a barrel full of explosives next to a source of fire. In times of war the likelihood that damage will occur to the public interest increases and the strength of the harm to the public interest increases, and so the restriction of the right becomes possible within the framework of existing criteria […] Indeed, we do not have two sets of laws or balances, one for times of calm and the other for times of terror.

When the court rules on the balance between security and freedom during times of terrorist threats, it often encounters complaints from both sides. The supporters 4 EA

2/84 Neiman v Chairman of Cent Elections Comm for Eleventh Knesset (1985), IsrSC 39(2) 225, 310 (Hebrew), available in English at: https://supremedecisions.court.gov.il/Home/ Download?path=EnglishVerdicts\84\020\000\Z01&fileName=84000020_Z01.txt&type=4. Based on Terminiello v City of Chicago 337 US 1, 37 (1949) (Jackson J., dissenting). 5 HCJ 7052/03 Adalah Legal Centre For Arab Minority Rights in Israel v Minister of Interior (2006), IsrSC 61(2) 202, 282–283 (Hebrew), available in English at: https://supremedecisions.court.gov.il/ Home/Download?path=EnglishVerdicts\03\520\070\a47&fileName=03070520_a47.txt&type=4.

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of human rights argue that the court gives too much protection to security and too little to human rights. The supporters of security argue that the court gives too much protection to human rights and too little to security. Frequently, the persons making these arguments read only the judicial conclusion without considering the judicial reasoning that seeks to make a proper balance between the conflicting values and principles. None of this should intimidate the judge. He or she must and does rule according to his or her best understanding and conscience. This balance is based upon the view that in democracy, not all means are acceptable. The ends do not justify the means. Thus, we ruled that parts of the separation fence in the West Bank, which is intended to prevent terrorists from the West Bank from entering Israel are not legal. We determined that the additional security attained by the location chosen for the security fence by the army is not proportional to the harm which that fence location causes to the fabric of the lives of the local inhabitants. In one case I wrote6 : Ends do not justify the means. It is a manifestation of the idea that there is a barrier of values which democracy cannot surpass, even if the purpose whose attainment is being attempted is worthy.

In one case we decided that the executive branch has no authority to authorize (ante) torture. This prohibition is comprehensive, and applies even in a “ticking bomb” situation. In my judgment I wrote7 : We are aware that this judgment of ours does not make confronting that reality any easier. That is the fate of democracy, in whose eyes not all means are permitted, and to whom not all the methods used by her enemies are open. At times democracy fights with one hand tied behind her back. Despite that, democracy has the upper hand, since preserving the rule of law and recognition of individual liberties constitute an important component of her security stance. At the end of the day, they strengthen her and her spirit, and allow her to overcome her difficulties.

In one of my last judgments, I had to deal with the constitutionality of a statute that imposed a temporary flat ban of family unification between an Israeli and his West-Bank spouse. The reason for the ban was that in twenty six cases the non Israeli spouse, who came to Israel by the program of family unification, was directly involved in terrorist activities. I decided that the statute is unconstitutional as it affects in a non-proportional way the right to family unification, which in Israel is a constitutional right derived from the right to dignity. In my judgment I wrote8 :

6 HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v Minister of Defence (2006), IsrSC 62(1) 1, 37 (Hebrew), available in English at: https://supremedecisions.court.gov.il/Home/ Download?path=EnglishVerdicts\05\760\082\a13&fileName=05082760_a13.txt&type=4. 7 HC 5100/94 Public Committee Against Torture in Israel v The State of Israel (1999), IsrSC 53(4) 817, 845 (Hebrew), available in English at: https://supremedecisions.court.gov.il/Home/Dow nload?path=EnglishVerdicts\94\000\051\a09&fileName=94051000_a09.txt&type=4. 8 HCJ 7052/03 Adalah Legal Centre For Arab Minority Rights in Israel v Minister of Interior (2006), IsrSC 61(2) 202, 347–348 (Hebrew), available in English at: https://supremedecisions.court.gov.il/ Home/Download?path=EnglishVerdicts\03\520\070\a47&fileName=03070520_a47.txt&type=4.

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Examination of the test of proportionality (in the narrow sense) returns us to first principles that are the foundation of our constitutional democracy and the human rights that are enjoyed by Israelis. These principles are that the end do not justify the means; that security is not above all else; that the proper purpose of increasing security does not justify serious harm to the lives of many thousands of Israeli citizens. Our democracy is characterized by the fact that it imposes limits on the ability to limit human rights; that it is based on the recognition that surrounding the individual there is a wall protecting his rights, which cannot be breached even by the majority. This is how the court acted in many different cases. Thus, for example, adopting physical measures (‘torture’) would without doubt increase security. But we held that our democracy was not prepared to adopt them, even at the price of a certain harm to security. Similarly, determining the route of the separation fence in the place decided by the military commander [in Beit Sourik Village Council] would have increased security. But we held that the additional security was not commensurate with the serious harm to the lives of the Palestinians. Removing the family members of suicide bombers from their place of residence and moving them to other places (‘assigned residence’) would increase security in the territories, but it is inconsistent with the character of Israel as a ‘democratic freedom-seeking and liberty-seeking state’. We must adopt this path also in the case before us. The additional security achieved by abandoning the individual check and changing over to a blanket prohibition involves such a serious violation of the family life and equality of many thousands of Israeli citizens that it is a disproportionate change. Democracy does not act in this way. Democracy does not impose a blanket prohibition and thereby separate its citizens from their spouses; Democracy does not prevent them from having a family life; democracy does not impose a blanket prohibition and thereby give its citizens the option of living in it without their spouse or leaving the state in order to live a proper family life; democracy does not impose a blanket prohibition and thereby separate parents from their children; democracy does not impose a blanket prohibition and thereby discriminate between its citizens with regard to the realization of their family life. Indeed, democracy concedes a certain amount of additional security in order to achieve an incomparably larger addition to family life and equality. This is how democracy acts in times of peace and calm. This is how democracy acts in times of war and terror. It is precisely in these difficult times that the power of democracy is revealed. Precisely in the difficult situations in which Israel finds itself today, Israeli democracy is put to the test.

4 Judicial Review of the Battle on Terror Judicial review of the battle against terrorism, by its very nature, raises the question of the timing and scope of judicial review. There should not be a theoretical difference between applying review at a time that the state is under threats of terrorism and doing so at a time after the terrorism seems to be gone. We should never postpone our judgment until terror is over, because the fate of a democracy and of human beings may hang in the balance. Protection of human rights would be bankrupt if courts—consciously or unconsciously—decided to review the behavior of the state only after the period of emergency ended. Furthermore, we should not accept arguments that the battle on terror in nonjusticiable. When human rights are effected by state action, such action should always be justiciable.9 9 For an analysis on the abuse of emergency powers in Cypress, and the importance of courts for the

restraint of government power during emergencies, see Hadjigeorgiou and Kyriakou (2019). For an

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What is the scope of judicial review in time of terror? The answer to this question should vary according to the essence of the concrete question raised. On the one end of the spectrum stands the question—“what is the law on the battle against terror?” That question is within the realm of the judicial branch. The court is not permitted to liberate itself from the burden of that authority. The question which the court should ask itself is not whether the executive branch’s understanding of the law is a reasonable understanding. The question should be is it the correct understanding. On the other end of the spectrum is the decision, made on the basis of the knowledge of the military professionals, to execute an operation against terrorists. That decision is the responsibility of the executive branch. It has the professional-security expertise to make that decision. The Court will ask itself only if a reasonable military commander could have made the decision which was made. If the answer is yes, the Court will not exchange the military commander’s security discretion within the security discretion of the Court. True, “military discretion” and “state security” are not magic words which prevent judicial review. However, the question is not what the judge would decide in the given circumstances, rather whether the decision which the military commander made is a decision that a reasonable military commander was permitted to make. On that subject, special weight is to be granted to the military opinion of the official who bears the responsibility for security. Between these two ends of the spectrum, there are intermediate situations. Each of them requires a meticulous examination of the character of the decision. One of those legal aspects is the decision about proportionality. Who decides about proportionality? Is it a military decision to be left to the military, or a legal decision within the discretion of the judges? My answer is that the proportionality of military means used in the fight against terror is a legal question, left to the judges. In the case, regarding the proportionality of the harm which the separation fence causes to the fabric of life of the local inhabitants, I wrote10 : The military commander is the expert regarding the military quality of the separation fence route. We are experts regarding its humanitarian aspects. The military commander determines where, on hill and plain, the separation fence will be erected. That is his expertise. We examine whether this route’s harm to the local residents is proportionate. That is our expertise.

Proportionality is not a standard of precision. At times there are a number of ways to fulfill its conditions. A zone of proportionality is created. It is the borders of that zone that the Court guards. The decision within the borders is the political branch’s decision. Often the court will encounter the argument from the legislator or the executive that security considerations led to an action of the state, followed by a request that the court be satisfied with this statement. Such a request should not be granted. “Security considerations” are not magic words. The court must insist on hearing the analysis on the role of judicial review on emergency executive decisions and the rule of law in the Philippines, see Gatmaytan (2019). 10 HCJ 2056/04 Beit Sourik Village Council v The Government of Israel (2004), IsrSC 58(5) 807, 845 (Hebrew), available in English at: https://supremedecisions.court.gov.il/Home/Download?path= EnglishVerdicts\04\560\020\A28&fileName=04020560_a28.txt&type=4.

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specific security considerations that prompted the states actions. The court must be persuaded that the security considerations actively motivated the state’s action and were not merely a pretext. The court must be convinced that the security measures adopted were proportional. Indeed, in several of the many security cases that the Supreme Court heard, senior army commanders and heads of the security services testified before us. Only if we were convinced that the security consideration was the dominant one and that the security measure was proportionate, did we dismiss the challenge against the security action. In dismissing challenges to security actions, judges should not be naïve or cynical. Judges should analyze the evidence before the objectively. In the case dealing with review under the fourth Geneva Convention, of the state’s decision to assign Arab residents from the West Bank to the Gaza Strip, I noted that11 : In exercising judicial review […] we do not make ourselves into security experts. We do not replace the military commander’s security considerations with those of our own. We take no position on the way security issues are handled. Our job is to maintain boundaries, and to guarantee the existence of conditions that restrict the military commander’s discretion […] We do not, however, replace the commander’s discretion with our own. We insist upon the legality of the military commander’s exercise of discretion and that it fall into the range of reasonableness, determined by the relevant legal norms applicable to the issue.

Is it proper for judges to review the legality of the fight on terrorism? Many argue that the court should not become involved in these matters. These arguments are heard from both ends of the political spectrum. On one side critics argue that judicial review undermines security. On the other side, critics argue that judicial review gives legitimacy to actions of the government authorities in their battle against terrorism. Both arguments are unacceptable. As to the argument that judicial review undermines security: Judicial review of the legality of the battle on terrorism may make the battle against terrorism harder in the short term. Judicial review, however, fortifies and strengthens the people in the long term. The rule of law is a central element in national security. As I wrote in a case of pre-trial pardon given to the heads of the General Security service who committed crimes against terrorists:12 There is no security without law. The rule of law is an element of national security. Security requires us to find proper tools for interrogation. Otherwise, the General Security Service will be unable to fulfill its purpose. The strength of the Service lies in the public’s confidence in it. Its strength lies in the court’s confidence in it. If security considerations are decisive, the public will have no confidence, and the court will have no confidence in the security service and the lawfulness of its interrogations. Without this confidence, the branches of the state cannot function. This is the case with regard to public confidence in the courts, and it is the case with regard to public confidence in the other branches of state. 11 HC 7015/02 Ajuri v. IDF Commander in West Bank

(2002), IsrSC 56(6) 352, 375–376 (Hebrew), available in English at: https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdi cts\02\150\070\A15&fileName=02070150_a15.txt&type=4. 12 HC 428/86 Barzilai v Government of Israel (1986), IsrSC 40(3) 505, 585 (Hebrew) (Barak J., dissenting), available in English at: https://supremedecisions.court.gov.il/Home/Download?path= EnglishVerdicts\86\280\004\Z01&fileName=86004280_Z01.txt&type=4.

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And I will add—to the confidence in international courts. As to considerations of legitimacy: To the extent that legitimacy by the court means that the acts of the state are lawful, the court fulfills its traditional role. Both when the state wins and when the state loses, the rule of law and democracy benefit. It should be remembered that the effect of the judicial decision does not occur only in the individual instance that comes before it. Rather the main effect occurs in determining the general norms according to which the state acts, and in establishing the deterrent effect this norm will have. The test of the rule of law arises not merely in the few cases brought before it, since state authorities are aware of the ruling of the court and act accordingly. The argument that judicial review somehow validates the state actions does not take into account the nature of judicial review. In hearing a case, the court does not examine the wisdom of the battle against terrorism, but only the legality of the acts taken in furtherance of the battle. The court does not ask itself if it would have adopted the security measures that were adopted, if it were responsible for security. Instead, the court asks if a reasonable person responsible for security would be within the bounds of the law to adopt the security measures that were adopted. Thus, the court does not express agreement with the means adopted but rather fulfills its role by reviewing the legality of the executive acts. Naturally, one must not go from one extreme to the other. One must recognize that the court will not solve the problem of terrorism. It is a problem to be addressed by the other branches of the state. The role of the court is to ensure the legality of the battle against terrorism. It must ensure that the battle against terrorism is conducted within the framework of the law and not outside it. This is the court’s contribution to the struggle of democracy to survive. It is an important contribution, one that aptly reflects the judicial role in a democracy. Realizing this role during the battle against terrorism is difficult. Judges cannot and would not want to escape from this difficulty. I regard of myself as a judge who was sensitive to his role in a democracy. I took the tasks imposed on me—protecting democracy—seriously. Despite criticism often heard I have continued on this path for twenty eight years. I hope that by doing so, I was serving my legal system properly. Indeed, as judges, we must continue on our path according to our consciences. Judges, have a North Star that guides them: the fundamental values and principles of democracy. A heavy responsibility rests on their shoulders. Even in hard times, they must remain true to themselves. I discussed this in the opinion considering whether extraordinary methods of interrogation—torture or inhuman treatment— may be used against a terrorist in a “ticking bomb” situation. The answer was no. I wrote:13 Deciding these petitions weighed heavily on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. We know its problems, and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. Our concern 13 HC 5100/94 Public Committee Against Torture in Israel v The State of Israel

(1999), IsrSC 53(4) 817, 845 (Hebrew), available in English at: https://supremedecisions.court.gov.il/Home/Download? path=EnglishVerdicts\94\000\051\a09&fileName=94051000_a09.txt&type=4.

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that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. Our fellow-citizens demand that we act according to the law. This is also the same standard that we set for ourselves. When we sit at trial, we too stand trial.

References Baraggia A (2019) Economic crisis and fundamental rights protection: the case law on austerity measures in comparative perspective Barak A (2002) Foreword: a judge on judging: the role of a supreme court in a democracy. Harv LR 116:19 Barak A (2003) The role of a supreme court in a democracy, and the fight against terrorism. U Miami LR 58:125 Barak A (2006a) Judging, democracy and terror. In: Barak A, Friedman D (eds) Essays in memory of Professor Menashe Shava. Ramot Publishing, Israel Barak A (2006b) The judge in a democracy. Princeton UP, p 20 Barak A (2008) Human rights in times of terror: a judicial point of view. LS 28:493 Bertolini E (2019) Financial crisis as a new genus of constitutional emergency? Cicero WNH (1972) Pro milone, 5th edn. Harvard UP Dialogue between Judges (2016) European Court of Human Rights, Council of Europe, p. 21. Available via ECHR. https://www.echr.coe.int/Documents/Dialogue_2016_ENG.pdf. Accessed 28 Aug 2019 Gatmaytan D (2019) Judicial review and emergencies in post-Marcos Philippines Hadjigeorgiou N, Kyriakou N (2019) Entrenching hegemony in Cyprus: the doctrine of necessity and the principle of bicommunality Hughes P (2001) Judicial independence: contemporary pressures and appropriate responses. Can Bar Rev 80(181):186 Kuo M (2019) From institutional sovereignty to constitutional mindset: rethinking the domestication of the state of exception in the age of normalization Sajó S (ed) (2004) Militant democracy. Eleven International Publishing, The Hague Tassopoulos I (2019) Political emergencies as challenges to the impartiality of public law Villarreal P (2019) Public health emergencies and constitutionalism: between the national and the international

Cases EA 2/84 ((1985)) Neiman v Chairman of Cent Elections Comm for Eleventh Knesset. IsrSC 39(2): 225, 310 (Hebrew). Available in English at: https://supremedecisions.court.gov.il/Home/Dow nload?path=EnglishVerdicts\84\020\000\Z01&fileName=84000020_Z01.txt&type=4. Accessed 28 Aug 2019 HCJ 7052/03 (2006) Adalah legal centre for Arab Minority Rights in Israel v Minister of Interior. IsrSC 61(2): 202, 282–283 (Hebrew). Available in English at: https://supremedecisions.court. gov.il/Home/Download?path=EnglishVerdicts\03\520\070\a47&fileName=03070520_a47.txt& type=4. Accessed 28 Aug 2019 HCJ 8276/05 (2006) Adalah legal centre for Arab Minority Rights in Israel v Minister of Defence. IsrSC 62(1): 1, 37 (Hebrew). Available in English at: https://supremedecisions.court.

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gov.il/Home/Download?path=EnglishVerdicts\05\760\082\a13&fileName=05082760_a13.txt& type=4. Accessed 28 Aug 2019 HC 5100/94 ((1999)) Public committee against torture in Israel v The State of Israel. IsrSC 53(4): 817, 845 (Hebrew). Available in English at: https://supremedecisions.court.gov.il/Home/Dow nload?path=EnglishVerdicts\94\000\051\a09&fileName=94051000_a09.txt&type=4. Accessed 28 Aug 2019 HCJ 2056/04 (2004) Beit Sourik Village Council v The Government of Israel. IsrSC 58(5) 807, 845 (Hebrew). Available in English at: https://supremedecisions.court.gov.il/Home/Dow nload?path=EnglishVerdicts\04\560\020\A28&fileName=04020560_a28.txt&type=4. Accessed 28 Aug 2019 HC 7015/02 (2002) Ajuri v. IDF Commander in West Bank. IsrSC 56(6): 352, 375–376 (Hebrew). Available in English at: https://supremedecisions.court.gov.il/Home/Download?path=EnglishVe rdicts\02\150\070\A15&fileName=02070150_a15.txt&type=4. Accessed 28 Aug 2019 HC 428/86 (1986) Barzilai v Government of Israel. IsrSC 40(3): 505, 585 (Hebrew). Available in English at: https://supremedecisions.court.gov.il/Home/Download?path=EnglishVerdicts \86\280\004\Z01&fileName=86004280_Z01.txt&type=4. Accessed 28 Aug 2019 Korematsu v United States 323 US 214, 245–246 (1944) Terminiello v City of Chicago 337 US 1, 37 (1949)

Detaining Unlawful Enemy Combatants In Israel: A Matter of Misinterpretation? Joshua Segev

Abstract Legal experts have been debating the constitutionality of detaining “unlawful enemy combatants” not entitled to lawful combatant’s rights, immunities and privileges, in the so-called “war on terror”. The article argues against the territorial and over-individualized interpretation given to the Unlawful Enemy Combatant Act of 2002 by the Israeli Supreme Court. Namely, that the purpose of the Unlawful Enemy Combatant Act establishes an “ordinary” administrative detention mechanism to be used beyond Israel’s borders (i.e. in Gaza and Lebanon but not in Israel or the West Bank), and which requires the showing of an “individual threat” emanating from the detainee to state national security. The article defends an associative theory of culpability for detaining enemy combatant.

1 Introduction: Supreme Emergency, Terror and Detention Since the terrorist attacks of September 11, 2001 legal experts have been debating the constitutionality of detaining unlawful enemy combatants not entitled to lawful combatant’s rights, immunities and privileges, in the so-called “war on terror”.1 Some have even proposed the United States enact “administrative” or “preventative” detention laws that would authorize the detention of suspected terrorists outside the normal American criminal system.2 1 George P. Fletcher, ‘On Justice and War: Contradictions in the Proposed Military. Tribunals’ (2002) 25 Harv JL & Pub Pol’y 635, 638; George C. Harris, ‘Terrorism, War and Justice: The Concept of Unlawful Enemy Combatant’ (2003) 26 Loy LA Int’l & Comp L Rev 31; Mark David ‘Max’ Maxwell & Sean M. Watts, ‘“Unlawful Enemy Combatant”: Status, Theory of Culpability or Neither’ (2007) 5 J Int’l Crim Justice 19.

J. Segev (B) Netanya Academic College School of Law, Netanya, Israel e-mail: [email protected] 2 Matthew

C. Waxman, ‘Administrative Detention of Terrorists: Why Detain, and Detain Whom?’ (2009) 3 J Nat’l Sec L & Pol’y 1; Benjamin Wittes, Detention and Denial: The Case for Candor After © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_9

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This debate is part and parcel of a much larger debate regarding the protection of human rights in times of emergency, and the need for new constitutional frameworks and concepts to deal with the new threats.3 The paradigm case of ultimate emergency concerns the presence of an imminent threat to the existence of the state and to the collective survival of the nation, which necessitate extraordinary measures.4 Major acts of terrorism often trigger off mass hysteria, but they do not pose such an imminent existential danger. However, the indiscriminate killing of innocent civilians, which is often orchestrated in methods that induce mass panic, does present an imminent supreme threat to our deepest shared constitutional values and commitments. This is a twofold threat: on the one hand, terrorist attacks and operation methods undermine the social legitimacy of the government, since it is perceived as unable to maintain national security and public peace; on the other, the government’s response to terrorist attacks is often excessive and panic-driven breaching constitutional rights and the rule of law. Thus, the “war on terror” is a locus of constitutionalism under extreme conditions: constitutional structures and institutions (i.e., judicial review and separation of powers doctrine) are required to accommodate the tensions and to strike a (new?) balance between security and rights.5 In this respect, detention law in the contexts of counterterrorism and counterinsurgency maneuvers between two very different and characteristically opposed constitutional commitments: security and freedom,6 and tracks the conservative-liberal division along the fault lines of community versus individual and passive versus active judicial review.7 Nevertheless, detaining unlawful enemy combatants has its own set of legal difficulties and dangers that requires specified detailed consideration and judgment. This article discusses a specific question of whether unlawful enemy combatants can be detained—and on which terms—in order to facilitate the release of hostages, POWs and MIAs being held by terrorists and militia groups. Guantanamo (Brookings Institution Press, 2011). But compare Deborah N. Pearlstein, ‘Detention Debates’ (2012) 110 Mich L Rev 1045; David Cole, ‘Out of the Shadows: Preventative Detention, Suspected Terrorists, and War’ (2009) 97 Cal L Rev 693, 694; John P. McLoughlin, Gregory P. Noone & Diana C. Noone, ‘Security Detention, Terrorism and the Prevention Imperative’ (2009) 40 Case W Res J Int’l L 463. 3 George P. Fletcher, Romantics at War: Glory and Guilt in the Age of Terrorism (Princeton University Press 2002) 2–9; Bruce Ackerman, ‘The Emergency Constitution’ (2004) 113 Yale LJ 1029; Laurence H. Tribe & Patrick O. Gudridge, ‘The Anti-Emergency Constitution’ (2004) 113 Yale LJ 1801; Mark Tushnet, ‘Controlling Executive Power in the War on Terrorism’ (2005) 118 Harv L Rev 2673 Ronald Dworkin, Is Democracy Possible Here? (Princeton University Press, 2006) 24–51; Amanda L. Tyler, ‘Suspension as an Emergency Power (2008) 118 Yale LJ 600. 4 Ackerman, ibid 1031; Michael Walzer, Arguing about War (Yale University Press, 2004) 33; Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (5th edn, Basic Books, 2015) 250. 5 William J. Brennan Jr., ‘The Quest to Develop a Jurisprudence of Civil Liberties in Times of Security Crises’ (1988) 18 Isr YB Hum Rts 11. 6 David Cole, ‘Enemy Aliens’ (2002) 54 Stan L Rev 953, 955–956; Mark Tushnet, ‘Defending Korematsu?: Reflections on Civil Liberties in Wartime’ (2003) Wis L Rev 273. 7 Dworkin (n 3) 25.

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To answer this question, the article explores some general questions regarding our constitutional commitments to personal and collective responsibility and about institutional competence under the extreme conditions of asymmetric war. Asymmetry war makes for micro-battles and small-scale engagements.8 Hostage taking has been weaponized by terrorist groups in a way that pushes liberal democracy to its limits. The detention of unlawful enemy combatants for the goal of facilitating the release of hostages, POWs and MIAs is a challenge that Israel has been confronting for three decades. I wish to speak about the Israeli experience, not because Israel’s detention policies are flawless or because the Israeli Supreme Court’s record in reviewing detention policies and individual detentions is impeccable. They are not, and some mistakes have been made over the years. In fact, I will argue that the Israeli Supreme Court’s decisions, prohibiting detention of unlawful enemy combatant to facilitate the release of POWs hampered the ability of the government to counter the use of hostages as a weapon by terrorist organizations. Moreover, if we follow the sequence of legal decisions and military events in this matter, it appears that they have contributed to the escalation of the conflict. In the absence of legal and military means to secure the release of hostages and POWs, Israel went to two failed wars in Gaza and Lebanon. Thus, the Israeli constitutional experience can provide insights into the difficulties, dangers, principles and institutional competence of courts vis-àvis the political branches in confronting this challenge. My review of the historical development and Israeli legal cases is utilized for that end. But the article main thrust is not descriptive but normative. The article argues against the territorial and over-individualized interpretation given to the Detention of Unlawful Enemy Combatant Act of 2002 by the Israeli Supreme Court. Namely, that the purpose of the Unlawful Enemy Combatant Act establishes an “ordinary” administrative detention mechanism to be used beyond Israel’s borders (i.e. in Gaza and Lebanon but not in Israel or the West Bank), and which requires the showing of an “individual threat” emanating from the detainee to state national security. The article defends an associative theory of culpability for detaining enemy combatants: the detention should be based also on who they are (i.e., high ranking commander versus low ranking officers or “field” soldiers); on collective national goals (i.e., in order to release Israeli MIA soldiers); and not only on what they might do. Additionally, constitutional frameworks (i.e., the proportionality requirement) should be reframed accordingly to satisfy the demands and principles of the associative theory of culpability. The Article proceeds as follows: In part 2 I analyze the nature and essence of detentions debates and the need for a substantive argument and institutional designs to answer detention related questions and dilemmas. In part 3 I describe the legal 8 For

other problematic “small-scale engagements” in the war against terror (targeted killing, the use of force to rescue hostages and torture) see Jeremy Waldron, ‘Death Squads and Death Lists: Targeted Killing and the Character of the State’ (2015) NYU Pub L & Leg Theory Working Papers 519; Adam R Pearlman, ‘Captivity and the Law: Hostages, Detainees, and Criminal Defendants in the Fight Against Terrorism’ (2016) 22 ILSA J Int’l & Comp L 461; Yuval Ginbar, Why Not Torture Terrorist? Moral Practical and Legal Aspects of the “Ticking Bomb” Justification for Torture (Oxford Univ Press, 2010).

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battle over the detention of unlawful enemy combatants in Israel. In part 4 I assess the Israeli Supreme Court’s position in a military and political context. In part 5 I defend and propose an associative theory of culpability for detaining enemy combatants in order to secure the release of hostages and POWs.

2 Detention Debates Since 9/11 the discussion about detention of unlawful enemy combatant has proceeded in a bipolar manner. At one pole of the debate, scholars critically examined whether the detention of a person designated as unlawful enemy combatant accords with the International Laws of War.9 At the second pole, scholars assessed the constitutionality of detentions of Taliban fighters and Al Qaeda terrorists by the United States10 and the standards of judicial review and judicial deference.11 Most of the constitutional litigations and discourse has revolved around the Suspension Clause of the U.S. Constitution,12 and the attempts by Congress and the Executive Branch to limit the applicability of the writ of habeas corpus to detainees held at Guantanamo bay.13 I do not wish to dwell here about the legal and scholastic controversy over the precise definition of the term unlawful enemy combatant nor the definition of the related term “terrorism” properly so called. For the sake of argument, I wish to understand the nature of the debate about detentions of irregular fighters such as guerrilla fighters, freedom fighters, terrorists and the like.

9 Yoram

Dinstein, ‘Unlawful Combatancy’ (2003) 79 Int’l L. Stud 151; Manooher Mofidi & Amy E. Eckert, ‘Unlawful Combatant or Prisoners of War’ (2003) 36 Cornell Int’l LJ 59; Derek Jinks, ‘The Decline Significance of POW Status’ (2004) 45 Harv Int’l LJ 367; Shlomy Zachary, ‘Between the Geneva Conventions: Where Does the Unlawful Combatant Belong?’ (2005) 38 Isr L Rev 378; Marco Sassoli, ‘Query: Is There a Status of ‘Unlawful Combatant?’” (2006) 80 Int’l L Stud Ser US Naval War Col 57. 10 Samantha A. Pitts-Kiefer, ‘Jose Padilla: Enemy Combatant or Common Criminal?’ (2003) 48 Vill L Rev 875. 11 Stephen J. Schulhofer, ‘Checks and Balances in Wartime: American, British and Israeli Experience’ (2004) 102 Mich L Rev 1906; Trevor W. Morrison, ‘The Middle Ground in Judicial Review of Enemy Combatant Detentions’ (2009) 45 Willamette L Rev 453; Nino Guruli,’ “A Justifiable Self-Preference”? Judicial Deference in Post-9/11 Control Order and Enemy Combatant Detention Jurisprudence’ (2014) 3 Cambridge J. Int’l & Comp. L. 884. 12 U.S. Const. Article I, § 9, cl. 2: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”. 13 Richard H Fallon & Daniel J Meltzer, ‘Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror’ (2007) 120 Harv L Rev 2029; Brian R. Farrel, ‘Habeas Corpus in Times of Emergency: A Historical and Comparative View’ (2010) Pace Int’l L. Rev. Companion 74; Stephen I. Vladek, ‘The New Habeas Revisionism’ (2011) 124 Harv L Rev 941; Amanda L Tyler, ‘The Forgotten Core Meaning of the Suspension Clause’ (2012) 125 Harv L Rev 901; Joshua Alexander Gletzer, ‘Of Suspension, Due Process, and Guantanamo: The Reach of the Fifth Amendment after Boumediene and the Relationship between Habeas Corpus and Due Process’ (2012) 14 U. Pa. J. Const. L. 719; Lee Kovarsky, ‘A Constitutional Theory of Habeas Power’ (2013) 99 Va L Rev 753.

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Some academic commentators argued that current detention policies (and detention debate itself) are founded on double standard and blatant hypocrisy, sacrificing the liberties of minority groups (noncitizens) in order to further the majority’s security interests.14 Others, contended that “we are too embarrassed to confront our detention policy needs more directly”, and critique the “lack of candor”.15 Some even asserted that the concept of enemy combatant is characterized by “plasticity” that “renders it unhelpful as a tool for legal regulation and that whose indeterminacy vests vast discretion in the Executive.”16 In other words, the state want to have it both ways: treat unlawful enemy combatant as POWs without giving them the rights, privileges and immunities of POWs. Alternatively, to treat unlawful enemy combatant as criminal without securing due process and other basic constitutional rights. There is certainly some truth in these claims. Nonetheless, part of the difficulties surrounding the concept of unlawful enemy combatant are the result of the conflicting values and the need to balance security and personal liberty. Other difficulties are the result of the persistent disagreements regarding who lawfully may be held in detention and under what procedures. Legislators, government officials, judges and ordinary citizens disagree on imperative questions about detentions in these contexts: Who may be detained, under what circumstances, who bears the burden of proof (and by what measured of evidence), what kind of evidence is admissible, how the courts or military tribunals should handle evidence (such as statements) obtained involuntary, and by what process detainees were to be afforded to challenge their status.17 The lack of consensus and the wide range of moral, political and legal disagreements in these issues has been the elephant in the room. Some of the disagreements and controversies fall under the category of, what I call, “substantive disagreement”. Namely, these are disagreements regarding substantive detention policies that should be adopted and substantive detainees’ rights that should be protected. These disagreements, however, are not the only type of disagreements that stand at the core of the detention debate. Controversies emerge also about structural issues and about the proper overall constitutional (or international)18 mechanisms that provide, determine and review the detentions of unlawful enemy combatants. Namely, counterterrorism detention requires an institutional design, which specify how the legislator, the courts and the executive branch negotiate the sharing of decision making authority over detentions. Often these two types of detention related disagreements are intertwined and create a Gordian knot of disagreements that could not be easily dismantled.19 14 Cole

(n 6) 957. (n 2). 16 Allison M. Danner, ’Defining Unlawful Enemy Combatant: A Centripetal Story’, (2007) 43 Tex Int’l LJ 1, 1–2. 17 Robert M. Chesney, ‘Who May be Held? Military Detention Through the Habeas Lens’ (2011) 52 BC L Rev 769; Waxman (n 2); Cole (n 2). 18 See, for example, Fletcher (n 1), at 652, arguing that the “appropriate place” to bring the charges of war crimes against those responsible for the September 11 attacks “would be an international tribunal established by the United Nations by analogy to the International Criminal Tribunals for Yugoslavia and Rwanda.” 19 Schulhofer (n 11); Morrison (n 11). 15 Wittes

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Let me now return to the question at the heart of this Article: can a democratic state detain unlawful enemy combatant in order to facilitate the release of hostages? It is clear that this is a substantive question, and some substantive answer is required. It is also clear that if disagreement arise regarding the correct answer to this question, there is a need for an institutional design to resolve this disagreement. In the next chapter I review the litigations about the detention of unlawful enemy combatant in Israel.

3 The Legal Battle: Detaining Unlawful Combatants in Israel In the late 1980s several Lebanese nationalities have been held in Israel in administrative detention by the State of Israel,20 according to the Emergency Powers (Detention) Law of 1979 (hereinafter: Detention Law).21 Their detention was maintained solely for the purpose of being used as “bargaining chips” for negotiations with Islamic militia groups, which were believed to be holding Prisoners of War and MIAs from among the Israeli security forces. On April 12, 2000 an expanded bench of the Israeli Supreme Court delivered a judgment,22 which some have regarded “as a cornerstone in the legal field of human rights in Israeli constitutional law”.23 The Court held that the State of Israel was not empowered to hold the Lebanese detainees in administrative detention under the Detention Law, and ordered their release from detention and their return to Lebanon.24 The issue before the Court was the proper interpretation of the term “reasons of state security”, used by Article 2 of the Detention Law, which empowered the 20 The Lebanese were first prosecuted and convicted for belonging to a hostile organization and for participating in attacks against the IDF (Israel Defense Force), and were sentence to different periods of imprisonment. After completing their sentences, they were not released. At first, they were held in detention awaiting the implementation of the deportation decrees, and later were held in administrative detention. See Orna Ben-Naftali & Sean S. Gleichgevitch, ‘Missing in Legal Action: Lebanese Hostages in Israel’ (2000) 41 Harv. Int’l. L. J. 185; Eithan Barak, ‘Under Cover of Darkness: Ten Year Game with Human Lives as “Bargaining Chips” and the Supreme Court’ (1999) 8 Israel Journal of Criminal Justice 77. 21 See generally: Itzhak Zamir, ‘Administrative Detention: Directives of the Attorney General on the Matter of Administrative Detention under the Emergency Powers (Detention) Law, 5739–1979’ (1983)18 Isr. L. Rev. 150. 22 Further Hearing [F.H.] 7048/97 Anon. v. Minister of Defense, 54(1) P.D. 721 (12.4.00). 23 Emanuel Gross, ‘Human Rights, Terrorism and the Problem of Administrative Detention in Israel: Does a Democracy have the Right to hold Terrorists as Bargaining Chips’ (2001) 18 Ariz. J. Int’l. & Comp. L. 721. 24 The decision overturned the Court’s previous ruling in the same case, which held that the welfare of Israeli captives and missing persons was a matter of state security and that Lebanese detention was justified for there were no other means to achieve the desired result, which would cause less damage to the Lebanese detainees’ personal freedom. Administrative Detention Appeals [A.D.A.] 10/94 Anon. v. Minister of Defense, 53(1) P.D. 97 (13.11.97).

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Minister of Defense to order the detention of a persons that state security or public safety requires their detention. The majority of the Court reasoned that the Detention Law does not authorize the detention of a person, who does not himself constitute a threat to national security and that this interpretation reflects the proper “delicate” balance between the rights of the individual to freedom and dignity and the interests of national security and public safety. The dissenting opinion rejected the claim that the detainees were “hostages” or “bargaining chips” in negotiations. Instead, it argued that the detainees as Hezbollah fighters, have knowingly and deliberately tied their fate to the fate of the war against Hezbollah, thus the detention did not violate the principle of personal responsibility. Consequent to this ruling, other detainees petitioned the Supreme Court asking their release, one of which, Mustafa Dirani,25 personally culpable for the kidnaping and holding of the missing IDF navigator Ron Arad, arguing that they too do not pose a specific threat to Israel’s national security.26 The Court dismissed the appeals on the ground that the State has established the appellants personally constitute a danger to national security. However, it was clear to many that maintaining their detention on the ground of personal threat could not be sustained for long. It should be noted that petitions by POWs’ family members to the Israeli Supreme Court at that time, attempting to block the release of the Lebanese, were rejected.27 However, President Judge Barak noted in obiter that the Knesset (Israel’s parliament) can legislate a law that will allow the continuation of the other detainees from Lebanon due to their definition as unlawful combatants and that such a legislation would not be perceived as an attempt to bypass the Court’s ruling.28 In light of these developments, and in the absence of an effective legal tool to hold enemy combatant, while terrorist organizations are allowed to hold Israeli soldiers indefinitely, the Knesset enacted the Detention of Unlawful Combatant Law of 2002 (hereinafter: Unlawful Combatant Detention Law). According to the Unlawful Combatant Detention Law, the IDF Chief of Staff is authorized, pursuant to an investigation and a hearing, to order the detention of unlawful enemy combatant, whose release constitute a threat to national security. Section 7 of the Unlawful Combatant 25 Mustafa Dirani was the “head of security” of the Lebanese Shiite Muslim Militia Amal, associated with Syria, when his men captured Cap. Ron Arad, an Israeli air force navigator who was shot down over southern Lebanon in October 1986. Up until May 1988, Dirani was responsible for the captivity and interrogation of Arad. In 1987, Dirani started contacts with Iranian sources, and was eventually expelled from Amal and established his own militia group, the “Believing Resistance”. According to Israeli intelligence sources, Dirani and his group either sold Arad to Iranian forces or allies. In the night of May 21, 1994 Israeli commandos abducted Dirani from his house in the Biqa’ Valley in central Lebanon. While Israel knew that Dirani no longer held Arad, security authorities hopped he possessed vital information about the missing navigator that may lead to his whereabouts. At that time, Israel also hoped that Dirani may be used as a valuable “bargaining chip” for negotiations about Arad’s release. Uri Sagie, Lights Within the Fog (Yedioth Ahronoth Books, 1998); Ronen Bergman, By Any Means Necessary: Israel’s Covert War for Its POWs and MIAs (Kinneret, 2009). 26 A.D.A. 5652/00 Shayke’ Abd-al-Karim ’Ubayd v. Minister of Defense, 55(4) P.D. 913. 27 H.C.J. 2967/00 Arad v. The Knesset, 54(2) P.D. 188; H.C.J. 10154/03 Arad et al. v. Knesset, not published. 28 Ibid 191.

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Law establishes a presumption of threat emanating from a person which is a member of a terrorist organization. The detention is not limited in time, although it is subject to judicial review periodically (every six months). The constitutionality of the Unlawful Combatant Detention Law was appealed soon after its promulgation.29 At first, the Court refused to decide the claim regarding the unconstitutionality of the Unlawful Combatant Detention Law after the appellants were released in a prisoner exchange deal.30 Three years later in a landmark decision—C.A. 6659/06 Anon. v. State of Israel31 —the Court rejected the claim of unconstitutionality. However, the Court interpreted the new legislation in light of both Israel’s Basic Law: Human Dignity and Liberty and the International laws of wars.32 The Court held that “unlawful combatant” should be treated as a subset of “civilians”, protected by the Fourth Geneva Convention. Thus, the Court rejected the government’s claim that the Unlawful Combatant Detention Law establishes a new classification meant to provide for the detention of members in a terrorist organization under the modern reality of asymmetric war. Instead, the Court explained that the Convention permits detention of civilians where detention is absolutely necessary to the security of the state and is subject to judicial review. Moreover, the Court held that the Unlawful Combatant Detention Law established an “ordinary” administrative detention mechanism to be used beyond Israel’s borders (i.e. in Gaza and Lebanon but not in Israel or the West Bank), and which requires the showing of an “individual threat” emanating from the detainee. By interpreting the Unlawful Combatant Detention Law as an extraterritorial preventative detention tool, to be used along with the domestic Detention Law arrangement, the court dodged the hard question of “personal responsibility” versus “guilt by association” of persons belonging to terrorist organizations. Moreover, the Court totally ignored the fact that the Unlawful Combatant Detention Law was meant to legitimized the detention of unlawful enemy combatants in order to facilitate the release of Hostages and POWs. By interpreting the law to provide ordinary detention, the Court avoided the social costs (in legitimacy terms) associated with invalidating primary legislation. Since this decision, the Court reviewed numerous administrative detentions appeals according to the Unlawful Combatant Detention Law—most of which in regard to members of Hamas and Islamic Jihad from the Gaza Strip. In all these

29 C.A.

3660/03 Shayke’ Abd-al-Karim ’Ubayd v. State of Israel, (8.9.05). For an early critique of the Unlawful Combatant Detention Law see the Position Paper prepared by the Israel Democracy Institute: Hilly Modrik Even-Khen, Unlawful Combatants or Unlawful Legislation? On the Unlawful Combatant Law 2002 (Supervised by Mordechai Kremnitzer, the Israeli Democracy Institute, 2005). Even-Khen & Mordechai Kremnitzer argued that the Unlawful Combatant Detention Law did not respect the limitation imposed by Israel’s Basic Laws, which seek to insure minimal interference with human liberty, and are also inconsistent with the conventions of international law. 30 Greg Myre, ‘Israel Agrees to Free Arabs in a Swap with Militants’ The New York Times (25 January 2004); Ian Fisher, ‘Hezbollah Hails Trading of Prisoners’ The New York Times (26 January 2004). 31 62(4) 329 (11.6.2008). 32 Ibid. See also Cole (n 3) 736.

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cases the Court required the detainee himself posed a threat to the State.33 Thus, the implementation of Unlawful Combatant Detention Law can be outlined as follow: (1) The legal ground for temporary moving suspected terrorists from the zone of combat during warfare34 ; (2) The normative base for detaining terrorist operatives that their interrogation has not provided sufficient evidence for criminal indictment35 ; (3) The ground for a continued incarceration of convicted terrorists after completing their sentences, who pose a unique threat to state security if released.36 All that said, it is terribly important to note that since its enactment the Unlawful Enemy Combatant Detention Law was not used in order to achieve or detain “bargaining chips”, to be used in negotiations over the release of hostages and POWs held by terrorists groups in Gaza and Lebanon.

4 The Court’s Jurisprudence in a Military and Political Context: The Middle Eastern Meat Market A dominant perception among detention scholars is that “Israeli Courts have put in place a strong, robust, system of judicial checks”,37 and that although the terrorist threat has “intensified, there has been no major effort to flout these safeguards openly or to overturn them by legislation”.38 In this section I wish to consider the Court’s jurisprudence regarding detentions in a military and political context. Namely, the weaponization of hostage taking by terror groups and the social fabric of the Israeli society. The first time that Israel exchange prisoner with a terrorist organization was in the beginning of the 1970s and the price tag was “one for one”.39 The 1970s have shaped the tactic of “hostage taking” as the preferred weapon of choice of terrorist 33 Crim. A. 7446/08; ADA 6169/10 Sahid v. State of Israel, 31.8.10; ADA 1510/09 Atamana v. State of Israel, 2.4.09; ADA 6958/09 Anonymous v. State of Israel, 14.9.09; ADA 886/10 Atamana v. State of Israel, 2.3.10; ADA 6165/09 Shahade Sofi v. State of Israel, 31.8.09; ADA 2283/10 Shahade Sofi v. State of Israel, 6.6.10; ADA 9256/09 Anonymous v. State of Israel, 22.11.09; ADA 5273/09 Pariya v. State of Israel, 22.7.09; ADA 6961/09 Anonymous v. State of Israel, 14.9.09; ADA 6574/09 Abu Awone v. State of Israel, 30.8.09. See also Shmuel Ronen,The Unlawful Enemy Combatant Detention Law: The Application in the Gaza Strip (Bar-Ilan University, 2015). 34 Anon. (n 31) (President Judge Beinish). 35 Sahid (n 33); ADA 2595/09 Doctor Hamadan Zufi v. State of Israel, not published; ADA 3313/11 Sarsak v. State of Israel, not published. 36 Anon. (n 31); ADA 3410/09 Anon. v. State of Israel, not published; ADA 6409/10 Abdala Amudi v. State of Israel, not published. 37 Schulhofer (n 11) 1931. 38 Ibid 1931. 39 On January 1, 1970, a night watchman in a village in northern Israel, who was abducted by the Palestinian Fatah organization. More than a year later the night watchman was freed in exchange for Mahmoud Hijazi, a Fatah prisoner in Israel. Hijazi was wounded and captured in Fatah’s first

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groups around the world in general, and in the Middle East in particular.40 This was a win-win situation regardless whether the terrorist stated goals and demands (i.e. the release of prisoners) were met, since the primary goal of world attention was achieved by the act of hostage taking itself. In the beginning of the 1980s the price tag of prisoners exchanged increased dramatically, 9 soldiers for almost 6000 detainees and prisoners—including some high profile arche-terrorists.41 It should also be noted that during this period the pressure placed by the family members of POWs and MIAs on the Israeli government and the heads of the IDF to release their loved ones increased dramatically also. This fact should probably be attributed to changes in the Israeli society, the weakening of the collective political ideologies and rise of liberal forces that placed the individual at the center of attention. In the middle of the 1980s the situation changed again and another adversary has appeared: Shiite fundamentalist Islamism. Iran hoped to export its Islamic revolution to Lebanon, and both Syria and Iran sought to use the Shi’ites as proxy force against Israel. With the Support of Damascus, Teheran helped organize, arm, train, inspire and unite various Shi’ites groups into the movement that became known as Hezbollah— “party of God”.42 It is important to understand that Iran and Hezbollah have used hostage taking and kidnapping as a weapon from the beginning. Utmost importance, to secure the release of the fellow comrades and family relative. But kidnapping served also their political purposes: first, they focused world’s attention the Shiite organization and its cause; second, they terrorized foreign nationals in Lebanon, which led many of them to flee the country.43 Hezbollah hostage taking tactic were adjusted to western political reality, taking advantage of the weakness of western democracies by using the media and public opinion to pressure decision-makers in the west. Similar to other terrorist groups the Hezbollah justified the use of hostage taking by focusing on the imbalance between the “western imperialist countries” military attack on Israel, January 1, 1965, and sentenced to death, which was commuted on appeal to 30 years in prison. Bergman (n 25) 23–24. At first, The Israeli government placed the responsibility for the kidnapping on the Lebanese government and the IDF retaliated a day after by blowing up a Lebanese radar position and taking nine Lebanese soldiers and 12 civilians captive. However, since the abduction of the night watchman was by the Palestinian Fatah organization, they refused a deal, which will not include their members. Ibid 24–26. 40 Ibid 27. 41 The major exchanges in the 1980s were the result of a military blunder. On September 3, 1982, two Palestinian fighters outsmart an IDF outpost during the first Lebanon War. Eight IDF soldiers surrendered without a fight and were taken prisoners. Six of the prisoners were held by the Fatah, while the remaining two were held by another Palestinian faction, led by Ahmad Jibril. Six Israeli prisoners were released in exchange for more than 4700 Palestinians and Lebanese. The remaining two soldiers, as well as a third IDF prisoner were released, in an exchange known as the “Jibril deal” for 1150 Palestinian prisoners and detainees in Israeli jails. 42 Daniel Byman, ‘Should Hezbolla Be Next?’ (2003) 82 Foreign Aff 54, 57. Although Hezbollah is a Lebanon based group—with Bekaa Valley as its strong-hold, it has cells on every continent, and its highly skilled operatives have committed horrifying attacks as far away as Argentina. Before September 11, 2001, it was responsible for more American deaths than any other terrorist organization. 43 Bergman (n) 167.

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and the oppressed Islamic states in the middle east. However, Hezbollah’s complete disregard to basic humanitarian needs has become well-known through out the middle east. As a matter of fact, in order to increase the magnitude of its hostage taking effect, Hezbollah engaged a psychological warfare against the hostages’ families (not divulging basic humanitarian information and many time engaged in deception) calculating that it would cause a rift between the families and the state’s political leadership—which often was very successful since it was built on the requirement to balance private interest and the common good. As aforesaid in the late 1980s and the beginning of the 1990, Israel tried to counter Hezbollah’s tactic of hostage taking by resorting to high profile prisoner taking like Dirani and Ubeyed. This tactic was successful against the standing armies of its Arab neighbors,44 but useless against Hezbollah, since the “bargaining chips” achieved were of no importance to the leaders of Teheran—the sponsors of Hezbollah. And this is were the legal battle in Israel itself stated also to take affect and prevented or at least hampered any new initiatives to achieve better human assets to a trade deal with Hezbollah. The crucial point is that Palestinian terror groups were now inspired by Hezbollah hostage taking tactics. On June 25, 2006 Hamas terrorists penetrated Israel through an underground tunnel, emerging near the Israeli farming village of Kerem Shalom. They attacked an Israel Defense Forces (IDF) outpost and a tank stationed there. Two soldiers were killed, while a third soldier, Gilad Shalit, was captured and taken into the Gaza Strip.45 In response, the IDF apprehended dozens of Hamas personnel in the West Bank, among them members of the Palestine Authority cabinet and Legislative Assembly.46 In addition, the IDF carried out a series of operations in the Gaza Strip, and fighting continued for five months before a ceasefire was achieved. While Hamas forces suffered hundreds of losses, the military goal of releasing Shalit was not achieved.47 At the end of five years negotiations, Israel and Hamas agreed to exchange more than 1000 Palestinian prisoners for Shalit, who has been held in Gaza.48 While the conflict in the Gaza Strip following Shalit abduction was still raging, a new front opened in the Lebanon border. On July 12, 2006, Hezbollah staged an unprovoked attack across the Lebanon Israel Border in which two Israeli soldiers

44 On June 21, 1972 an Israeli Commando unit participated in operation Crate 3, an operation to kidnap 5 Syrian intelligence offices to facilitate the release of 3 Israeli airmen that were held captive by Syria. 45 Daniel Friedmann, The Purse and the Sword: The Trials of Israel’s Legal Revolution (Oxford University Press, 2016). 46 Ian Fisher & Steven Erlanger, ‘Israelis Batter Gaza and Seize Hamas Officials’ The New York Times (Gaza, 29 June 2006). 47 Sleman Al-Shafhe, Captive: A View from Gaza (Yedioth Ahronoth Books, 2009). 48 Ethan Bronner, ‘Israel and Hamas Agree to Swap Prisoners for Soldier’ The New York Times (Jerusalem, 11 October 2011); Ethan Bronner & Stephen Farrell, ’Israeli Soldier Swapped for Hundreds of Palestinians’ The New York Times (Jerusalem, 18 October 2011).

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were taken hostage and three soldiers were killed.49 Five more soldiers were killed when IDF forces entered Lebanon in an attempt to rescue the taken Israeli soldiers. That very day Israel launched a full scale military attack on Lebanon, which came to be called the Second Lebanon War. However, explicit goal of releasing the captured soldiers was not achieved by force but rather by a prisoner exchange.50 The world Known publicist Ronen Bergman argued that: “if we follow the sequence of dealing with prisoners and MIA affairs, it appears that the sacred principle of ‘We don’t abandon soldiers in the field’ has turned on its maker. Only in recent years has the principle become the excuse, or at least trigger, for two failed wars. From a painful humanitarian issue, a natural byproduct of wars and the ongoing conflict, the affairs of Israel’s various prisoners and MIAs and the attempts to move them out of a state of stasis have often become a dominant factor that itself makes history and leads to escalation of the conflict.”51 However, from a legal point of view, we are not exempt of wondering whether the lack of legal tools to counter the terrorist tactics have also contributed to the escalation and to the fact that hostage taking have become a strategic problem and a trigger for war.

5 Discussion The argument for detaining unlawful enemy combatants as bargaining chips in the contexts of counterterrorism and counterinsurgency overlap a great deal with the argument for detaining prisoners of war in the context of a conventional war.52 That is, the starting point of discussion is the treatment of POWs, and we should rethink this basic concept of our jurisprudence of war and assess whether it can survive and apply it to a world besets with nontraditional threats that terror.53 But the detention of unlawful enemy combatants to be used as a “bargaining chip” has its own set of difficulties and dangers that require detailed consideration and judgment. Under the international law of armed conflict,54 individual enemy fighters can be captured and held for the duration of hostilities without a trial. They and their commanders are not personally responsible for the attack, since they acted in the name of the nation.55 They are not criminals but rather agents of an enemy 49 Zachary Myers, ‘Fighting Terrorism: Assessing Israel’s Use of Force in Response to Hezbolla’ (2008) 45 San Diego L Rev 305. 50 Rory McCarthy, ‘Hizbullah Leader: We Regret the Two Kidnappings that Led to War with Israel’ The Guardian (Jerusalem, 28 August 2006). 51 Bergman (n 25). See also Hamed Mousavi, ‘The Israel-Lebanon War of 2006 and the Failure of US Foreign Policy’ (2015) J Pol & L 130. 52 The main privileges of POW under international treaty provisions, prisoners of war are required to disclose only their name, rank, and serial number. Fletcher (n 3) 6. 53 Fletcher (n 3) 6. 54 See the Hague Convention of 1907 which provide that after “the conclusion of peace, the repatriation of prisoners of war shall be carried out as quickly as possible.” 55 Tamar Meisels, ‘Combatants—Lawful and Unlawful’ (2007) 26 L & Phil 31, 35.

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power. Thus, the paradigm of conventional war is based on collective rather than personal responsibility. If the individuals detained as combatants engaged in fighting for the enemy, they cannot be tried for acts of violence that are normal and standard in fighting wars, and they must be released when hostilities cease.56 As combatants, they may be liable for war crimes, but not for violations of the criminal code of the country they have attacked.57 Indeed, over the past millennium some prisoners of war were tried for crimes under international law, but the vast majority were simply released, either while hostilities were still ongoing or shortly after hostilities came to an end, and were repatriated to their home countries or exchanged for prisoners by still deeply distrusted enemies.58 In other words, POWs are to be released by the states immediately after the cessation of hostile activity.59 The argument for the military detention of prisoners of war is built upon war’ two features: first, conventional wars are intensely coercive on the individual soldiers and commanders, who are required to participate in the war regardless of their personal will. The immunities and privileges accorded to soldiers from criminal prosecution, acknowledge this and enables them to stop fighting without being killed.60 Second, conventional wars are intensely collective experience, and while they are fought by individuals, these individuals are not engaged in their own self-defense but rather in the defense of the collective, to which they attach great value.61 Thus, POW’s rights, immunities and privileges are accorded only to those who engaged in this collective activity. When conventional fighting ends, we immediately hold military-to-military talks to discuss terms for the cessation of hostilities and the return of captured prisoners. Prisoners exchange are made, although some of these prisoners may still harbor violent intentions and abilities to harm our country. This is because we acknowledge that the driving force of conventional war is collective rather than personal will. In this sense the detention of POWs is based on the mutual understanding that war is a collectivizing experience. The detention of unlawful enemy combatants arises, mainly, in the context and conditions of asymmetry war. The theory and practice of POWs detention was intended to deal with what we now call “conventional” warfare—were two armies are engaged and each one is pretty much like the other in organization and armaments. In the conditions of asymmetry, by contrast, there is only one army, organized, armed and disciplined by a modern state.62 On opposite sides of the barricades are a

56 However, it is far from clear, as domestic law is concerned, who has the authority to end wartime detention, see Deborah N. Pearlstein, How Wartime Detention Ends, 36 Cardozo L. Rev. 625 (2014). 57 Fletcher (n 3). 58 Pearlstein (n 56). 59 The widely accepted approach refers to a situation where neither party expects in good faith a continuation of hostile activities. See Yoram Dinstein, The Laws of War (Shoken, 1983) 124; Zachary (n 9) 391. 60 Walzer (n 4) 340. 61 Ibid 341. 62 Ibid xiv.

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sovereign state or a combination of sovereign states, on one side, and non-state actor 63 on the other side of the barricades.64 Under the circumstances of asymmetric war, given the overwhelming power of the army and the weakness of the insurgents, the only protection the insurgents have is the cover of their own people’s home and neighborhoods and by assimilating among the civilian population. Thus, asymmetric war commonly involves an enemy whose fighters could not be identified with similar precision and is unlikely to end soon. Alternatively, the insurgents may take advantage the fact that the regular army follows the recognized rules of war (in regard to distinguishing civilians from soldiers and in regard to the treatment of POWs). It is terribly important to notice that the insurgents’ tactics create reasonable disagreements as to the way they should be treated by the regular army. And the basic precept of moral equality of the soldiers that lies at the heart of the laws of war is put into question. Some may view the insurgents as war criminals that should be tried for their crimes, while other will question the collective or coercive element of action, which as explained above is the basis for a military detention of POWs. Of course, the attempt to deal with the insurgents by the ordinary tools of criminal justice is likely to fail. Since the focus under the criminal justice procedures is on the individual culprits. The individual acts on his own, not as an agent of the collective. The individual is incarcerated according to his personal guilt since he was given the opportunity to correct his behavior in light of the general moral norms of society. And the criminal justice procedure is deliberately tilted in favor of defenders. Under these terms, and taking into account the likelihood that the insurgents will capture soldiers and civilians of the other side, and breach the rules concerning the treatment of POWs and MIS, the disposition of unlawful enemy combatants becomes the subject of intense public attention, particularly to the extent the fate of the state’s own prisoners’ lives are at stake. One might except the state to prioritize the repatriation of especially young, old, and sick prisoners. Finally, there are two typical understandings of associative culpability I wish to refute: the first expressed by Hannah Arendt where everyone guilty none is. The second, is that every member of the group is guilty in the same sense or manner. Both associative understandings are wrong, when one take into account war’s two features: coercion and collectivism. The coercions element of war is not equally distributed on participating soldiers and commander—high ranking commanders and officials are less coerced to participate in the war than low level commander or field soldiers. This is of course generally speaking, and a judicial determination could help to determine the amount of culpability that should be assigned to a specific person in order to establish his period of detention. The collective element could also be measured by the court, and can serve an ameliorative or humanistic purpose of mitigating detention. The distinction, as seen above, between personal and collectivist responsibility is not sharp when it comes to asymmetric wars, but a matter of degree. 63 Paul

Gilbert, New Terror, New Wars (Edinburgh University Press, 2003) 7–8. Meisels, ’Combatants—Lawful and Unlawful’ (2007) 26 L & Phil 31.

64 Tamar

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6 Conclusion The detention of unlawful enemy combatant is not an act of government alone. This is a collective endeavor of one nation against another non-state collective. Understanding the coercive and collective nature of this struggle is highly important in order to facilitate the judgments that legislators, public officials and judges make about detention policies as well as individual detention.

References Ackerman B (2004) The emergency constitution Yale LJ 113:1029 Barak E (1999) Under cover of darkness: ten year game with human lives as Bargaining Chips and the supreme court. Israel J Crim Justice 8:77 Ben-Naftali O, Gleichgevitch SS (2000) Missing in legal action: Lebanese hostages in Israel. Harv Int’l LJ 41:185 Bergman R (2009) By any means necessary: Israel’s covert war for Its POWs and MIAs. Kinneret Brennan Jr WJ (1988) The quest to develop a jurisprudence of civil liberties in times of security crises. Isr YB Hum Rts 18:11 Bronner E (2011) Israel and Hamas agree to swap prisoners for soldier. The New York Times. Jerusalem Bronner E, Farrell S (2011) Israeli soldier swapped for hundreds of Palestinians. The New York Times. Jerusalem Byman D (2003) Should Hezbolla be next? Foreign Aff 82:54 Chesney RM (2011) Who may be held? Military detention through the Habeas lens. BC L Rev 52:769 Cole D (2009) Out of the shadows: preventative detention, suspected terrorists, and war. Cal L Rev 97:693 Cole D (2002) Enemy aliens. Stan L Rev 54:953 Danner AM (2007) Defining unlawful enemy combatant: a centripetal story. Tex Int’l LJ 43:1 Dinstein Y (1983) The laws of war. Shoken, p 124 Dinstein Y (2003) Unlawful combatancy. Int’l L Stud 79:151 Dworkin R (2006) Is democracy possible here? Princeton University Press Fallon RH, Meltzer DJ (2007) Habeas corpus jurisdiction, substantive rights, and the war on terror. Harv L Rev 120:2029 Farrel BR (2010) Habeas corpus in times of emergency: a historical and comparative view. Pace Int’l L Rev Companion 74 Fisher I (2004) Hezbollah hails trading of prisoners. The New York Times Fisher I, Erlanger S (2006) Israelis batter Gaza and seize Hamas officials. The New York Times. Gaza Fletcher GP (2002) Romantics at war: glory and guilt in the age of terrorism. Princeton University Press Fletcher GP (2002) On justice and war: Contradictions in the proposed military tribunals. Harv JL & Pub Pol’y 25:635 Friedmann D (2016) The purse and the sword: the trials of Israel’s legal revolution. Oxford University Press Gilbert P (2003) New terror, new wars. Edinburgh University Press Ginbar Y (2010) Why not torture terrorist? Moral practical and legal aspects of the Ticking Bomb justification for torture. Oxford Univ Press

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Gletzer JA (2012) Of suspension, due process, and Guantanamo: the reach of the fifth amendment after Boumediene and the relationship between Habeas corpus and due process. U Pa J Const L 14:719 Gross E (2001) Human rights, terrorism and the problem of administrative detention in Israel: does a democracy have the right to hold terrorists as Bargaining Chips. Ariz J Int’l & Comp L 18:721 Guruli N (2014) A justifiable self-preference? judicial deference in post-9/11 control oder and enemy combatant detention jurisprudence. Cambridge J Int’l Comp L 3:884 Harris GC (2003) Terrorism, war and justice: the concept of unlawful enemy combatant. Loy LA Int’l & Comp L Rev 26:31 Jinks D (2004) The decline significance of POW status. Harv Int’l LJ 45:367 Kovarsky L (2013) A constitutional theory of Habeas power. Va L Rev 99:753 Maxwell MDM, Watts SM (2007) Unlawful enemy combatant: status, theory of Culpability or neither. J Int’l Crim Justice 5:19 McCarthy R (2006) Hizbullah leader: we regret the two kidnappings that led to war with Israel. The Guardian. Jerusalem 28 McLoughlin JP, Noone GP, Noone DC (2009) Security detention, terrorism and the prevention imperative. Case W Res J Int’l L 40:463 Meisels T (2007) Combatants—lawful and unlawful. L Phil 26:31 Modrik Even-Khen H (2005) Unlawful combatants or unlawful legislation? On the unlawful combatant law 2002 (Supervised by Mordechai Kremnitzer, the Israeli Democracy Institute) Mofidi M, Eckert AE (2003)Unlawful combatant or prisoners of war. Cornell Int’l LJ 36:59 Morrison TW (2009) The middle ground in judicial review of enemy combatant detentions. Willamette L Rev 45:453 Mousavi H (2015) The Israel-Lebanon war of 2006 and the failure of US foreign policy. J Pol & L 130 Myers Z (2008) Fighting terrorism: assessing Israel’s use of force in response to Hezbolla. San Diego L Rev 45:305 Myre G (2004) Israel agrees to free Arabs in a swap with militants. The New York Times Pearlman AR (2016) Captivity and the law: hostages, detainees, and criminal defendants in the fight against terrorism. ILSA J Int’l Comp L 22:461 Pearlstein DN (2012) Detention debates. Mich L Rev 110:1045 Pitts-Kiefer SA (2003) Jose Padilla: enemy combatant or common criminal? Vill L Rev 48:875 Sagie U (1998) Lights within the fog. Yedioth Ahronoth Books Sassoli M (2006) Query: is there a status of Unlawful Combatant? Int’l L Stud Ser US Naval War Col 80:57 Schulhofer SJ (2004) Checks and balances in wartime: American, British and Israeli experience. Mich L Rev 102:1906 Sleman Al-Shafhe (2009) Captive: a view from Gaza. Yedioth Ahronoth Books Tribe LH, Gudridge PO (2004) The anti-emergency constitution. Yale LJ 113:1801 Tushnet M (2003) Defending Korematsu?: Reflections on Civil Liberties in Wartime (2003) Wis L Rev 273 Tushnet M (2005) Controlling executive power in the war on terrorism Harv L Rev 118:2673 Tyler AL (2008) Suspension as an emergency power Yale LJ 118:600 Tyler AL (2012) The forgotten core meaning of the suspension clause. Harv L Rev 125:901 Vladek SI (2011) The new habeas revisionism Harv L Rev 124:941 Waldron J (2015) Death squads and death lists: targeted killing and the character of the state. New York University public law & legeal theory research paper series, working paper 519 Walzer M (2004) Arguing about war. Yale University Press Walzer M (2015) Just and unjust wars: a moral argument with historical illustrations, 5th edn, Basic Books Waxman MC (2009) Administrative detention of terrorists: why detain, and detain whom? J Nat’l Sec L & Pol’y 3:1

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Wittes B (2011) Detention and denial: the case for candor after Guantanamo. Brookings Institution Press Zachary S (2005) Between the Geneva conventions: where does the unlawful combatant belong? Isr L Rev 38:378 Zamir I (1983) Administrative detention: directives of the attorney general on the matter of administrative detention under the emergency powers (detention) law, 5739-1979. Isr L Rev 18:150

Dr. Joshua Segev is an Associate Professor of Constitutional Law and Philosophy of Law at the Netanya Academic College School of Law and a Visiting Professor at the Herzog Faculty of Law Bar-Ilan University.

The Law Governing the Right of Enemy Aliens’ Access to Courts Roy Peled, Liav Orgad, and Yoram Rabin

Abstract For centuries courts of a nation engaged in war prevented aliens residing in the enemy’s territory from seeking redress from them. As the recognition in the fundamental right of access to courts grew over the centuries, judges carved more and more exceptions to this rule. The changing nature of warfare in the 21st century presented further challenges to this traditional rule. Nevertheless, courts across democratic jurisdictions have thus far refrained from defining an overall alternative rule. Rather, they have resorted to solving specific cases through narrowly tailored decisions. After surveying the developing jurisprudence in regard to access of enemy aliens to courts, this chapter suggests an alternative rule compliant with contemporary human rights law and relevant to 21st war realities. It goes on to consider why courts are hesitant to declare the traditional law void and what can be learned from this hesitance as to the interaction between war and legal institutions.

R. Peled (B) · Y. Rabin College of Management, Haim Striks Law School, Rishon LeZion, Israel e-mail: [email protected] Y. Rabin e-mail: [email protected] L. Orgad WZB Berlin Social Science Center, Berlin, Germany e-mail: [email protected] Robert Schuman Centre for Advanced Studies, The European University Institute, Fiesole, Italy Berlin Graduate School for Transnational Studies, Berlin, Germany Lauder School of Government Diplomacy and Strategy, Interdisciplinary Center (IDC), Herzliya, Israel © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_10

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1 Introduction It was settled for centuries that as a matter of law, enemy aliens, when residing in enemy territory, cannot seek redress in courts of the country with whom their own country is engaged in warfare. This law was accepted across jurisdictions and practiced through many instances of military confrontations, at times prolonged ones (such as during WWII). However, when 21st-century democratic governments facing legal challenges by enemy aliens, asked courts to apply this law, the latter found themselves in an uneasy position. The traditional rule does not easily lend itself to practice in modern democracies who by definition see an individual’s access to courts as a fundamental human right. Furthermore, the changing nature of warfare in the 21st century changes with it the concrete implications of this law. While courts across such democracies seem in agreement that the old rule cannot be patently implemented, they have refrained from defining an overall alternative rule. Rather, they have resorted to solving specific cases through narrowly tailored decisions, a path that in itself warrants analysis. This article argues for a new law governing the right to access to courts by enemy aliens. Our view is that the old rule must be rested for a new one that reverses the default. 21st century standards require that any individual be given “her day in court”. This democratic axiom is not concerned with the national identity of the individual. National security concerns as well as objection to abuse of legal proceedings justify some narrowly tailored exclusions to this general rule in relation to specific enemy aliens. The discussion proceeds as follows: Sect. 2 will present the conceptual framework in which the basic historical rule against enemy aliens’ access to courts was crystallized and how it developed over the centuries across four different jurisdictions—England, France, the United States and International Law. This overview will show that little has changed in the formulation of the law, despite growing awareness of its problematic aspects, especially in international law. Section 3 will discuss relevant rulings by high courts of western democracies since the beginning of the 21st century. Few courts faced these matters in the context of the “global war on terror”. When they did, they avoided overall review of the traditional rule. We will discuss in-depth a 2014 ruling by Israel’s Supreme Court, which we believe is the most comprehensive judicial decision on the matter to date, despite several shortcomings. In the context of the modern rulings, we will also discuss possible reasons for the hesitation of courts to declare the traditional law null and void. Section 4 will present the current law as we believe can be extracted from these recent rulings. It will also outline those issues that remain unsettled and await further discussion. Our conclusion will suggest initial thoughts for those discussions.

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2 Conceptual and Historical Perspective It comes almost without saying that access to courts is a fundamental human right.1 There may be moral, legal and interpretive disputes over questions such as the scope of the right, its procedural versus substantial nature and its content. However, it is undisputed among jurists in democratic countries that individuals suffering from a legal injury must have available for them reasonable procedures to approach an independent and impartial court and seek remedy through a fair trial. The multitude of justifications for this right includes inter-alia, its necessity for the protection of any civil right (Leubsdorf 1984), and hence its being a sine-qua-non for a democratic polity (Michelman 1974). However, democratic politics have for ages limited enemy alien’s entitlement to this right. This part will follow the conceptual background to these limitations. Like practically any other right, the right to access to courts is not absolute. Where its justifications are present in the strongest manner, one may expect its strongest applications. In other circumstances, said justifications may be weaker and call for balancing between access to courts and other rights. Under these ages-old givens, legal systems have developed their jurisprudence on the question of whether they should allow enemy aliens access to their courts. Most systems have rejected two alternative extreme notions—one, that enemy aliens enjoy unlimited access to courts; the other, that enemy aliens are categorically denied access to courts. In reality, most countries take a middle path—they provide enemy aliens with limited procedural access to courts.2

2.1 The Conceptual Framework Limiting Enemy Aliens’ Access to Courts Several significant justifications compete in addressing this issue. Some support enemy aliens’ right to access to courts. These include: 1. The rule of law—war is not

1 See:

Article 8 of the Universal Declaration on Human Rights, 1948 (“Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”); Article 14 of International Covenant on Civil and Political Rights, 999 UNTS 171, 1966 (“everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal…”); Article 6(I) of the European Convention on Human Rights (“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”). 2 This article deals mainly with enemy aliens and unlawful enemy combatants. These categories are governed by the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949). There is no detailed discussion regarding enemy combatants or prisoners of war, which are governed by the Third Geneva Convention relative to the Treatment of Prisoners of War (1949).

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conducted in a legal vacuum and should not be used to limit courts’ capacities.3 2. Deterrence—closing the courts’ doors is likely to signal to governments of combating countries and their security agencies that their actions can go unsupervised and that wrongdoing is not likely to bear costs of different sorts. 3. Policy considerations— legal proceedings generate trust in the legal systems, and if successful in court, also in the government’s own actions. 4. Human rights’ considerations—Lack of access to courts means a lack of justice. It is often the only route of litigants to enforce their rights. It may be argued that other considerations point at the same time towards the need to limit (or deny altogether) enemy aliens’ access to courts. These include 1. Preventing advantages from the enemy as if it wins a legal battle against the country it may enjoy several benefits, some concrete such as the release of enemy captives or pay of compensations and legal fees, and other less material but no less important such as a morale boost or points gained in international public opinion. 2. Economic considerations work against the allocation of state funds, especially as constrained as in times of war, to serve the needs of the enemy. 3. Practical and evidentiary difficulties, which in extreme conditions may be tough to overcome. 4. Policy considerations—the fear that legal proceedings themselves will adversely affect the country’s soldiers in combat and at the same time aid the enemy in the collection of valuable information that is disclosed in the courts of a court case. As mentioned above, faced with these competing considerations, most legal systems have chosen a middle path. Common law initially took the radical view that “enemies, not being looked upon as members of our society, are not entitled during their state of enmity to the benefit or protection of the laws” (Blackstone 1765). As we shall now describe, this notion was early relaxed. Common law from its foundation and some three centuries later, viewed enemy aliens as not entitled to sue in its courts (McNair 1915). This was progress from an even harsher rule according to which they were ex-lex, and thus legal recourse was prevented from them altogether (McNair 1915). An individual who was born as a loyal to a king in enmity with the King of England, could not seek recourse in his majesty’s courts even if he resided in England, as explained in a 1552 case, “for the Court will not suffer that any enemy shall take advantage of our law.” (McNair 1915). This general rule was reiterated unequivocally as late as the end of the 18th century. Justice Scott in the Hoop case (1799) ruled that “In the law of almost every country, the character of an enemy alien carries with it a disability to sue,” that common law “applies this principle with great rigor.” (McNair 1915). In short, an enemy alien was considered “totally ex-lex!” (Roxburgh 1920). At the time there was one main deviation from the rule mentioned above. Enemy aliens by birth were not considered such if they have “come into the realm by the king’s safe conduct.” This exception is both geographical and substantial. It is geography-based as the alien needs to be based in England at the time of suit. However, it is, more importantly, substantial because it is assumed that if the king 3 On

the role of courts in national emergencies see in this volume: Barak, Human Rights in Times of Terror, and Tassopoulos, Political Emergencies as Challenges to the Impartiality of Public Law.

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offered the alien “safe conduct,” this was for a reason such as his coming into the realm “with flag of truce.” In any case for purposes of legal protection, the enemy alien’s coming into England had to be “an act of public authority” (Roxburgh 1920), and thus assumingly, in the interest of the king. The rather rigid common-law rule has gone through major modifications in the period stretching from before the Hoop case to the end of the 20th century. We will see that it has been significantly relaxed. However, for purposes of our conceptual framework, it is fit to discuss here why the principle embodied in this rule, even as later modified, is incompatible with 21st-century law or warfare.

2.2 England and the Common Law As mentioned above, the common law initially viewed an enemy alien as “ex-lex.” It carved out of this general rule those alien enemies who entered the realm under the king’s protection. However, it was quite early on that common law courts’ found this rule often leads to unjust results. They then began creating more and more exceptions to it. The following will succinctly present the development of the general rule as designed by those exceptions over the centuries. The conclusion will be that the general rule weakened gradually up to World War II, but at the same time, the courts refrained from overturning it. The exception made for those enemy aliens who entered the realm under the king’s “safe conduct” soon widened to include those enemy nationals present in England lawfully, even if they did not enter in such a manner. In Wells v. Williams (1697) the court found that a French national can sue in an English court, despite the war between the two kings, and although he entered England in a time of war “sine salvo conduct” (without safe conduct) Williams (1697).4 This because he remained in kingdom “by the King’s leave and protection”. Part of such protection is the ability to sue in courts. It was later ruled that such protection need not be express but can be implied by registration or even internment E. D. D. (1919). Thus emerged what may be titled “a territorial model” of the general rule. Under this model, enemy aliens were denied access to courts not because of nationality, but by domicile. Those legally residing in England enjoyed such access regardless of their nationality. Often those residing in allied or neutral countries were granted access even if they themselves were enemy nationals (1915). Those residing in enemy territory were denied such access, even if they were nationals of allied nations. Thus, although non-enemy subjects, Dutch nationals were perceived enemies during WWII since their territory was occupied and governed by Nazi Germany. Even a British national in enemy territory could be denied access to his majesty’s courts (1943).5 4 The authors feel compelled to quote another striking statement in this case: “A Jew may sue at this

day, but heretofore he could not, for then they were looked upon as enemies. But now commerce has taught the world more humanity” (pp. 282–83). 5 The House of Lords ruled that undoubtedly non-enemy subjects, the Dutch citizens were to be treated as enemy aliens since they were domiciled in occupied enemy territory (“an alien enemy…

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More exceptions to the general rule and its territorial model were introduced in the 20th century. First, the court held that a person involuntarily staying in enemy territory would not be considered an enemy alien, notwithstanding his presence in such territory (1917). Second, access to courts exists in the case of dual plaintiffs, that is, when one plaintiff is an enemy alien and the other is not. Thus, a firm registered in England, with all but one of shareholders being enemy aliens, is entitled to sue in English courts (1919).6 Third, an enemy alien can sue if the respondent does not object to the action during the preliminary hearing.7 An interesting deviation from the territorial model has to do with cases of habeas corpus petitions filed by detainees held for violations of the laws of war or by prisoners of war. In these cases, the courts adopted the citizenship model according to which the Great Writ is denied from enemy nationals (1779).8 At the same time, enemy nationals detained for non-war related offenses did enjoy access to courts (1916). The territorial model was adopted by other common law countries such as Ireland Trotter (1919), Scotland (1916), Canada (1914) and Australia (1916).

2.3 France and Civil Law The legal systems of Continental Europe initially shared the Common law’s harsh approach to enemy aliens’ right of access to justice. However, many of the civil law jurisdictions were earlier to criticize this approach and adopt other, more flexible rules. This is true de jure, though as we will show, at times of war civil law countries did not always live up to their progressive theories. In France,9 access to courts was originally denied to all subjects residing in enemy territory—a territorial test—as per a 1704 decision received in the parliament of Douai (Flandres) and an “act of government” from 1803, confirmed in 1806 by the Court of Cassation. This principle was also prevalent during WWI in light of a decree does not mean a subject of a state at war with this country, but a person, of whatever nationality, who is carrying on business in, or is voluntarily resident in, the enemy’s country… Even a British subject, if voluntarily resident in enemy territory, would be treated at common law as unable to sue, for the denial of persona standi in judicio does not turn on allegiance, but on locality…it is not a question of nationality or of patriotic sentiment.”). 6 However, the law regarding access to courts of enemy corporations is inconsistent. In Sovfracht, 1 All ER 76 (1943) the court treated a firm, incorporated in the Netherlands, as an enemy alien lacking access to courts in the UK. For a study summarizing the right of access to courts of enemy corporations in Britain, the US, France and Germany, see Paul Weidenbaum, Corporate Nationality and the Neutrality Law, 36(6) Mich. L. Rev. 881 (1938). 7 The common-law rule prohibiting access to courts is a preliminary plea. Accordingly, this rule should be raised at the first opportunity in the defense plea. 8 The Court (Gould, Blackstone and Nares JJ) denied a habeas petition of Spanish sailors held as prisoners of war on British territory. It should be noted that their allegation was that they are wrongfully held as prisoners of war. See also: Ex Parte Weber, 1 KB 280 (1916); R v. Supt of Vine Street Police Station, Ex Parte Liebmann, 1 KB 268 (1916). 9 Garner, supra note 5 at pp. 47–56.

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of September 27, 1914, and legislation from April 4, 1915, that forbade trade with the enemy. The legislation stipulated that every contract signed with an enemy, even if on French soil, was null and void as being contrary to the public policy; and hence, it is impossible to ask for its enforcement. Such a rigorous prohibition attracted criticism from French jurists who saw the concept behind it, one of war as a total conflict between nations and their citizens, as outdated. These jurists called for a distinction between official enemy agents— to which the law can deny access to courts—and civilians, who should be entitled access to courts. The crucial factor being the features of an individual litigant rather than his place of residence.10 The criticism led to a revision of the French law. The courts relaxed the strict rule and allowed access to courts to subjects of an enemy state dwelling in enemy territory. However, their right to relief was suspended until the end of the war. Importantly, the courts framed the right of access to courts as a “natural right”, which could be infringed only through explicit legislation. The leading decision, handed down on April 20, 1916, instigated enormous criticism from French patriotic circles. This ruling stated that the prohibition on trade with the enemy did not deny all other private rights of access to courts even if the litigant dwelt in enemy territory. Austria, too, adopted a liberal policy. Subjects and corporations in enemy territory were allowed to sue and be sued in the Austrian courts if a special surveillant consented to the proceedings. For instance, the courts sanctioned a suit presented by a French haberdasher from Vienna, who, with the outbreak of WWI, had returned to France and attempted to sue Viennese clients for the payment of debts accumulated before the war.11 The court suspended the relief until the end of the war. Germany, in contrast, took a position more extreme then did France and adopted the territorial criterion applied in the common law. German legislation denied access to court, first and foremost, to any enemy alien dwelling outside Germany and to any corporation located beyond German borders, irrespective of whether in enemy or neutral territory (However, like England, the exercise of the right to defend oneself as a respondent was retained).12 Germany’s Chancellor received broad authority to set individual exceptions. Due to the territorial test, French or English subjects residing in Germany during the war, and French or English corporations operating primarily from German soil, or having branches in Germany, were awarded the option of access to court.13 Although the civil law rule is in general more liberal than the common law rule, in practice differences are not significant. Most of the civil law states enacted during WWI special legislation banned any governmental or private trade with the enemy. Enemy aliens were not allowed to sue, even if the contract or the commercial relation 10 Ibid.,

at 51–52. supra note 5 at pp. 58–59. 12 This deviation from the civil law rule may be explained by the outburst of militarism and nationalism that characterized old Germany, especially after its unification in 1871 under the leadership of Otto von Bismarck, up to and later during World War II. 13 Garner, supra note 5 at pp. 56–58. 11 Garner,

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were signed before the outbreak of the war. This approach was maintained during WWII.14 An absolute prohibition was in tort law. Most of the civil law states, similarly to the UK and the US, enacted legislation providing strict immunity for the state from enemy aliens’ war damages claims (Hogg and Monahan 2000; Frulli 2003; Engle 2005; Hofmann and Riemann 2004).15 In public claims regarding the war’s conduct, the rule was even stricter (McNair 1915).

2.4 United States Law American law was influenced by the English rule but took its own course of development. Three marked periods show the changing attitude towards the question of enemy aliens and their right of access to courts: the Civil War, World War II and the still-evolving period following the terror attacks on September 11, 2001 (the latter of which will be discussed in part three of this paper). Federal courts adopted the English rule according to which persons dwellings in enemy territory are not allowed to conduct any intercourse—trade or otherwise— with the US as a whole.16 The literature and rulings tended sought to deny their access to the court, including preventing writs of habeas corpus presented by enemy aliens. Several cases during the Civil War, deal with the right of access to civilian courts of “enemy” aliens who were tried by military commissions (1866, 1869). The question of whether they are entitled to “the great writ” (i.e., habeas corpus) went all the way up to the Supreme Court of the United States. These are not typical cases to the question of “enemy aliens” as they pertain to American Citizens. They did, however, give the Supreme Court an opportunity to make it clear that the court would not allow an absolute denial of its power to examine the legality of any petitioners incarceration and that the great writ is an “immemorial right” for centuries, even before the Constitution was established. In one case, Chief Justice Chase ruled that the justices “regard as established, upon principle and authority that the appellate jurisdiction by habeas corpus extends to all cases of commitment by the judicial authority of the United States, not within any exception made by Congress.” It should be noted again, that the case was about “enemy” citizens’ access to court, but not to foreigners’ enemy.

14 McNair,

supra note 5; Roxburgh, supra note 5; Garner, supra note 5. A. Engle, Alien Torts in Europe? Human Rights and Tort in European Law, Bremen University, 2005 (available: http://www.zerp.uni-bremen.de/english/pdf/dp1_2005.pdf); Rainer Hofmann & Frank Riemann, International Law Association Committee on Compensation for Victims of War Compensation for victims of war—Background Report (ILA 2004) (available at: http://www.ila-hq.org). 16 The Prize Cases, 67 U.S. 635 (1862). In these cases the US Supreme Court have delved into, among others, the questions of who is an “enemy” and what is a “state of war”. See also the references in Johnson v. Eisentrager, 339 U.S. 763, at footnote 52 [1950]. 15 Eric

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An important precedent was set in the Milligan case. The background of this petition was a presidential order issued by Abraham Lincoln during the Civil War, which suspended a detainee’s privilege to request a writ of habeas corpus. Milligan, an American citizen and a resident of Indiana, had arrested and tried before a military commission, found guilty and sentenced to death by hanging. Milligan challenged the authority of the military commission to try him as well as his incarceration. The court decided that his access to civil court could not be suspended and that he was entitled to a jury trial. However, under the common law rule, Milligan was at any rate entitled to access to court, based on his American citizenship as well as a place of residence (Indiana State). The court, well aware of the historical moment (“No graver question was ever considered by this court”), also determined an important rule: in lieu of statute, “Martial rule can never exist where the courts are open.” This rule seemingly applies only to US citizens, not to foreign enemy aliens. Similarly to the English law, the American Law has adopted the philosophical conception to which war is a total conflict between two nations.17 The US jurist, James Kent, argued that following this rationale leads to the obvious conclusion regarding “the inability of an alien enemy to sue, or to sustain… a persona standi in judicio…” (Kent 1826). This approach also prevailed during WWI. Article 7(b) of the Trading with the Enemy Act, 1917, stipulates that during hostilities, the courts are not to hear any civil suits presented by enemy aliens or allies of an enemy. Enemy subjects were entitled to defend themselves as respondents during the war (although they did not have the right to cross-action) (1870); however, as plaintiffs, they had access to court only at the war’s conclusion or, as in common law, if they held a work permit or resided in the United States. Moreover, some state courts ruled that a suit based on causes of action arising before war’s outbreak would be suspended until after the war’s conclusion, whereas suits based on causes of action arising after war’s initiation would be rejected.18 In some exceptions to the general rule state-court, judges voiced their discomfort with it. Such was the case when the New York Supreme court was asked to dismiss a plaintiff’s suit by her being an enemy alien (1918). The court emphasized that it could deny the motion because the plaintiff, a temporary resident of New York, should not be seen as an enemy alien, but it chooses to deny it 17 See

for instance: Article 21 to the Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, Promulgated as General Order No. 100 by the President Lincoln, 24 April 1863. See also Articles 20, 24. For the Lieber Code see Elihu Root, Francis Lieber, 7(3) Amer. J. Int’l L. 453 (1913); George B. Davis, Doctor Francis Lieber’s Instructions for the Government of Armies in Field, 1(1) Amer. J. Int’l L. 12 (1907). For a similar approach see Prize cases, 67 U.S. 635. 18 For the approach taken by the courts during this period see E. M. Borchard, The Right of Alien Enemies to Sue in Our Courts, 27 Yale L. J. 104 (1917); Gordon, The Right of Alien Enemies to Sue in American Courts, 36 Ill. L. Rev. 809 (19XX); Battle, Enemy Litigants in Our Courts, 28 Virginia. L. Rev. 429 (1942); Rylee, Enemy Aliens as Litigants, 12 Geo. Wash. L. Rev. 55 (1944); Habeas Corpus Protection Against illegal Extraterritorial detention, 51(3) Columbia L. R. 368 (1951); Willis B. Shell, Habeas Corpus: Jurisdiction of Federal Courts to Review Jurisdiction of Military Tribunals When the Prisoner is Physically Confined Outside the United States, 49(6) Michigan L. R. 870 (1951).

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on the broad ground that the resident subjects of an enemy nation are entitled to invoke the process of our courts so long as they are guilty of no act inconsistent with the temporary allegiance which they hold for this government.

For the length of WWII and thereafter, the US Supreme Court set down some precedents that impinged on enemy subject’s access to the US civil courts. These precedents allowed citizens access to court, and likewise to enemy aliens present in US territory, but forbade it from foreign enemy outside US soil, albeit less strictly than the UK rule. The constitutional right of an enemy alien’s access to court was discussed on Johnson v. Eisentrager case (1950). This case involved the constitutionality of detaining 21 German citizens, detained and tried by the U.S. on Chinese soil during World War II. Justice Jackson, denying them the right to access to court, repeated the conception of war as entire combat between two nations.19 It was material to his argument that at no point were the men tried or held within the U.S. Access to civil courts was, likewise, denied from “unlawful combatants” (1942)20 ; this category can be US citizens who “associated themselves with the enemy.” This term is equivalent to the common term of ‘unprivileged belligerents.’ The Eisentrager case has influenced U.S. practice on actions presented by enemy aliens until recently.21 The court has denied constitutional access to an enemy alien but has not deliberated access as emanating from particular federal acts or international law. These issues have arisen only of late, after the September 11, 2001, terrorist attacks, as we will show in part three.

2.5 International Law Access to court is a recognized international law right. It is mentioned in Article 8 of the Universal Declaration of Human Rights (1948) and anchored in Article 14 of the International Covenant on Civil and Political Rights (1966).22 These instruments do not necessarily provide access to a court to enemy aliens. The convention’s Article 4 permits a member state to derogate from its obligations in “time of public emergency

19 From the case: “In war, the subjects of each country were enemies to each other, and bound to regard and treat each other as such… it is one validated by the actualities of modern total warfare… in war every individual of the one nation must acknowledge every individual of the other nation as his own enemy—because the enemy of his country”. For a similar approach see also In re Territo, 156 F.2d 142, 145 (9th Cir. 1946). 20 In this case, the courts denied access to civil courts (the plaintiffs were tried by a military commission) in a writ of habeas corpus requested by German citizens, based on the contention that they were “unlawful combatants” and, thus, were ineligible to civil judicial proceedings. See also In re Yamashita, 327 U.S. 1 [1946]. 21 For the prohibition rule of enemy aliens’ access to US courts and civil suits see Ex parte Colonna, 314 U.S. 510 (1942); Ex parte Kumezo Kawato, 317 U.S. 69 (1942). 22 International Covenant on Civil and Political Rights, 999 UNTS 171 (1966).

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which threatens the life of the nation.”23 Also, according to Article 2(1) the parties to the convention undertake to ensure rights enumerated in it, only to those individuals within their territory. The covenant, therefore, does not, in general, confer rights on an enemy alien found outside its territory. The law governing the enemy subject’s (or hostile parties) right of procedural access to the court during warfare is anchored in two primary sources. The first source and a controversial one is Article 23(h) of the Hague Regulations (1907).24 Section 23(h) prohibits a party to hostilities to abolish or suspend rights and actions of an enemy subject, defined as a national of the hostile party (that is, a personal-status test of citizenship): 23. It is especially forbidden […]: (h) To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.25

According to the prevailing interpretation in civil law countries, Article 23(h) annulled the common law rule regarding an enemy alien’s access to courts. It is, therefore, impossible to forbid an enemy subject’s suit as per the common law rule.26 However, According to the Anglo-American interpretation, Article 23(h) is directed exclusively at military personnel. Its purpose is to prevent military commanders from issuing orders that might deter an enemy alien from exercising access to the court within occupied enemy territory, that is, in his state. Article 23(h) does not impinge on the options local civil authorities—such as legislatures—can employ to limit an enemy alien’s access to his own state’s courts.27 More specifically, the article targets the behavior of soldiers on the battlefield but does not obligate their governments to avoid similar acts. This approach has been the subject of criticism 23 Article 4 likewise states that during states of emergency, there are rights that do not suffer infringement but no mention is made in this regard to access to court during war. 24 Hague Regulations Respecting the Laws and Customs of War on Land (1907). 25 The relevant articles with respect to the right of access to courts of enemy subjects in occupied territories are Articles 42–56, especially Articles 43–48. 26 This interpretation is based on the covenant’s authors’ original intent and the textual interpretation of the article. For this and the article’s development history see Thomas E. Holland, Article 23(h), 28 L.Q.R. 94 (1912) 94; Thomas E. Holland, The Laws of War on Land (1908) 44; Lassa F. L. Oppenheim, The League of Nations (_) 45–55; K. Strupp, Die Bedeutung des Artikels 23 h der Haager Landkriegsordnung und die anglo-amerikanische Auffassung vom Einfluß des Krieges auf die schuldverhältnise Privater, 23 Zetschrift für Internationales Recht, Abt. II, 118–121 (1913). 27 This interpretation is based on the context of the article within the document. The article is placed in the chapter on the “means of injury the enemy” during “hostilities”. See George B. Davis, The Amelioration of the Rules of War on Land, Amer. J. Int’l. L. 63, 70 (1908); Pearch Higgins, The Hague Peace Conference and Other International Conferences Concerning the Laws and Usages of War: Texts of Conventions with Commentaries (1909) 235; G. Von Glahn, Law Among Nations (4th ed., 1981) 61; G. von Glahn, The Occupation of Enemy Territory (1957) 108; C.M. Picciotto, Alien Enemy Persons, Firms and Corporations in English Law, 27 Yale L. J. (1917–1918) 167; Stone, supra note __ at 441–443; Trotter, supra note 14 at 20; Holland, supra note 124 at 98. It should be noted that Profs. Holland, Stone and Von-Glahn suggested canceling Article 23(h) due to its ambiguity.

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delivered by international scholars.28 The British government and courts, however, based on the interpretation mentioned above, continued to apply their traditional rule well after 1907 and during the two world wars as well as afterward. The court has unyieldingly declared this position: Article 23(h)… relates solely to the conduct of a military force and its commanders in a campaign and not at all to the administration of the law respecting alien enemies at home… It is to be read, in our judgment, as forbidding any declaration by the military commander of a hostile force in the occupation of the enemy’s territory which will prevent the inhabitants of that territory from using their Courts of law to assert or to protect their civil rights. For example, if the commander-in-chief of the German forces which are at the present moment in the military occupation of part of Belgium were to declare that Belgian subjects should not have a right to sue in the Courts of Belgium, he would be acting in contravention of the terms of this paragraph of the article.

In the U.S. (1942) and Israel (1988), the matter remains moot. Thus, the conundrum raised by Section 23(h)’s interpretation is not, yet, resolved. There is no authoritative decision issued by any international tribunal on this topic. Still, the practice of most of the countries after Article 23(h) was adopted indicates that they have implemented Article 23(h) given the British interpretation, even the civil law countries which saw the British interpretation as a “barbaric approach against the culture.” The controversy revived in the nineties, while Article 23(h) was adopted, as it is, into Rome Statute of The International Criminal Court.29 Another source which deals with enemy aliens’ access to court is Article 5 of the Fourth Geneva Convention (1949),30 which likewise points to the possibility of infringing an enemy alien’s access to the court during the war. An “enemy alien” is defined as a person found in the territory of an enemy state that is a party to violence (the territorial test). According to the convention, such a person “shall not be entitled to claim such rights and privileges under the present convention” if, “an individual protected person is suspected of or engaged in activities hostile to the security of the State.” Nor can he enjoy the rights granted by the convention if the relief to which he may be entitled may be prejudicial to the state’s security. Obstruction of such an action also applies in private law cases, such as tort or contract. Also, an enemy alien can be sued, within which framework he is entitled to a fair and regular trial.31 The approach of the European Court of Justice in the aftermath of the 9/11 terrorist attacks, was however very different than that of what was considered to be the law on access of enemy aliens to courts in the 20th century. After a court of first instance 28 Holland,

supra note 54 at 94–96; Holland, supra note 54 at 5; Garner, supra note 18 at 29; Oppenheim, supra note 44 at 309–313. In his letter to the British Foreign Office, Prof. Oppenheim wrote that Article 23(h) annuls the prohibition on an enemy alien’s access to court, and that the British interpretation currently contradicts the international law rule. 29 Article 8(2)(b)(XIV) to the Rome Statute of the International Criminal Court (2002). 30 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949). 31 According to the Commentary to the Geneva Convention, Article 5 is not a general provision regarding access to court of enemy aliens but, rather, a specific provision regarding enemy aliens’ protection only in criminal charges against him by state-party.

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declared in 2005 that states can limit access to court in the name of the war on terror,32 The Grand Chamber overturned its decision as not respecting the rights to “defense, especially the right to be heard, and of the principle of effective judicial protection” (2008). It is also the only case dealing with this issue since WWII. It is, therefore, difficult to outlay any ongoing approach of international law to this matter.

3 The Law Against Access to Courts by Enemy Aliens Meets the 21st Century As above described, most any legal system had at first limited the ability of enemy aliens to access its courts but had later subjected these limitations to a series of exclusions and amendments. Courts in the various jurisdictions have struggled to properly balance national interest, but also, one may argue, national and nationalistic sentiment, with basic principles of justice and fairness. The outcome of such balancing exercises did not significantly change across centuries and jurisdictions. As discussed in part 1(c), the 20th century brought with it radical changes in the status of individual rights. Individuals are no longer seen as mere parts of a collective. They cannot, at least in liberal democratic thinking, be collectively punished. Human dignity and due process require that each is treated on her own merits. The balance between human rights and national interests has changed dramatically. Political developments of the early 21st century have disturbed this clear picture of steady ongoing one-directional developments. The rise of international terror organizations, their sophistication, the scope of their threat and the widening of their targets to practically all western democracies, have brought upon a shift of mind in many western democracies. Some have called to rethink the balance between national security interests and the protection of individual rights.33 Many countries have enacted emergency laws to fight terrorism.34 Democracies are challenged not to forfeit the progress made over decades that has so fundamentally contributed to human dignity

32 Ali Yusuf & Al Barakaat International Foundation and Abdullah Kadi v Council of the European Union and Commission of the European Communities (2005, The Court of First Instance of the European Communities, Second Chamber, Luxemburg) (at: http://curia.eu.int). To the plaintiff’s appeals see Case before the Court of Justice, C-415/05 P (Ahmed Ali Yusuf v Council and Commission)—Appeal against Judgment of the Court of First Instance (Council of the European Union, Brussels, 5 January 2006). 33 One example is the writings of sociologist Amitai Etzioni calling for a more sympathetic view to national security concerns, while maintaining liberal principles. See: Amitai Etzioni, Security First: For a Muscular, Moral Foreign Policy (2007). 34 Most notably “the Patriot Act”, Pub. L. no 107-56, 115 Stat. 272 (2001); but also among others: Terrorism Prevention and Investigation Measures Act 2011 in the United Kingdom; in Germany the Gesetz zur Änderung der Vorbereitung von schweren staatsgefährdenden Gewalttaten I BGB 926 (2015).

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and prosperity in the western world, while keeping tools that can effectively deal with those aiming to destroy any such progress. The law is called on stage to meet this challenge. We shall argue henceforth that it is yet to provide a comprehensive answer regarding the issue of enemy alien’s right of access to justice. We will first look into how three democracies that face serious threats from international terrorism have dealt with this challenge. We believe this description points to a certain level of quandary among courts faced with questions of enemy alien’s access to court. This discussion will be followed by our thoughts on the proper implementation of human rights of enemy aliens and legal balance between competing considerations.

3.1 United Kingdom Case Law More than 550 years after the formulation of Common Law’s general rule negating enemy alien’s right of access to justice, the United Kingdom’s declared it to still be the law of the land, while at the same time eliminating much of its force. In the Amin case (2005), the Chancery Division stated the English law is that “the enemy subject in this country cannot come to sue in the courts any more than could an outlaw.”35 However, it also declared the military actions of the United Kingdom in Iraq, the nation of the plaintiff in the case, not to constitute a state of war between the two countries. It went beyond referring to the nature of that specific arena to declare that “ The traditional concept of war has virtually disappeared from state practice since the Second World War… it is almost never necessary to invoke the traditional legal concept of war”.36 Finally, the court ruled that the traditional rule “is part of the rules of English law relating to the traditional laws of war and that there is no warrant for extending it to the modern armed conflict.”37

3.2 United States’ Case Law The United States being the undisputed global leader in the so-called “war on terror” has faced in the years passed since 9/11/2001 the richest caseload among western democracies of disputes in which one of the parties was an enemy alien. The US attacks in Afghanistan, which marked the beginning of the ‘war on terror,’ led to the capture of hundreds of suspected terrorists. They were forwarded to the US military base at Guantánamo Bay, Cuba, where a few remain until this very day (Yoo 2006). This despite declared policy by the Obama administration to close down

35 Id.,

§ 23. § 28. 37 Id., § 28. 36 Id.,

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the facility, as a result of its bogus legal status. Those intentions were hampered by Congress.38 The 2004 Rasul case, referred to the legality of detaining enemy combatants who were neither citizens nor residents, captured while armed during the hostilities in Afghanistan and later detained at Guantánamo Bay. The Supreme Court’s majority opinion, finding for the plaintiffs, differentiated This case from the Eisentrager case. Contrary to the Germans in Eisentrager, the plaintiffs held at Guantánamo Bay had been neither tried nor convicted in a military or any other tribunal; they were not citizens of an enemy country, and they had denied any involvement in hostilities. Second, on jurisdiction, the detainees in Eisentrager were held in Germany, an area in which the US exercises no sovereignty, whereas, in Rasul, the Court ruled that according to the leasing agreement with Cuba, the US exercises “exclusive jurisdiction and control” in Guantánamo Bay. Third, although the plaintiffs in Eisentrager were denied constitutional access to courts (1950), the petitioners’ right in Rasul did not rest on the Constitution, but explicit federal acts (2004). Following the Rasul decision, Pentagon established the Combatant Status Review Tribunals (CSRT),39 special administrative tribunals mandated to review the detainees’ challenge to their status, limiting their right of appeal to civil courts to the question of their status, but not their detention length or conditions.40 Later, in December 2005, Congress passed a new act—the Detainee Treatment Act (DTA)— which stripped the court of its jurisdiction to hear petitions “for a writ of habeas corpus filed by or on behalf of an alien detained… at Guantánamo Bay”.41 The act granted limited, exclusive jurisdiction to the Court of Appeals for the District Court of Columbia to review only “whether the final decision [of the military commission] was consistent with the standards and procedures in the military order.”42 In Hamdan v. Rumsfeld, the Supreme Court ruled that Common Article III to the Geneva Conventions apply to Guantánamo Bay; consequently, Guantanamo detainees held before the DTA should be tried by a regularly constituted court, not a military commission. The decision relied on a technical, statutory interpretation rather than on constitutional norms. The court ruled that the DTA, which had stripped the court of its jurisdiction to hear a petition for a writ of habeas corpus, could exert no influence on pending cases; that is, it had no retroactive effect.43 The 38 For an analysis of the Obama administration’s commitment to shut down the facility and its failure to do so, see: Priscila Alvarez, Will Guantanamo Bay’s Prison Ever Close? Theatlantic.com (Dec. 21, 2016). 39 Order Establishing Combatant Status Review Tribunal (Memorandum from Paul Wolfowitz, July 7, 2004); Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba (Memorandum of Gordon England, Secretary of the Navy, 2004). 40 A Status of “enemy combatant” and even “unlawful combatant” can be assigned to an American citizen as well. See Cert. Denied, 352 US 1014 (1957); Quirin, 317 U.S. 1 at 37–38; In re Territo, 156 F.2d 142 at 145; Milligan, 71 U.S. 2 at 762. 41 Article 1 to the Detainee Treatment Act of 2005, Pub.L. 109–148, 119 Stat. 2739. 42 Articles 2 and 3 to the DTA. 43 On the date of its enactment (December 30, 2005), certiorari was already granted.

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Court deliberately avoided examining the question of whether enemy combatants have constitutional access to federal courts using habeas corpus: “we find it unnecessary to reach either of these arguments” since “principles of statutory construction suffice to rebut the government theory, at least insofar as this case…is concerned” (2006).44 A few months after the Hamdan decision, Congress passed the Military Commissions Act of 2006 (MCA). The MCA authorizes the President to establish military commissions. Section 7 of the act in practice left if for the executive to limit habeas corpus petitions, by stating that: No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States, who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

This section was found unconstitutional by the Supreme Court in the Boumediene case (2008). Justice Kennedy writing for a 5:4 majority determined that: “to hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is.’” In practice, this meant that the executive could not prevent the alien enemy combatants from accessing courts. Not much can be rescued in terms of outlining the law on the right of access to courts by enemy aliens from US Supreme Court jurisprudence post 9/11. The court seems to have been cautious not to engage in overall stare decisis review. Rather, it resorted to more technical matters of retroactive applicability and, while protecting the constitutional right of habeas corpus, refrained from interfering in other limitations set by Congress on access to justice of enemy aliens on more substantial grounds. It is hard to avoid a sense that the Supreme Court at the same time felt uncomfortable with some of the pre-existing common law rules and was unwilling to declare it void in light of 21st-century legal norms regarding the rule of law and individual human rights.

3.3 Israeli Case Law As early as four years after the foundation of the State of Israel, the Israeli Supreme Court declared that while it finds guidance in the common-law rules regarding access to justice of enemy aliens, it is not bound by them. In the relevant 1952 case,45 the court declared the common law rule does not apply to public law cases, but only to private law cases. However, to the best of our knowledge, even regarding such cases, it never refused to discuss a case brought by an enemy alien on the merits. An attempt by the Israeli legislature to deny enemy aliens legal remedies in tort suits against the state was partially struck down by the Supreme Court. In 2005 the 44 See

also Justice Scalia dissenting opinion at 2819. later cases see HCJ 574/82 Al-Nawar v. Minister of Security SC 39(3) 449 (1985) and HCJ 4487/98 Asaf v. Israel (1998). 45 For

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Knesset enacted amendment 7 to the Civil Torts Act. The act denied remedy from any enemy alien who suffered a tort where the tortfeasor was the State of Israel, regardless of the existence or non-existence of wartime or hostilities context. The Supreme Court preferred to exert its review on the case based on the breach of the right to property, which is enumerated in Israel’s basic laws, than on the right of access to courts. It found the law’s harm to private property to be disproportional and thus unconstitutional. The Court rejected overarching presumptions in the law that any remedy to an enemy alien constitutes an advantage to the enemy or compromises national security. The court ruled that an individual review of every claim is required, thus rejecting the old traditional view of enemy aliens as by-definition participants in the assault on the state. However, the court rejected as premature claims of unconstitutionality regarding another stipulation in the law which denied the cause of action to enemy aliens (unless lawfully residing in Israel), those active in or members of terror organizations or those acting on their behalf while suffering a tort (2006). The seminal Supreme Court case focused on the question of enemy aliens’ status in Israel’s law was reviewed by the Supreme Court not once, but twice under the practice of “additional hearing” reserved to those rare cases involving both novel and highly complex matters of legal interpretation. In Dirani v. Israel Moustafa Dirani, a senior member of ‘Amal’ a Lebanese organization considered a terror organization by Israeli law,46 who was detained in Israel between 1994–2004, filed a torts-based lawsuit against the state for allegedly subjecting him to torture in the course of his detention. The case was filed when he was still held in Israel. However once Dirani was released and returned to Lebanon (in exchange for Israeli POWs), the state asked the Tel-Aviv district court to dismiss the case under the common law rule, and given that Dirani returned to active engagement in terror activities against Israeli (Dirani’s commitment to this violent action was declared by him and not disputed). The State’s argument was rejected (2005).47 The judge stated that Dirani is indeed an enemy alien by territorial rule (domiciled in Lebanon), individual rule (citizen of Lebanon) and organizational affiliation (active Hizbollah senior, another terror organization by Israeli law) as well as by his actions. Yet, Given the constitutional status of the right of access to justice, it cannot be limited unless done so explicitly and proportionally by a statute.48 This determination was at the heart of the Supreme Court’s ruling on appeal. In their 2011 ruling, the justices agreed that Dirani holds a procedural cause of action. They also agreed that the existing common law rule is that an enemy’s claim needs not be reviewed. They differed, however, on the applicability of this rule to Israeli law. The majority ruled that “… proper constitutional regime confers legal protection to enemies as well” and that that in itself does not endanger the State, but rather “guarantees its moral force”. This goes especially to claims regarding human rights 46 As

determined by executive order under the Terror Prevention Ordinance (1948).

47 It should be noted that this case did not come under the legislation discussed in Adalah v. Minister

of Defense (supra, fn. 88) as the alleged torts were inflicted on the appellee occurred before the period covered by the law. 48 As required by Section 8 of Israeli’s Basic Law: Human Dignity and Freedom.

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abuses, said the majority. The dissenting Justice argued that the common law rule is indeed part of Israeli law. “I find it hard to see why,” he wrote that a certain rule will thrive for 400 years in progressive nations, notwithstanding serious challenges such as the world wars, and only in our state, we will choose to reject it completely… I can see not why England, Canada, and the United States will find that there is no justification to offer an enemy tools by way of monetary suits in their legal system (subject to adequate exclusions) and we shall find that there is no difficulty in allowing the worst among our enemies, while residing in their home countries to manage monetary lawsuits against the State of Israel.

Following the ruling the state filed a motion for rehearing of the case, which was accepted by the President of the Supreme Court. On rehearing, the enlarged bench reversed the first decision by a 4:3 majority (2012). The court found that the common law rules are indeed part of Israeli law, but as part of the state’s law need to be modified in two separate ways, one expanding it and the other narrowing it. The majority’s opinion, delivered by Chief Justice Grunis, opened with comparing the situation in the UK and the US with that in Israel. The majority acknowledged that the traditional common law rule was somewhat relaxed along the centuries, but determined that it remained in force in at least two ways: first, as related to enemy aliens living in enemy territory; secondly when relating to torts cases, which differ substantially from Habeas Corpus cases on which the appellee relied upon.49 Both of these protect the original rationale of the rule against enemy access to the justice system, which was not to transfer funds to enemy territory during the war and thus abet it. Traditional common law rule, the court found, limits itself to the presence of “actual” and “formal” war between the state and that of the plaintiff’s, which is limited in time. This is doubtfully the situation between Israel and Lebanon. However, the court stated, a variety of international armed conflicts are known to us today which do not lend themselves to this definition. The rule should be applied to the fight against terror, and similarly, to its traditional form, it will be removed once the hostilities are over. The appellee will then be allowed to file his claim. On the other hand, the traditional common law rule applied to any enemy alien, regardless of his hostility towards the state or his detachment to any actual acts of violence. In the traditional context, this problematic aspect of the rule is mitigated by the limited time span of the war. However, in the context of the fight against the terrorist organization, the timeframe is wide open. Such wide application is disproportionate, and hence unconstitutional by Israeli law that requires (in addition to statutory basis and befitting state values and proper purpose), proportionality when violating the right to human dignity, seen as incorporating the right of access to justice.50 Therefore, the rule should be limited to those individuals engaged in actual violent actions against the state.51 The court found this to be the case with Mr. Dirani. 49 Indeed,

the court mentioned, Dirani filed several claims regarding his detention conditions with Israeli courts, all of which were dealt with and some of which were accepted, and in none of them the issue of enemy alien’s right of access was disputed. 50 Dirani III, p. 120 51 Dirani III, p. 56.

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4 Towards a New Law Governing the Right of Enemy Aliens’ Access to Courts We stated at the outset that it was a settled matter for centuries, that from the legal aspect, enemy aliens have no right of access to courts. Towards the end of our discussion of this matter, it seems that we are on solid ground stating that in the 21st century it is settled that no such overarching rule can stand. Yet, the basic rule has not been declared void de jure, in spite of the consistent practice of courts to carve exceptions in all but the most extreme circumstances. Cases such as Dirani in Israel have rendered it largely void de facto, while still presenting themselves as implementing it. In the following, we explain why this is the case and then follow with some thoughts on why the law has thus far refrained from declaring the basic rule’s anachronism. A new model to replace the traditional rule is suggested towards the end of this part, as well as delineation of some unresolved issues that require further discussion.

4.1 The Historical Rule’s Incompatibility with Modern Warfare The historical rule limiting enemy aliens’ access to courts, and specifically the common law rule based on the territorial model, came to be under a certain wartime philosophy. One which saw war as a total struggle between nations in an all-inclusive, general sense; the nation as a whole went to war. War was waged not only between countries but between their citizens. As asserted by Immanuel Kant, who wrote that war is “not only the relation of one state toward another as a whole but also the relation of individuals of one state toward the individuals of another (Kant 1785).” Another characteristic of wars was that they were seen as an exception to the norm. A temporary series of events limited in time and space. War had a start date, an end date and was conducted in specific arenas. This state of affairs allowed the emergence of the norm/exception dichotomy, in which legal mechanism such as limiting enemy aliens’ access to courts was seen an exceptional tool, the use of which is a response to a necessity that is a result of exceptional circumstances.52 Once normality is restored, such tools would become unnecessary, and the normal state of affairs, that in which any individual may access courts, would be restored.

52 On

the concept of necessity as a justification to divert from entrenched constitutional norms and notions see in this volume Hadjigeorgiou & Kyriakou, Entrenching hegemony in Cyprus: The doctrine of necessity and the principle of bicommunality, and Gurpuran, Constitution and Law as instruments for normalising abnormalcy: States of Exception in the Plurinational Context.

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By the time of writing of this paper, early-2017, it is much a banality to iterate that modern wars no longer meet these criteria of totality and limited time and space.53 The “War on Terror” waged by the US after the 9/11 terror attacks in 2001, as well as other massively violent confrontations such as the Israeli-Palestinian conflict or the fight of various nations and groups against “The Islamic State” (ISIS) have no foreseeable end date and do not limit themselves in space. Thus the idea of “suspended remedies” for instance, becomes irrelevant. Applying the historical rule, especially in its common-law territorial form, in modern-day warfare raises many ambiguities in a world in which combatants often do not combat from a defined territory but are, instead, “supra-national” actors, active across numerous states. Civil law implications of the rule do not fit a reality of multinational legislation, global organizations, and borderless trade relations.

4.2 The Historical Rule’s Incompatibility with Human Rights’ and Humanitarian Law It is perhaps more self-evident that the historical rule, allowing a breach of basic individual rights because of an individual’s association with a given political unit, is incompatible with modern Human Rights and Humanitarian Law. One of the basic goals of Humanitarian Law is to set apart civilians from combatants, and no longer view all of the individuals residing in a belligerent state as themselves parties to war. This is not to say that states may not decide that certain legal assertions cannot be applied to the status of an enemy alien, but such assertions require justifications not negating the civilian/combatant distinction and not illegally violating human rights of any individual. Human Rights law has enshrined a robust set of rights bestowed on any human being regardless of her national identity, which is to be respected by all nations at all times. Thus, Article 4 of the International Convention on Civil and Political Rights states that state parties can derogate from their obligations to the rights protected by the convention in times of public emergencies “which threatens the life of the nation” only “to the extent strictly required by the exigencies of the situation” and even then, a state party cannot derogate from its obligation under Article 16 in which it agrees that “[e]veryone shall have the right to recognition everywhere as a person before the law”. This in addition to other non-derogate rights which may require courts’ interference to protect.

53 The war/peace dichotomy was brought into question as early as the mid-20th century, when a new category of “status mixtus” was suggested. See Yoram Dinstein, War, Aggression and Self- Defence 15 (5th ed., 2012).

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4.3 Legal Systems’ Hesitation in Nullifying the Traditional Rule The 21st century reality as described above begs the question: why did courts refrain from declaring the laws of their different jurisdictions that limit enemy aliens’ access to courts null and avoid. Why did they not state the obvious, which is that any individual has a right to be recognized as a person before the law (as stipulated in the ICCPR) and thus to access its courts when in need of legal remedy? This remains a puzzle. We believe this refrain might be an example of the uneasy situation of courts called to protect the rights of enemy aliens in times of warfare. Courts called to protect the rights of enemy aliens, often find it necessary to emphasize the limited reach of their decision and its narrow scope. In Boumediene for instance, the court stated that: Our decision today holds only that the petitioners before us are entitled to seek the writ… The only law we identify as unconstitutional is MCA §7… both the DTA and the CSRT process remain intact. Our holding… should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. (2008).

Many other cases creating exceptions to the traditional rule followed this path.54 Courts in such situations are not unaware of the public implications of their rulings. Public sentiment in times of warfare might be very sensitive to any sign of support to the enemy, and perhaps less sensitive to principles of procedural fairness which might be more appreciated in peace times. Thus, courts may avoid stating more than is strictly necessary to solve the case in front of them, in order to avoid, or minimize, public outcry. However, such avoidance may prove counter-productive in the medium to long term.

4.4 A New Rule Suggested The discussion so far leads us to the conclusion that a rule treating enemy aliens as one category in regard to the right to access to courts is incompatible with current human rights law, as well as irrelevant to current warfare. It should be declared null and void. Such a statement on behalf of national courts is important in stressing that in general any individual in want of legal remedy has the right to seek it in a nation’s courts. This, however, does not mean that any enemy alien should be allowed access to courts in any circumstance. We believe the Dirani case for one exemplifies how legal

54 For the narrow application of the Milligan case see as well as others, see: Andrew Kant, Judicial Review for Enemy Fighters: The Court’s Fateful Turn in Ex parte Quirin, The Nazi Saboteur’s Case, 66(1) Vanderbilt L. Rev. 153, 204 (2013).

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procedures can be abused as weapons in psychological warfare. We believe submitting court systems to such abuse risks creating an unnecessary division between them and the public at large. A new rule to govern enemy aliens’ right of access to courts needs to be wider and narrower than the one it aims to replace. Narrower in the sense that it must limit itself to individuals for whom specific justifications can be found to limit their access to courts, and not to a category of individuals collectively stripped of their rights. Wider, in the sense that for those certain individuals whom we believe can justly be denied access to courts, this denial need not hinge on exceptional or temporary circumstances. The rule we suggest here can be titled as a “Functional Rule.” It centers on the function of the enemy alien approaching the court and the expected function of the proceeding itself. It limits the violation of the right of access to justice to those specific cases which stand in contrast to the justifiable interests of nations at war. According to this model a state must not deny access to courts to an enemy alien, except when the case is found to meet one of three conditions: (a) It is brought by an enemy organ, or an official thereof present in territory outside the state or its effective control. (b) It is a result of a legitimate act of war. (a) It is intended to benefit the enemy’s political or military goals. An exception to this exception is habeas cases and other cases which are necessary to protect the most fundamental human liberties. When a plaintiff seeks a warrant to put an end to an active and ongoing violation of International Humanitarian Law or Human Rights law, courts must not be allowed to avoid offering substantive due process. However, our rule would apply where human rights violations are alleged in civil cases seeking monetary redress or declaratory remedies. This formulation warrants several clarifications and justifications. Who is an “enemy alien”? Ideally, attribution of such a status would be the result of an inquiry into the individual’s behavior rather than blanket applications based on nationality. However, we accept that in times of war, such inquiry is not always possible, and one or another form of territorial or national models may be used. We suggest therefore to supplement those with a requirement to show that the enemy alien whose legal actions the state limits is an “enemy organ,” i.e., an official of a terror organization or a belligerent army or government, a corporation owned by them, or another agent of the enemy. What is an “act of war”? An act of war may occur with no present “State of War” (Eagleton 1941), as not every action in state of war is an act of war. The relevant question is not who carried out the action, but what the substance of the act was. Israel’s Supreme Court ruled that to define an act as one of war, various issues need to be observed, including the actions goal, location, duration, the acting forces and threats involved (2002). It should be noted that by using the definition “legitimate act of war,” we ipso facto exclude those actions which are found to be in breach of the laws of war. Such cases cannot be denied hearing according to our rule, unless the plaintiff meets one of the two other criteria (as was the case in Dirani).

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When is a legal proceeding intended to “benefit the enemy”? This might be the complicated of the decisions our model requires. However, we believe the only legitimate rationale for denying enemy aliens’ access to courts is preventing abuse of the justice system for the enemy’s ends. This is the prism through which we believe courts should examine this issue. Not any monetary benefit to an individual enemy alien supports the enemy’s economy and war efforts. Sincere and authentic applications to court should be allowed even if they may cause some indirect or insignificant support to the enemy. However, where the court concludes that the plaintiff seeks such benefit, and she uses the judiciary as a means to achieve it, the reverse applies. This issue could be determined by court as a preliminary matter raised by the respondent government at the opening of a legal procedure. How would our suggested rule play out in the Dirani case? It would indeed support the court’s finding in the additional hearing. Dirani, according to the findings of the Supreme Court of Israel, is an official of an enemy organ present in territory outside Israel.55 After release from Israeli prison he merged his own organization with the “Hezbollah” movement and became active in it. According to our suggested rule, he would thus be prevented from filing his case with an Israeli court. We argue that the traditional rule according to which a country’s legal system should not be made available to its enemies, is still good law in those few cases where the person aiming to use can be identified as an “enemy organ”. Dirani’s case set, supposedly, to seek redress for torture Dirani underwent while prisoned in Israel. This excludes the case from our second criterion, as torture is not a legitimate act of war. Had this been the only applicable criterion among those suggested in our model, the court would in our opinion be obliged to hear the case, regardless of Dirani’s whereabouts. Our third criterion would call upon the court to determine whether the case is brought inter alia with an intention to benefit the enemy’s political or military goals. We argue that this is likely to be the case with Dirani. When an individual is strongly identified with an enemy organ, and is committed to its goals, it can be reasonably presumed that the benefits to the organ with which he strongly identifies, play some role in his legal action.

5 Conclusion We have argued in this article for a change in the law governing enemy alien’s right of access to courts, which proceeds in two seemingly contradictory directions. The first is setting part with the historical rule significantly limiting the right of access to courts of enemy aliens. We have shown that this rule has been consistently narrowed over the centuries, but that courts have been hesitant to declare it void, and that at times it has been upheld. We believe it cannot stand in the current legal system of both public international law and the constitutional law of democratic countries, and 55 Dirani,

para 101 to President Grunis’ opinion.

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thus, that courts should be open to any person seeking redress for wrongs afflicted upon him by a national government. The other direction at which we have pointed argues that courts should be able to avoid hearing some cases of enemy organs. We argued that this is the case when enemy organs or their officials outside territory under the country’s control bring suit against it, or when a case stems from a legitimate act of war or when a case aims to benefit the enemy. Such exceptions must not cover applications to court aimed at stopping active breaches of humanitarian international law or human rights law. We believe the proposed model properly balances between the right of access to courts and the need to protect the right itself and the judiciary from abuse.

References Ali Yusuf & Al Barakaat International Foundation and Abdullah Kadi v Council of the European Union and Commission of the European Communities (2005, The Court of First Instance of the European Communities, Second Chamber, Luxemburg) Alvarez P (2016) Will Guantanamo Bay’s prison ever close? Available at Theatlantic.com Battle GG (1942) Enemy litigants in our courts. Va L Rev 28:429 Berger BL (2006) Our evolving judicature: security certificates, detention review, and the federal court. Univ B C L Rev 101 Borchard EM (1917) The right of alien enemies to sue in our courts. Yale L J 27:104 Blackstone W (1765) Commentaries on the laws of England, 21st edn Davis GB (1908) The amelioration of the rules of war on land. Am J Int L 63, 70 Davis GB (1907) Doctor Francis Lieber’s instructions for the government of armies in field. Am J Int L 1(1):12 Dickinson ED (1919) Enemy alien litigants in the English law. Mich Law Rev 17(7):597 Dinstein Y (2012) War, aggression and self-defence, 5th edn Eagleton C (1941) Acts of war. Am J Int L 35:321 Elihu R (1913) Francis Lieber. Am J Int L 7(3):453 Engle EA (2005) Alien torts in Europe? Human rights and tort in European law. Zentrum für Europäische Rechtspolitik an der Universität Bremen Frulli M (2003) When are states liable towards individuals for serious violations of humanitarian law? The Markovic case. J Int Crim Just 1 Etzioni A (2007) Security first: for a muscular, moral foreign policy Gordon JJ (1941) The right of alien enemies to sue in American courts. Ill L Rev 36:809 Higgins P (1905) The Hague peace conference and other international conferences concerning the laws and usages of war: texts of conventions with commentaries Hofmann R, Riemann F (2004) International Law Association Committee on compensation for victims of war—background report Holland TE (1908) The laws of war on land Holland TE (1912) Article 23(h). LQR 28:94 Kant I (1991) The metaphysics of morals (trans Gregor M) Kent J (1826) Commentaries on American law. Article 1, Section 8, Clause 11:53–67 Kent A (2013) Judicial review for enemy fighters: the court’s fateful turn in ex parte Quirin, The Nazi Saboteur’s Case. Vanderbilt L Rev 153:66(1) Leubsdorf J (1984) Constitutional civil procedure. Tex L Rev 63:591–599 McNair AD (1915) Alien enemy litigation. L Q Rev 31:155–158 Michelman FL (1974) The supreme court and litigation access fees: the right to protect one’s right—Part I. Duke L J 1153:1172–1177

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Oppenheim LFL (1919) The league of nations and its problems: three lectures Picciotto CM (1917–1918) Alien enemy persons, firms and corporations in English law. Yale L J 27:167 Roxburgh RF (1920) The alien enemy in English law. J Comp Legis Int Law 2(3):270 Rylee WY (1943) Enemy aliens as litigants. Geo Wash L Rev 12:55 Shell WB (1951) Habeas corpus: jurisdiction of federal courts to review jurisdiction of military tribunals when the prisoner is physically confined outside the United States. Mich L R 49(6):870 Trotter WF (1919) The law of contracts during and after war Von Glahn G (1957) The occupation of enemy territory Von Glahn G (1981) Law among nations. 4th edn Weidenbaum P (1938) Corporate nationality and the neutrality law. Mich L Rev 36(6):881–905 Yoo J (2006) War by other means: an insider’s account of the war on terror

Public Health, Financial, and Economic Crises

Introduction: Public Health, Financial and Economic Crises Anna Damaskou

Abstract Starting from the basics, all authors of this Chapter provide a definition of what “extreme conditions” or “emergencies”, as more traditionally referred to, constitute. Basic constitutional models of emergency powers undertaken by the executive under extreme conditions are, moreover, identified by the authors, who, in addition, map the concerns over the restriction of fundamental rights under such extreme conditions. Public health emergencies, although among the most traditional forms of emergencies, pose challenges which demand responses distant from “business as usual”. Even more distant from “business as usual” are the responses required to the new-born European economic and financial emergencies, which generate doubts as to whether the European Union and its Member States will ever be the same again. As national fundamentals are overturned, the European Union and its Member States struggle to remain beacons of human rights protection.

1 Starting from the Basics All authors of this part are commencing their contributions by attempting to provide a definition of what “extreme conditions” or “emergencies”, as more traditionally referred to, constitute. Dr. Villarreal1 explicitly, at the outset, states that on there is no unitary agreement on the legal field of what exactly an emergency constitutes and that the current lack of a precisely calibrated blueprint for emergencies entails a continuous process of assessing facts for determining how to respond to a situation. He submits, though, 1 See in this volume Villarreal Pedro A., “Public Health Emergencies and Constitutionalism: Between the National and the International”, Sects. 1 and 2.

The views and opinions expressed herein are those of the author and do not reflect the official policy or position of Transparency International (Greece). A. Damaskou (B) Chair of the Board, Transparency International Greece, Athens, Greece e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_11

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that an emergency for constitutional purposes entails something more than simply any “extraordinary” event. Professor Bertolini2 attempts to define “emergency” as an extraordinary situation requiring prompt and firm action[; t]herefore, emergency powers are conferred to the executive, while the role of parliament as well as the protection of some key fundamental rights and freedoms are compressed[; t]he greater detail of such provisions, the less the executive may act without any control or limit; [t]he emergency finished, the normal functioning of the form of government is restored”. She further adds that “the key elements of traditional emergencies are mainly two: a temporary prominent role of the executive power over the legislative and measures that temporary infringe or suspend rights and freedoms[; t]herefore, temporariness is the core word, since the emergency character of the situation requires a deviation from the constitutional legal order[; m]oreover, since the ultimate aim is the restoration of the constitutional legal order, the deviation cannot be temporary.” As to the constitutional emergency powers undertaken by the executive under such extreme conditions, Dr. Villarreal3 identifies three basic models: • The “rule of law” or “business as usual” model, according to which responses emergencies can be framed within the existing, ordinary legal framework, entailing no actual extraordinary measures, since they may be found within the predetermined norms. • The “constitutional dictatorship” model, in which emergencies lead to exceptional and temporary regimes wherein ordinary norms do not apply. • The “extralegal model”, in which responses to emergencies are to be found outside of the legal order, on the basis that “necessity knows no law”. However, as Professor Bertolini4 submits, not all constitutions provide for an emergency model; what they cannot avoid to provide for, though, are emergency instruments. The above inevitably lead to Dr. Baraggia’s5 point that the notion of emergency powers is deeply intertwined with the concepts of sovereignty and of the ultimate detention of power. It is in this framework, that he poses inter alia the following questions: – Does emergency represent a breach into a legal order or does it constitute an additional source of law? – Who has the power to decide in an emergency? – Does an emergency legitimate fundamental rights violations? 2 See

in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 4. 3 See in this volume Villarreal Pedro A., “Public Health Emergencies and Constitutionalism: Between the National and the International”, Sect. 2.A. 4 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 3. 5 See in this volume Baraggia Antonia, “Economic Crisis and Fundamental Rights Protection: The Case Law on Austerity Measures in Comparative Perspective”.

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Dr. Villarreal’s6 contribution provides some answers to the above questions: “[D]eclaring an emergency for constitutional purposes would entail an expansion of governmental authority, usually of the administrative or executive branch[; t]he “extreme” version is the French Constitution, which […] grants the President the power to declare an emergency by her/himself, putting congressional or judicial oversight aside altogether[; y]et even in this model, a lack of legally established institutional checks-and-balances does not mean that there is simply no possibility of having counterweights when declaring emergencies […,] without ignoring the fact that “extra-legal” (social, political) counterweights are also a force to be reckoned with, sometimes more so than legality[; t]he underlying assumption for enhanced executive decision-making is that the regular processes do not allow for an efficient response to an outstanding threat[; s]ome events, whether caused by persons or naturally occurring (war, terrorist attacks, economic meltdowns, natural disasters), surpass the inherent capabilities of institutions to deal with them in an “ordinary” manner[; t]he assumption in the background is that the executive has the best tools for facing such a situation”. As to the concerns over the restriction of fundamental rights under extreme conditions, Dr. Villarreal7 admits that “a series of human rights are susceptible of being suspended, or even derogated, when an emergency justifies it[; t]he idea that human rights are an “obstacle” to the attainment of certain abstract goals, like the “very existence of the State” clearly does not bode well with everyone; [f]or another strand, there is simply no possible justification for the use of emergency powers outside of the rule of law, thus devoting all emergencies to a “business as usual” model[; …] according to this view, no situation could possibly warrant a restriction, much less a derogation of human rights, since any such case would most likely be a façade[; f]rom a normative perspective, the establishment of legal provisions dealing with emergency powers and derogations of human rights are by no means uncontroversial.”

2 Public Health Emergencies: A Business-as-Usual Notion or Not So? In light of the above, Dr. Villarreal,8 whose contribution in this chapter deals with a traditional form of emergency, that of public health emergency, concludes that there is still no scientific consensus regarding what constitutes a public health emergency, despite the occurence of such events since for ever and despite the fact that “infectious disease epidemics can shake the very foundations of societies, whilst straining legal 6 See

in this volume Villarreal Pedro A., “Public Health Emergencies and Constitutionalism: Between the National and the International”, Sect. 2.A. 7 See in this volume Villarreal Pedro A., “Public Health Emergencies and Constitutionalism: Between the National and the International”, Sect. 2.C. 8 See in this volume Villarreal Pedro A., “Public Health Emergencies and Constitutionalism: Between the National and the International”, Sect. 4.

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emergencies and states of emergency, exception, siege or defense, they may still provide insights on multiple factual and normative challenges”. A subsequent challenge of the aforementioned lack of consensus is there is no uniformity with regard to the legal framework for responding to them and, therefore, “a specific fact such as a transborder epidemic warranting a multilateral response does not fall within the purview of clear-cut legal orders, as the constitutional framework of one country and the other may not be comparable [; a]nd other times, they may even set the stage for changes in the reach and scope of human rights”.

3 Economic and Financial Emergencies: Will Europe and Its Member States Be the Same Again? Along the path of the traditional public health emergency, presented in this Chapter by Dr. Villarreal, Professor Bertolini and Dr. Baraggia opt to deal with a rather unconventional form of emergency that of the economic and financial crises seriously ravaging Europe since 2010. The crises in name are probably the most significant ones that the EU as a whole faced since its establishment. It was most its complexity which gave rise to an enormous number of various political, institutional and legal questions, with often no (sound) answers. The two concurrent crises displaced the cornerstones of both national and EU fundamental institutional architectures, which inevitably had a serious impact on democracy, legitimacy, accountability and human rights. While a lot of ink has been shed with regard to the economic and financial measures taken to respond to the crises, the effect of those emergencies on the institutional and constitutional orders of the EU and its Member States have not been adequately assessed. In light of the above, as Professor Bertolini9 rightly points, the requirement of temporariness is completely lacking with regard to this particular crisis, which is evident both in the ongoing prominence of governments over parliaments and also in the seemingly never-ending limitation of human rights. Thus, among the effects of the present economic and financial crises are constitutional crises at both national and EU levels. In this context, both authors analyse the national and EU anti-crisis measures and instruments enacted due to the economic and financial crises, as well as the interactions between the multiple EU Member States’ jurisdictions hit by the crisis and the EU jurisdiction.

9 See

in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 4.

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3.1 National Fundamentals Overturned Professor Bertolini10 embarks her analysis by attempting to draw the relevant constitutional framework: where constitutions provide for a specific section dealing with the state of emergency, they may even provide that a deep economic crisis falls within such an emergency, although the “depth” is a rather subjective criterion. However, Professor Bertolini11 wonders: – Can this pattern be applied to an economic emergency? – Can all the crisis-related measures, adopted both at supranational and national level, be described as pure and ‘classical’ emergency provisions? – Are they transitory, as emergency provisions should be, or not? – How are they adopted and through which instruments? – In addition, to what extent do they affect and infringe fundamental rights? It is exactly those questions to which Professor Bertolini and Dr. Baraggia’s contributions in this Chapter provide answers. Professor Bertolini12 admits that economic and financial crises can be equated to e.g. armed insurrections and thereby justifying executive recourse to emergency powers, as there is an undoubted need for immediate action. However, in such cases the duration of the emergency may seem indefinite and the time of restoration of the status ante unforeseeable, thus negatively impacting on democracy, accountability and human rights protection. Nevertheless, as Dr. Baraggia13 points out, “[n]egotiations of conditions are undertaken by governments, with parliaments confined to a role of the ratification of the decision taken in other fora, without the chance to assure democratic accountability control on their respective governments”. In this framework, both authors embark on exposing notable elements within the national jurisdictions of the protagonist Member States. Common elements among these countries have been inter alia the extensive use of the governments’ power to issue legal instruments, such as e.g. decrees, not requiring lengthy adoption processes, public consultations, political debates, the pivotal involvement of the parliaments in their adoption etc., as it is the case with ordinary statute laws. As Professor Bertolini14 very eloquently describes it, “parliaments were basically stripped of the freedom of discussion and proposal of amendments and thus reduced to institutions merely 10 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 3. 11 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 3. 12 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sects. 3 and 4. 13 See in this volume Baraggia Antonia, “Economic Crisis and Fundamental Rights Protection: The Case Law on Austerity Measures in Comparative Perspective”, Sect. 2.2. 14 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 3.2.

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ratifying decisions taken elsewhere, not under the scrutiny of any elected body and that have to be abode also by national governments”. In such an environment, the stance of national courts, expected to counterbalance this democratic deficit by assessing the content of such legal instruments and also of the ordinary statute laws embodying the crisis measures, has not been uniform among Member States and also within the same Member State. Namely, the stance of national courts has varied from declaring crisis measures as proportionate, due to the budgetary constraints generated by the extreme conditions and, thus, legitimate, to striking down provisions of the budgetary laws, so as to restore the adequate protection of fundamental, welfare and property rights. Relatedly, Professor Bertolini15 poses the additional question of whether external conditionality itself requires measures which violate rights or whether it is the way these measures are nationally implemented which leads to such violations. Whatever the answer may be, “the economic crisis has […] to be considered as a new genus of emergency that has put the constitutional order under considerable strain”, Professor Bertolini16 concludes, adding that “none of the countries seriously affected by the crisis invoked the emergency[; t]herefore, the traditional emergency pattern cannot be applied to the present day economic crisis[; s]urely, this is an emergency but the traditional model does not fit[; s]ince different concerns arise, different constitutional solutions have to be provided for.”

3.2 Can the EU Still Claim to Be a Beacon of Human Rights Protection? The management of the crisis at the EU level has posed many constitutional concerns, mainly in terms of legitimacy and accountability of the procedures providing for the new instruments, mechanisms, and effects in the long term on the rights protection, Professor Bertolini17 remarks, so as for Dr. Baraggia18 to add that the EU Treaties did not contain any emergency provision and, therefore, an experimental approach was adopted, trying to fit the existing institutional instruments to the crisis circumstances. Thus, it is not the promptness of the EU’s reaction which should be doubted, but the legitimacy of the procedures chosen by the EU to carry out its action, Professor Bertolini19 submits, adding that the related vacuum in the Treaties forced Member 15 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 3.3. 16 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 4. 17 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 3.1. 18 See in this volume Baraggia Antonia, “Economic Crisis and Fundamental Rights Protection: The Case Law on Austerity Measures in Comparative Perspective”, Sect. 2. 19 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 3.1.

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States to opt for solutions partially outside the EU legal order, namely outside the checks and balances system of the EU institutional architecture. The intergovernmental procedure chosen resulted not only in the circumvention of Union law, but also to a potential threat to democracy and to the rule of law Dr. Baraggia20 claims. Professor Bertolini21 is even more alarming in this respect, claiming that this shift of power not only from national parliaments to national governments, but also from national governments to international or European institutions shall not be temporary with whatever this entails for the principles of democracy, proportionality, accountability, transparency, non-discrimination and human-rights protection, since the more one distances from the national sovereign the more scarce accountability mechanisms become. Namely, Dr. Baraggia22 notes, the delegation of discretionary powers to supranational institutions has rendered judicial review difficult, since the authorities’ technocratic margin of appreciation has been extend to a degree which leaves courts with little space for posing challenges. Undoubtedly, such a choice has a deep, transformative and long-lasting impact on the EU legal order, leading to EU constitutional transformation. This weakened accountability challenges, in particular, the effectiveness of fundamental rights protection within the EU in times of crisis, he adds, for Professor Bertolini23 to explicitly underline that the relevant MoUs as well as the Council Decisions make no reference to either the European Social Charter or the EU Charter of Fundamental Rights, despite the emphasis that the Treaty of Lisbon puts on the EU commitment to social rights.

4 Concluding Remarks Even though, public heath emergencies belong to the sphere of often occurring events, the lack of consensus as to the definition of what constitutes a public health emergency and the lack of uniformity as to how to respond poses multiple factual and normative challenges, Dr. Villarreal admits.24 However, the fact that such events have been occurring since ever and they will continue to do so makes the need for their effective regulation at all jurisdictional levels imperative. The management of the economic and financial crises in the EU also demonstrated a clear deficit at both the national and the EU levels, in this case a democratic 20 See in this volume Baraggia Antonia, “Economic Crisis and Fundamental Rights Protection: The Case Law on Austerity Measures in Comparative Perspective”, Sect. 2. 21 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 4. 22 See in this volume Baraggia Antonia, “Economic Crisis and Fundamental Rights Protection: The Case Law on Austerity Measures in Comparative Perspective”, Sect. 2. 23 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 3.3. 24 See in this volume Villarreal Pedro A., “Public Health Emergencies and Constitutionalism: Between the National and the International”, Sects. 1 and 2.

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deficit: not only were measures adopted not by the legislatives but by the executives, but, moreover, even the EU legal order was bypassed in favor of the international, Dr. Baraggia concludes.25 The legislatives, both at national and at EU level, were, thus, excluded from the decision-making process and restricted to informative duties. All that happened, despite the effect of the austerity measures as such and their related national implementations on citizens’ fundamental and social rights. It was in this that national–often constitutional or supreme courts- were called to defend the fundamental rights enshrined in their national constitutions but violated due to the crisis. In particular within the EU, the economic and financial emergency proved to be a sui-generis case, he continues, as it was addressed with a legal improvisation ending up to the circumvention of EU law and the deployment of international instruments. In this context, the role of the CJEU was limited both by definition and also by choice, legitimizing the “supra-national discretionary authority”. In concluding overall, Professor Bertolini26 highlights that a new constitutional regime within the EU as well as within the Member States needs to be drafted, in order to adequately meet the needs of the globalised economy and the challenges emerging therefrom. This new constitutional design should not necessarily involve the enactment of new provisions strengthening monitoring, accountability and protection of social and economic rights, but could also rely on proper constitutional interpretation. Admittedly, both the economic and the financial crises have had roots not only in the sphere of global failures but also in the sphere of EU failures. Namely, inadequate or inappropriate monitoring and supervision of the sovereign balance sheets, as well as of the national banking systems significantly, contributed to the crises. The signs were evident since a long time, but even when those crises topped, the EU was still unprepared to resolve them. Therefore, the hasty and spasmodic actions of the EU itself and its Member States inevitably caused inter-institutional, inter-state and EUMember State imbalances and tensions. It finally proved that the innocent victim of those imbalances and tensions were human rights, most social and economic ones, but even the restriction of those rights can harm the very essence of human dignity and value.

25 See in this volume Baraggia Antonia, “Economic Crisis and Fundamental Rights Protection: The Case Law on Austerity Measures in Comparative Perspective”, Sect. 3. 26 See in this volume Bertolini Elisa, “Financial Crisis as a New Genus of Constitutional Emergency?”, Sect. 4.

Judging in Times of Economic Crisis: The Case Law on Austerity Measures in Comparative Perspective Antonia Baraggia

Abstract The chapter addresses the role of the judiciary during the 2008 economic crisis, which affected Europe and its Member States. In particular, the chapter compares the attitudes of national constitutional courts in judging austerity measures adopted under emergency circumstances, identifying three main justifications of the courts’ attitude during the crisis: 1. national supreme courts acted in order to safeguard the constitutional core values threatened by the extraordinary circumstances posed by the economic crisis; 2. they acted as institutions engaged in a kind of “institutional competition” with other constitutional actors; 3. they acted in order to affirm the self-standing nature of national constitutional order, with respect to supranational and international interference. The chapter explores how in the future the EU should improve the virtuous relationship between its political and judicial actors in order to avoid the flaws and legal contradictions that have characterized its response to the economic emergency so far.

A. Baraggia (B) Department of Italian and Supranational Public Law, University of Milan, Milan, Italy e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_12

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1 Introduction The economic crisis which, starting from 2008, affected Europe and its Member States had a wide impact not only on the economic and financial policies of the EU, but also on the balance of powers (both at national and European level), on the status of social rights protection and on the future developments of the EU integration process. The crisis brought to a constitutional transformation,1 both at national ad supranational level, prompting the emergence of a new European constitutional constellation, a new Verfassungswirklichkeit.2 One of the main features of this transformation has been the growing influence of international financial institutions (IFIs), rate agencies and other “technocratic” actors, whose legitimacy and accountability has still to be completely and properly assessed. The “capture” of power by these new actors has been particularly evident during the crisis management, which showed the flaws of the Maastricht compromise3 and challenged the sustainability and the existence of the constitutional order in many countries in financial emergency. The EU institutions embraced Washington Consensus’-style measures,4 challenging the basic assumptions of the socialdemocratic state: the adoption of austerity measures—imposed or negotiated by the national governments and international financial institutions—brought to severe and unprecedented violations of constitutional fundamental rights, especially social rights, the most affected by the scarcity of financial resources.5 In this scenario, dominated by the context of emergency and by the external constraints imposed to the national executives and parliaments by international and supranational institutions, the judiciary played a pivotal role in adjudicating austerity related measures and in safeguarding the core of social rights6 threatened by the economic emergency. 1 The impact of the economic crisis both at national and supranation level has been described through

the category of constitutioanl mutation or constitutional transformation, see Menendez A (2014) Editorial: An European Union in Constitutional Mutation?. European1 Law Journal, Vol. 20, no. 2:127–141; Martinico G (2014) EU crisis and constitutional mutations: a review article. Revista de Estudios Pol´iticos (nueva e´ poca), n. 165:247–280. Against this narrative see de Witte B (2015) Euro crisis responses and the EU legal order: increased institutional variation or constitutional mutation? European Constitutional Law Review, Vol. 11, n. 3:434. 2 Joerges C (2014) Europe’s Economic Constitution in Crisis and the Emergence of a New Constitutional Constellation. German Law Journal, 15 no. 5:1024. 3 B¨ ockenf¨orde E W (2010) Kennt die europäische Not kein Gebot? Neue Z¨uricher Zeitung. As B¨ockenf¨orde argues: “Die Krise der Europäischen Union hat ihren Grund in Widersprüchlichkeiten und Strukturfehlern des EU-Vertrags seit der Einführung der Währungsunion im Vertrag von Maastricht. Sie war vorhersehbar und ist nicht einfach vom Himmel gefallen”. 4 Lütz S Kranke M (2014) The European rescue of the Washington Consensus? EU and IMF lending to Central and Eastern European countries. Review of International Political Economy, 21:2:310– 338. 5 Nolan A (ed) (2014) Economic and Social Rights after the Global Financial Crisis. CUP. 6 On the role of Courts in adjudicating social rights see King J (2012) Judging Social Rights. CUP.

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The judiciary intervention has been certainly triggered by the peculiar features of the crisis and by its impact on national constitutional orders. In light of the peculiar circumstances of the crisis, we argue that this phenomenon should not to be read within the classical understanding (and criticism) of judicial activism or “juristocracy”7 : instead, it has to be considered as an intervention aimed to “restore” an imbalance of power that occurred both internally and internationally during the economic crisis and to protect constitutional fundamental rights, even in time of severe economic crisis. In particular, this paper will compare the attitudes of national constitutional courts judging austerity measures adopted under emergency circumstances, identifying three main justifications of the courts’ attitude during the crisis8 : 1. National supreme courts acted in order to safeguard the constitutional core values threatened by the extraordinary circumstances posed by the economic crisis. 2. National supreme courts acted as institutions engaged in a kind of “institutional competition” with other constitutional actors. 3. National supreme courts acted in order to affirm the self-standing nature of national order and power, with respect to supranational and international interference, especially in matters considered at the core of national prerogatives (sovereignty, social rights protection, budget rules). These three justifications may help to read the case law of some of the so called “debtor countries” during the economic crisis (namely Portugal, Greece, Latvia and Romania). The first part of this paper highlights the paradigmatic nature of the European economic crisis as a global crisis that involves national, supranational, and international settings. In fact, the crisis initially affected only some Member States (Greece, Portugal, Ireland, Latvia, Hungary, Cyprus), but, due to the strong connections of the EU legal framework, it then acquired a supranational dimension that involved other Member States and the EU as a whole. This fragmented nature of the crisis is reflected by the instruments adopted to tackle the emergency, which represent a hybrid category between EU law and international law, thereby casting doubts on their legitimacy. The second part analyzes national courts’ decisions in cases dealing with the crisis and in particular in social rights adjudication (Portugal, Greece, Latvia and Romania). For each of these cases, the paper describes the legal reasoning and substantive outcomes of the courts. As the paper argues, in judging the crisis supreme courts adopted a case-by-case approach, swinging between the boundaries of the written constitutions and the contingent constraints of the economic crisis. The result of 7 Hirschl

R (2007) Towards Juristocracy. The Origins and Consequences of the New Constitutionalism. Harvard University Press. 8 On the role of the judiciary in time of crisis from a theoretical perspective, see in this volume Kuo M S From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization. In particular, the Author argues that “the judiciary may help domesticate the beast of emergency powers by focusing the public mind on our current situation with the constitutional mindset”.

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such case law has been contradictory and not always coherent. However, national courts seemed to be perfectly aware of their role not only with respect to the national branches of government but also to the EU institutions9 and to the international financial actors. Finally, the third part explores how in the future the EU should improve the virtuous relationship between its political and judicial actors in order to avoid the flaws and legal contradictions that have characterized its response to the economic emergency so far.

2 Governing the “Extra-Ordinary”: The Judicial “Dilemmas” in Adjudicating Crisis-Related Measures One of the most debated issues of the anti-crisis mechanisms10 was that they were instituted outside of the legal framework of the EU through intergovernmental procedures and they were governed by a mix of public international law and private international law11 sources, resulting in a sort of ‘circumvention of Union law’12 and thereby a potential threat to European democracy and to the rule of law.13 These flaws within the EU response to the economic crisis persisted even after the amendment of art. 136 TFEU, aimed to give the ESM an EU legal basis: the IMF was, in fact, still involved in the European crisis management and its neoliberal philosophy deeply influenced the content of the Memoranda of economic and financial policies.14 In the light of these formal and substantial features of the crisis related measures, it is not surprisingly that many of the bailout conditions enacted during the crisis under the above mentioned mechanisms have been challenged in front of national supreme courts.15 Not only in Portugal—probably the most studied case—but even in Greece, Latvia and Romania there is abundant case law concerning the legitimacy of crisis-related measures with basic constitutional values, such as fundamental rights protection, and in particular the social rights dimension.

9 See

Kilpatrick C (2015) Constitutions, social rights and sovereign debt states in Europe: a challenging new area of constitutional inquiry. 43 EUI Working Paper Law p 3. 10 Namely the European Financial Stability Facility (EFSF) and the European Financial Stabilisation Mechanism (EFSM). 11 On the different nature in the legal form of the mechanisms adopted, see Tuori K, Tuori K (2014) The Eurozone Crisis: A Constitutional Analysis. CUP, p 90. 12 Tomkin J J (2013) Contradiction, Circumvention, and Conceptual Gymnastic: the Impact of the Adoption of the ESM Treaty on the State of European Democracy. German Law Journal 14:169. 13 Ibid, 169. 14 Somma A (2014) Legal Change and Sovereign Debt Crisis. The Clash Between Capitalism and Democracy in the Western Legal Tradition, Paulus C G (ed.), A Debt Restructuring Mechanism for Sovereigns. C.H. Beck, Hart, Nomos, p 176. 15 See Brancati B (2015) Decidere sulla crisi: le Corti e l’allocazione delle risorse in tempi di “austerità”’ n. 16 Federalismi.it, available at www.federalismi.it.

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However, this case law is extremely heterogeneous, and a meaningful comparison has to take into consideration the differences within the constitutional justice systems and within the constitutions (the presence of emergency clauses, social rights protection and justiciability). Moreover, while in Portugal, in Latvia and in Romania a constitutional court is present, that is not the case in Greece, where constitutional claims can be decided by different courts (i.e. the Council of State and the Court of Audit). Even by looking at the constitutional adjudication procedure, one sees that in Greece can complaints be directly brought to the court by the civil society; in Portugal the constitutional judgments have been mainly triggered both political institutions in a so-called “abstract” review16 ; in Romania and Latvia constitutional challenges occurred through individual complaints or through institutional actors designated to triggered the constitutional proceeding. Despite these differences, national courts ultimately have to face the same challenges: the review of austerity measures adopted by their respective national governments—often using emergency provisions—and negotiated with supranational institutions. In other words, they are called to play a pivotal role in counterbalancing the predominance of the executive power and international institutions. What could appear as typical judicial activism—juristocracy—in fact is not. As Kilpatrick argues, “juristocracy charges cannot be the same in times of EU sovereign debt”,17 since “during a bailout a wide range of national democratic choices become suspended as external lenders set the terms for loan disbursements”.18 Crisis-related measures suffer a democratic deficit: they are negotiated by supranational authorities, whose nature is executive or technical, and by national governments. The legislative branches, both at national and at EU level, are excluded from the decisionmaking process, and, even when there is a kind of involvement, either it is limited to informative duties or it lacks effectiveness. The ordinary legislative prerogatives are circumvented, and the triggering of emergency procedures leads to the derogation of the democratic rules operating in normalcy. In addition, austerity measures and their national implementations affect citizens’ fundamental and social rights. In this scenario, in which traditional democratic circuits have been circumvented, constitutional courts would seem to offer a crucial role in protecting fundamental rights enshrined in national constitutions that the legislation enacted to face the debt crisis violated.19 In the words of Kilpatrick, “hence, constitutional court judgments can become a new resource for governments in dealing with lenders to argue

16 Despite in Portugal a constitutional complaint may be triggered also in a concrete proceeding (by citizens), in our analysis we will focus only on abstract review proceedings, which can be filed by several institutional actors: among theme, the President of the Republic, the President of the Parliament, the Prime Minister and one-tenth of the Members of the Parliament. 17 Kilpatrick C (2015) Constitutions, social rights and sovereign debt states in Europe: a challenging new area of constitutional inquiry. 43 EUI Working Paper Law p 17. 18 Ibid, 19. 19 Fasone C (2014) Constitutional Courts Facing the Euro Crisis: Italy, Portugal and Spain in a Comparative Perspective. EUI MWP 2014/25 Working Paper.

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for renegotiation of terms in order to maintain constitutionality”.20 As Kim Lane Scheppele argues, “court decisions strongly supporting vulnerable populations may therefore give democratic governments engaged in ongoing negotiations with IFIs valuable bargaining leverage—a tool that may be necessary to fulfill promises previously made by government officials to their constituents. If this is the case, such court decisions would enhance rather than diminish the democratic responsiveness of elected institutions”.21 Moreover, supreme courts’ aim seems to be, paradoxically, the protection of the national legislative institutions, by reopening the decision-making process under the guidance provided by the Courts as regards the respect of fundamental rights under the national constitution.22 However, the price of the intervention of a national judiciary in striking down legislation implementing international financial commitments might be high, both in financial and in political terms. This is the reason why, at least at the very beginning of the assistance programs, national courts adopted a cautious approach in assessing the constitutionality of the austerity measures. Supreme courts find themselves also in the delicate position of deciding on emergency provisions, tracing the boundaries between the fundamental constitutional principles that cannot be derogated without infringing the constitutional order and the need to face a state of emergency, capable of threatening the sustainability of the national order itself. This outcome has not to be given for granted: according to Dyson, “the delegation of discretionary powers to supranational institutions has rendered judicial review exceedingly difficult and thus weakened legal accountability structures since the authorities’ technocratic margin of appreciation has been extended to a degree which leaves little space for courts to challenge official decisions legally”.23 The “national courts dilemmas” in judging austerity measures enacted in times of crisis clearly appears if one looks in a diachronic perspective to the case law of the courts involved in such a difficult task. Our research is focused on the case law of the Portuguese Constitutional Court, the Greek Supreme Courts, the Latvian and the Romanian Constitutional Courts. We will look at the court behavior following the three strategic attitude we have identified.

20 Kilpatrick C (2015) Constitutions, social rights and sovereign debt states in Europe: a challenging new area of constitutional inquiry. 43 EUI Working Paper Law p 20. 21 Lane Scheppele K (2004) A Realpolitik Defense of Social Rights. Princeton Law and Public Affairs, Working Paper Series, Working Paper No. 05-004:9. 22 Cisotta C, Gallo D (2014) The Portuguese Constitutional Court Case Law on Austerity Measures: A Reappraisal, Kilpatrick C, de Witte B(eds) Social Rights in Times of Crisis in the Eurozone: the Role of Fundamental Rights’ Challenges. European University Institute LAW Working Paper 2014/05:94. 23 Dawson M (2015) The Legal and Political Accountability Structure of Post-Crisis EU Economic Governance. JMCS 53 5:986.

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2.1 Protecting Constitutional Rights National constitutional courts are vested with the task to protect the legality of the constitutional order and to assess the constitutional legitimacy of legislative acts. Playing this role in time of economic crisis, when political decision strongly affected social rights protection, may be very difficult. However, in the case of the economic crisis, constitutional courts, comparatively speaking, were able to move on the thin line between constitutional emergency and legality, between normativity and contingency, using a progressive and an evolutionary approach. In all of these countries several measures affecting social rights were put in place following the conditions or just the “suggestions” of the “Troika”. In such a scenario, the judiciary intervention has been triggered, in order to assess the compatibility of the provisions affecting social rights with the national Constitutions. Comparing the case law of debtor countries we can identify a common trend: national supreme courts adopted, at the beginning of the crisis, a very cautious approach in assessing the constitutionality of the austerity measures with regard to social rights, which progressively changed in front of the persistency of the crisis and of the austerity-driven legislation. Indeed, during the first stages of the crisis, austerity measures have been declared admissible despite the fact that the domestic constitution expressly guarantees social rights (Greek Council of State) and also disregarding the role of ICESCR (again Greek Council of State); on the contrary, in a second phase of the crisis, Courts started to step in, declaring some of austerity measures in violation of constitutional provisions. However, even when Courts recognized the unconstitutionality of austerity measures, they did so almost exclusively on the basis of general constitutional principles (i.e. the principle of equality, proportionality, legitimate expectation, etc.), avoiding to rely on specific social rights, even where they were expressively protected by the national constitution. This strategy of national courts should be considered in the light of the nature of social rights adjudication itself24 but in the case of the crisis case-law can also disclose the Courts’ awareness of the high price of the activism of a national judiciary in striking down legislation implementing international financial commitments both in financial and in political terms. (a) The Portuguese supreme courts’ jurisprudence on austerity measures can be considered on the most emblematic example of the “route” taken by supreme court

24 The

peculiar attitude shown by Court should also be connected to the nature of social rights. The classical narrative has identified a kind of dualism between social rights—considered as positive rights, requiring a certain degree of public intervention for their realization—and civil and political rights—considered as negative rights, directly enforceable without a positive commitment by the State. Although the boundaries between civil and social rights have become more and more blurred, the double-sided nature of the rights is the still dominating paradigm, affecting not only the theoretical comprehension of the nature of rights, but above all the issue related to their effectiveness and enforcement.

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in dealing with the crisis25 : the court’s attitude moved from an initial deferential approach, which can be traced, for example, in decision n. 396/2011,26 to a more challenging one, shown in the landmark cases n. 353/201227 and n. 187/2013,28 in which the Court struck down the pay and pension cuts for public employees. In the very first decision concerning the crisis legislation, Acórdão n. 396/2011 of 21 September 2011, the Court maintained traditional self-restraint, upholding the provisions of the State Budget Law for 2011 on the cutback of public salaries. In this case, the Court dismissed the challenges to the Budget Law, ruling that there was no violation of the principles of equality, the principle of the protection of legitimate expectations or the principle of proportionality. According to the Court, the transitional nature of the measures challenged, due to the ‘conjuntura de absoluta excepcionalidade’, justified the cuts to public salaries.29 However, a few months later, the attitude of the Court became more challenging: in Acórdão n. 353/2012, the Court declared several provisions of the State Budget Law for 2012 unconstitutional. In particular, according to the Court, the norms concerning the suspension of Christmas and holiday-month payments during 2012–2014 for public sector workers and retirees were unconstitutional because they violated the principle of equality, which requires the just distribution of public cost between all citizens in proportion to each one’s financial capacity. In particular, the Court ruled that the difference in the degree of sacrifice demanded from public sector workers and from every other individual in order reduce public debt cannot be unlimited and the justification for the pay cuts must be submitted to a proportionality review.30 In the case at stake the Court affirmed that “the difference of treatment was so big that it could not be justified on grounds of urgency or effectiveness of the measures to pursue certain public interests, and so it violated the principle of equality”.31 In particular the Court warned that “the extremely serious economic/financial situation and the need for the measures that are adopted to deal with it to be effective cannot serve as grounds for dispensing the legislator from being subject to the fundamental rights and key

25 Maduro M P, Frada A, Pierdominici L (2017) A Crisis Between Crises: Placing the Portuguese Constitutional Jurisprudence of Crisis in Context. E-pública, vol. 4, n.1 available at www.e-public a.pt. 26 Acórdão no. 396/2011, 21 September 2011, available at www.tribunalconstitucional.pt. 27 Acórdão no. 353/2012, available at http://www.tribunalconstitucional.pt/tc/acordaos/20120353. html. 28 Acórdão no. 187/2013 available at http://www.tribunalconstitucional.pt/tc/acordaos/20120353. html. 29 The Court ruled that “these measures will last for several years, but that does not allow us to question their transitory character, bearing in mind the nature and objectives pursued, which consist in a normative answer to an exceptional situation that is supposed to be corrected, urgent and briefly, back to normal standards”, Decision 396/2011 (State Budget 2011). See Canotilho M, Violante T, Lanceiro R (2015) Austerity measures under judicial scrutiny: the Portuguese constitutional case-law. European Constitutional Law Review, 11:161. 30 Ibidem, 163. 31 Ibidem, 163.

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structural principles of the state based on the rule of law, and this is true namely with regard to parameters such as the principle of proportional equality”.32 In the Court’s overturning of its precedents, a decisive aspect was the fact that the cuts to remunerations and pensions lost their original ‘extraordinary and provisional’ nature due to the emergence of the economic crisis, and instead seemed destined to endure for years, with terrible and persistent consequences on the levels of remuneration for specific worker categories. What is, however, extremely meaningful in this decision, is that the Court decided to suspend the effects of the declaration of unconstitutionality, probably bearing in mind the international and the European financial constraints negotiated by the Portuguese government. After this ‘warning’, the Constitutional Court of Portugal, in subsequent case law, adopted an even more ‘activist’ approach. The foremost case of this period of jurisprudence was the aforementioned Acórdão n. 187/2013, of 5 April 2013, in which the Court declared unconstitutional several provisions of the Budget Law for 2013,33 adopted in order to implement the conditions posed by the Financial Assistance Program, agreed to by the Portuguese government and the Troika. In this case, the Court recognized that the persistent and reiterated sacrifices imposed upon public sector workers only, represented a violation of the principle of equality, which cannot be justified in the light of the objective of reducing public expenditure. Decision n. 187/2013 is even more interesting since, differently from the previous decision on State Budget 2012, the Court did not suspend the consequences of the declaration of unconstitutionality. Following the path traced by the landmark decision n. 187/2013, the Portuguese Constitutional Court, in subsequent rulings—Decisions n. 602/2013, n. 862/2013, n. 413/2014 and n. 574/2014—once more struck down provisions concerning labour law (for example, legislative measures that would make it easier for the government to dismiss civil servants, as well as cuts in public wages) and the public pension system’s reform, thereby affecting its relationship with the government and the legislature. What is remarkable in these last cases is that the state of emergency argument disappeared from the Court’s reasoning, making the Court’s scrutiny stricter towards any limitation or reduction of constitutional rights. The most recent cases deserve a specific attention: what is remarkable is that the Court, declaring the unconstitutionality of austerity measures based its review on general principles of law, not on specific rights, such the principle of equality, proportionality and legitimate expectations. As it has been highlighted, such case law “surely confirms the Court’s resistance to review the austerity measures on the basis of the constitutionally entrenched social 32 Kilpatrick C (2015) Constitutions, social rights and sovereign debt states in Europe: a challenging

new area of constitutional inquiry. 43 EUI Working Paper Law p 12. 33 The norm under scrutiny concerned the suspension of the additional holiday month of salary for public administration staff (and also for teachers and researchers), the suspension of the holiday month of pensions for public and private sector retirees and the duty imposed upon the beneficiaries of unemployment subsidies to pay social security contributions of 6% instead of 5%, in violation of the principles of equality and proportionality.

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rights”.34 In fact, the right to a minimum of existence is construed by the Court, following previous decisions (most notably Judgment 509/2002), as directly based on the principle of human dignity and not in connection with constitutional social rights.35 The use of the general principles of law in adjudicating such sensitive issues may be certainly due to the nature of social rights protection and the limits of social rights adjudication. However, it can be also read in the light of the higly controversial and divisive issues at stake: as it has been argues, “the protection of fundamental rights through general principles may also be regarded as the necessary means to accommodate the conflicting views of the judges. (…). It is fair to presume that on the matter of rights protection a consensus drawn from general principles is easier to reach than an agreement on the obligations imposed by the more specific provisions of the Constitution upon the legislature. This conclusion is reinforced if we take into account that the decisions on austerity measures have had more and more dissenting and concurrent opinions every time: as years go by, it seems that the differences in the reasoning between the judges have been exacerbated. Bearing this in mind, it seems that grounding the rulings on basic constitutional principles has proved a judicious way of reaching an agreement”.36 (b) The same “evolutionary” approach in judging austerity measures can be traced also in the Greek crisis-related case law. Indeed, even the Greek Council of State (CS) showed an initial deferential attitude towards the decisions taken to implement the conditions of the Memorandum of Understanding (MoUs), in particular in law n. 3845/2010.37 The Greek Council of State (CS) in Decisions n. 668/2012 and n. 1685/2013 upheld the measures prescribed in the first Memorandum, grounding its ruling on the state of exception, and on the compelling interest to enhance the financial credibility of Greece, with respect to the commitments assumed with the Troika.38 As it has been argued, in decision n. 668/2012, “the Council of State translated the emergency rhetoric used by the Government into legal terms. To this purpose the Court invoked a situation of ‘fiscal emergency’. This situation was to be identified exclusively by the legislator; the

34 Nogueira De Brito M (2014) Putting Social Rights in Brackets? The Portuguese Experience with Welfare Rights Challenges in Times of Crisis. Kilpatrick C and de Witte B (eds.) Social Rights in Times of Crisis in the Eurozone: The Role of Fundamental Rights’ Challenges. EUI WP 2014/05:87. 35 Kilpatrick C (2015) Constitutions, social rights and sovereign debt states in Europe: a challenging new area of constitutional inquiry. 43 EUI Working Paper Law p 12. 36 Canotilho M, Violante T, Lanceiro R (2015) Austerity measures under judicial scrutiny: the Portuguese constitutional case-law. European Constitutional Law Review, 11:183. 37 Law no. 3845/2010 “Measures for the implementation of the support mechanism for the Greek economy by the euro area Member States and the Internationa Monetary Fund”. The annex of the law was the first Memorandum of Understanding between Greece and creditors. 38 See Akrivopoulou C M (2013) Facing l’etat d’exception: the Greek Crisis Jurisprudence. Int’l J. Const. L. Blog www.iconnectblog.com/2013/07/facing-letat-dexception-the-greek-crisis-jurisprud ence accessed 30 June 2015.

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judiciary would have no say in legislative evaluations in this respect”.39 Contrary to the previous case law, starting from decision 668/2012 the financial public interest has been considered as a compelling national interest.40 The same argumentative path was followed by decision n. 2307/2014, where the Council of State ruled on the legitimacy of the austerity measures provided by the second Memorandum with regard to the private sector. The applicants were several Greek trade Unions, claiming the unconstitutionality of the measures enacted by the Greek government on the basis of law n. 4046/2012 implementing the second Memorandum of Understanding. The Greek Court affirmed that such measures introduced a downgrading of workers’ rights, protected by the Greek Constitution. However, according to the Court, such measures were proportionate and were justified by the extreme conditions and the state of emergency that led to their adoption.41 Exactly as the Portuguese constitutional court, even the Greek Council of State, in the persistency of the crisis, started to play a more active role, scrutinizing the austerity legislation adopted by the legislative, in the light of constitutional principles such as equality and proportionality. In decision n. 2192/2014, on pension rights for members of the military and the police the Court ruled that in times of an economic crisis the legislator is allowed to limit public expenses and especially for those who are receiving a salary or a pension from the public. This possibility cannot be unlimited but it must respect the principle of proportionality, of equality, of the respect of human dignity. On the basis of these principles there should be an equality in bearing the weight of the adaptation of the public expenses.42 The general principle of “dignified living” as been deployed in other significant decisions of the CS. in decision n. 2193/2014 on the retroactive reduction in the salaries of the military and in decision n. 2287/2015 on limitations in pensions for employees in the private sector and selfemployed. In the latter the Court affirmed that limitations in pensions must not violate the constitutional core of social rights, the right to pension which allows a dignified living, which assures the natural subsistence of the person but at the same time the participation of the person in social life in a way that is not very different from the circumstances of her working life”. Even the CS, traditionally very deferential toward the legislative cannot avoid to assess the compatibility of austerity measures with supreme constitutional values 39 Marketou A (2017) Greece: Constitutional Deconstruction and the Loss of National Sovereignty. T Beukers T, de Witte B, Kilpatrick C (eds.) Constitutional Change through Euro-Crisis Law, CUP, p 188. 40 Ibidem, 189. 41 About the approach the Courts in Greece during the crisis, see in this volume Tassopoulos I, Political Emergencies as Challenges to the Impartiality of Public Law. The author argues that “The Courts, as is well known, ratified the Memoranda reducing dramatically salaries and pensions, and cutting back the welfare state. The Courts invoked the law of necessity, and the paramount national interest of preventing the official default of the country”. See also, Psychogiopoulou E (2014) Welfare Rights in Crisis in Greece: The Role of Fundamental Rights Challenges. C Kilpatrick and B De Witte (eds.) Social Rights in Times of Crisis in the Eurozone: The Role of Fundamental Rights’ Challenges (2014) EUI WP 2014/05, p 12. 42 Decision no. 2192/2014, par. 19.

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and principle. In a context where the traditional separation of powers was subverted and even deconstructed43 by the procedure of the adoption of the austerity measure, Courts reveal themselves as the “last hope for the Constitution”.44 (c) Moving now to the Eastern Europe bailout countries, Latvia and Romania, we can see a different approach to the crisis-related measures judged by supreme courts. The Romanian Constitutional Court had to deal with several claims, both substantial and procedural, about the constitutionality of implementing measures required by the international financial assistance packages and the conditions settled in the Memorandum of Understanding (MOU). The first set of cases decided by the Constitutional Court—decision n. 1414/2009 and n. 1415/2009—refers to the constitutionality of Law 329/2009, which provided among other things the reorganization of public authorities and institutions, and the rationalization of public expenditure; and Law 330/2009 on a unitary wage system. These laws were challenged by the Members of the Parliament, also on the basis of the procedure through which they were adopted, which is the so-called “engagement of responsibility of the Government” provided by Art. 114 of the Constitution. According to this procedure, the Government puts at stake its responsibility in front of the Parliament with regard to a bill, a program, etc. If the Parliament does not approve a motion of censure, within three days from its presentation the act is considered approved, avoiding a direct scrutiny by the Parliament. Since the eruption of the crisis, this extraordinary instrument—as well as the emergency ordinance of article 115 of the Constitution—has been used in order to approve crisis-related measures, mainly impinging on social rights. It is precisely on the legitimacy of the contested procedure that the Court used the argument of the state of emergency. The Parliament argued that the use of the engagement of responsibility by the Government represents a deprivation of the Parliamentary prerogatives within the legislative process. On the contrary, the Court affirmed that the recourse to the procedure provided by art. 114 Const., leading to the end of obstructionism and filibustering, was necessary in order to respond promptly to the requirements of the International Monetary Fund. Even though the Court did not abstain from declaring unconstitutional several other provisions of law, such as those concerning the prohibition of cumulating the salary, it upheld the provisions concerning the obligation of the public authorities to cut the personnel expenditure by 15.5%. Even in this case, the emergency situation provides the key argument of legal reasoning: indeed the Court recognized that the challenged provisions impinged on the constitutional rights of property; but at the same time, it justified the restriction of that right in the light of the “budgetary constraints generated by the economic crisis”. Besides these aforementioned decisions, the Romanian Constitutional Court decided on a large number of cases dealing with austerity measures and social rights between 2009 and 2011, particularly concerning cuts in wages, pensions or 43 Marketou A (2017) Greece: Constitutional Deconstruction and the Loss of National Sovereignty. T Beukers T, de Witte B, Kilpatrick C (eds.) Constitutional Change through Euro-Crisis Law, CUP, p 194. 44 Ibidem, 194.

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other benefits. In this case law, a key role was played by the notion of the public interest, which, when used, provided an easy path towards constitutionality. The recourse to the public interest argument was used as a sort of passe-partout in order to justify rights restrictions, even without a formal declaration of a state of emergency (provided by art. 93 of the Romanian Constitution). Even in the Romanian case, we can recognize the effort of the constitutional judge to find a fair balance between “the general interest of the community and the protection of the fundamental rights of the individual” in times of crisis. Last but not least, in this brief comparative journey, we consider the Constitutional Court of Latvia, which ruled in several cases (eight between 200945 and 201046 ) on the constitutionality of crisis-driven measures. The cornerstone of the Latvian constitutional court’s reasoning in austerity measures is the principle of proportionality: “the constitutional court has already concluded that during economic recession or other extraordinary situations the principle of legal certainty requires the balancing of legal trust of persons with interests of the society. In a such a case, a decisive role is played by the fact whether the principle of proportionality has been observed”.47 The Latvian judges, as well as the Romanian, the Portuguese and the Greek ones, acted on the thin line between preserving the integrity of the constitutional order and admitting breaches in it justified by the emergency situation. Kilpatrick clearly observes that all these courts “found that the extremely serious economic/financial situation and the need for measures that are adopted to deal with it to be effective cannot serve as grounds for dispensing the legislator from being subject to the fundamental rights and key structural principles of the State based on the rule of law”.48 The reaction of constitutional courts to the austerity measures set to comply with international agreements is not only relevant for the domestic order, but also for the international and supranational context. Indeed, we cannot forget that the struggle that the courts were engaged in had an effect both on the balance of powers in the domestic domain, reshaping the relations between government and parliament, and on the supranational level, requiring ongoing negotiations of conditions among the actors involved. These are the two dimensions of the crisis jurisprudence we are going to debate in the following paragraphs.

45 Constitutional Court of Latvia, Case 2009 -08-01; case 2009-43-01; case 2009-44-01; case 200976-01; case 2009-88-01; case 2009-11-01. 46 Constitutional Court of Latvia, case 2010-17-01; case 2010-21-01. 47 Rasnaˇ ca Z, Latvia, Report in www.eurocrisislaw.eui.eu. 48 Kilpatrick C (2015) Constitutions, social rights and sovereign debt states in Europe: a challenging new area of constitutional inquiry. 43 EUI Working Paper Law p 12.

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2.2 Institutional Competition Between Different Constitutional Actors The jurisprudence of the crisis may be seen with the lens of “institutional competition” among different “powers” in the national constitutional arena, affecting the horizontal separation of powers. As already mentioned, within the transnational global order we are witnessing a new model of separation of powers, which affects and changes the traditional concept of institutional balance in the domestic domain. This phenomenon is not new: actors such as the IMF and the WB since the beginning of their mission, deeply influenced, through the use of conditionality, the internal sphere of public policy and of the separation of powers. The influence of the IMF and of the other financial institutions on national legal orders is key and it has been already assessed by the literature which has studied the role of the IMF in single countries or regions.49 The case of the role of the IMF (and in particular of conditionality) within the economic crisis in Europe, however, is quite unique for different reasons. Firstly, the influence of the international financial institutions came together with the influence of the EU legal order on the national member states. The intersection between international and European constraints over the Member States has, on one side, created some uncertainty about the legal nature of austerity measures, and on the other has strengthened the constitutional impact at the national level of the euro-crisis related measures. Secondly, the crisis erupted in a context characterized by a high level of interdependence among national states and this circumstance affected also the separation of powers in the domestic domain. In this context we witnessed the executive power in action in order to cope with the unexpected effects of the crisis and in order to comply with the conditions posed by the Troika; we have seen the judiciary stepping into the sphere of the political decision making, in order to sanction constitutional rights violations, being however aware of the constraints posed by the European context; last but not least, we have seen national parliaments been marginalized and called into to question only to ratify decisions already taken by the executive power and international authorities. In recipient countries, in particular, national parliaments remained in the penumbra of the decision-making process on financial programs and on conditionality. Negotiations of conditions are undertaken by governments, with parliaments confined to a role of the ratification of the decision taken in other fora, without the chance to assure democratic accountability control on their respective governments. Certainly, according to the domestic rules of procedures, national parliaments are not prevented from exercising their legislative powers when called to adopt the national measures necessary to implement the conditions established in the MoUs 49 For an economic analysis of the role of the IMF and of its policies see Stiglitz J (2002) Globaliza-

tion and its Discontents. W.W. Norton & Company. See also Dreher A (2009) IMF Conditionality: Theory and Evidence. Public Choice, 141, no. 1/2.

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and in bailout programmes. However, the power of a national parliament to refuse to implement the conditions signed by its government remains only written on paper. On the one hand, the conditions of assistance have been already decided by the Troika and the executives: national parliaments have just to accept the deal or maybe ‘draw some broad red lines of accepted policies rather than making concrete decisions’.50 On the other hand, national parliaments are forced to accept the conditions settled in bailout programme, since they are under a sword of Damocles with respect to the possibility of losing economic assistance. As Somma sharply argues: “the way of restructuring sovereign debt with assistance of the International Monetary Fund does not presume a formal instauration of the state of exception, nevertheless the latter may describe the position of parliaments towards governments involved in the implementation of the related structural adjustments. If all this does not directly lead to non-democracy, then it witnesses at least a big step towards it, which we may define in terms of post-democracy: a situation where democratic rules are formally in force, but also progressively limited in their effectiveness by governmental practices violating those rules. This is the main outcome of the technical governments who are called to follow the instructions coming from the International Monetary Fund, in a way that politics is reduced to economics”.51 In this scenario the role of the judiciary is key; indeed supreme courts acted in order to restore this unbalance of powers: “the extremely serious economic/financial situation and the need for measures that are adopted to deal with it to be effective cannot serve as grounds for dispensing the legislator from being subject to the fundamental rights and key structural principles of the State based on the rule of law”.52 The Portuguese Constitutional Court in declaring the unconstitutionality of several provisions affecting labor law and pensions, (Acordao no. 602/2013, no. 862/2013, no. 413/2014 and no. 575/2014) “seems to have urged the legislator to better exercise the competences and powers it seems to have given up in favor of international and European constraints”.53 The Court seems to properly interpret the role of the judiciary when the allocation of financial resources is at stake, as “a ‘policy partner’ in ongoing bargaining about how a state should use its scarce resources while under financial stress”.54 50 Ioannidis M (2016) Europe’s new transformations: how the EU Economic Constitution changed during the Eurozone Crisis. Common Market Law Review 53:43. 51 Somma A (2014) Legal Change and Sovereign Debt Crisis. The Clash Between Capitalism and Democracy in the Western Legal Tradition, Paulus C G (ed.), A Debt Restructuring Mechanism for Sovereigns. C.H. Beck, Hart, Nomos, p 177. 52 Kilpatrick C (2015) Constitutions, social rights and sovereign debt states in Europe: a challenging new area of constitutional inquiry. 43 EUI Working Paper Law p 12. 53 Cisotta C, Gallo D (2014) The Portuguese Constitutional Court Case Law on Austerity Measures: A Reappraisal, Kilpatrick C, de Witte B(eds) Social Rights in Times of Crisis in the Eurozone: the Role of Fundamental Rights’ Challenges. European University Institute LAW Working Paper 2014/05:93. 54 Lane Scheppele K (2004) A Realpolitik Defense of Social Rights. Princeton Law and Public Affairs, Working Paper Series, Working Paper No. 05-004:14.

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Some scholars have argued against this narrative of the role of courts in time of crisis: as Ribeiro55 affirmed, the Constitutional Court of Portugal acted wrongly, by making decisions on public issues which had been decided through democratically elected parties engaged in the political process. Moreover, Ribeiro stressed that the Court did a “disservice”, failing to exercise self-restraint by punishing the government when it made tough decisions. This kind of “juristocracy” according this narrative has been even exacerbated given that at the global level, the autonomy and accountability of governments is becoming blurred, and it is this context which is encouraging courts to encroach into politics.56 While dissenting on this narrative of the separation of powers during the crisis, we agree—paradoxically, with Ribeiro’s latest conclusions: since the national executive power is under pressure in the supranational arena, the role of national courts become even more fundamental. Courts, indeed, can “nudge policy in the direction of greater constitutional accountability even though they cannot dictate the end point of that policy”.57 In particular, “when a court says that a state must have some plan to deal with the economically desperate, the needs of the poor are brought onto the political agenda and have to be a feature of the resulting bargain”.58 Within this understanding, “constitutional court judgments can become a new resource for governments in dealing with lenders to argue for renegotiations of terms in order to maintain constitutionality”,59 and, ultimately, in order to defend the most vulnerable groups of the population.

2.3 The “Autarchy” of National Supreme Courts A third significant dimension of the economic crisis has occurred within the “vertical” relationship between national legal orders and the EU legal framework. This argument should be properly assessed in the light of the pluralistic and multilevel nature of the EU itself. The economic crisis has been, in other words, a new field of confrontation between different competing sources of power. The interdependency of Member States’ economies, societies, and institutions has emerged as an incontrovertible fact of the EU space: as Christian Joerges has observed, European societies now sense that “they are not or are no longer in a position to ensure responses to their concerns autonomously, but instead depend on transnational cooperation”.60 55 Ribeiro G A (2013) Judicial Activism Against Austerity in Portugal, Int’l J. Const. L. Blog. Dec. 3, 2013. 56 Ibidem. 57 Lane Scheppele K (2004) A Realpolitik Defense of Social Rights. Princeton Law and Public Affairs, Working Paper Series, Working Paper No. 05-004:14. 58 Ibidem. 59 Kilpatrick C (2015) Constitutions, social rights and sovereign debt states in Europe: a challenging new area of constitutional inquiry. 43 EUI Working Paper Law p 20. 60 Joerges C, Glinski C (eds) (2014) The European Crisis and the Transformation of Transnational Governance: Authoritarian Managerialism versus Democratic Governance. Hart Publishing, p 32.

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What makes the economic crisis analysis interesting in a multilevel perspective is that the interaction between national and supranational orders happened not in ordinary circumstances, as it usually have occurred, but in context of crisis, which took the shape, in certain member states, of a constitutional emergency. The EU legal framework was itself unprepared to deal with the risk of default of one of its member states, and it lacked effective legal tools to govern the economic crisis. This legal uncertainty was particularly determined by the original sin of the definition of competences in the field of economic and monetary policies within the Maastricht Treaty.61 In this scenario, which caught the EU legal framework completely unprepared to tackle the risk of default of one of its member states, the European response to the crisis has been a substantial use of international law when establishing economic mechanisms in order to sustain the economies of the Member States in difficulties, and, as it is well known, these decisions have been made even outside of the framework of the treaties. Even the legal nature of most significant sources of austerity measures, the Memorandum of Understanding is debatable. Some scholars have argued that they constitute “simplified agreements”, in the sense of Article V statute IMF, with no binding value nor restricting national sovereignty.62 According to this reasoning, they are just political programmes, containing programmatic provisions. In contrast, others recognize MoUs as international law treaties having binding force. This interpretation is based on International Court of Justice (ICJ) case law, which does not exclude an agreement not having the traditional form of a treaty from being considered as an international law treaty.63 The Constitutional Court of Portugal, seems to agree with the latter view, having underlined the binding effect of MoUs in its Acórdão n. 187/2013. Conversely, the Greek Council of State denied the categorization of international treaty to MoUs, designating them instead as political programmes, “setting targets to be achieved and policies to be implemented in due time”.64 Finally, still other scholars65 consider MoUs as sui generis acts, not being formally international treaties but having, however, their binding effects. The unresolved issue of the nature of MoUs also impacts on their status within EU law, and, in particular, on the question of whether or not they represent an 61 See Fabbrini F (2016) Economic Governance in Europe: Comparative Paradoxes and Constitutional Challenges. Oxford University Press. 62 See Marketou A I, Dekastros M (2014) Constitutional Change through Euro Crisis Law: A Multi-Level Legal Analysis—Greece, Department of Law, European University Institute, p 101. 63 Qatar v Bahrain (1994) ICJ Reports, quoted by Fischer-Lescano A (2014) Human Rights in Times of Austerity Policy. The EU institutions and the conclusion of Memoranda of Understanding. Legal opinion commissioned by the Chamber of Labour, Vienna, p 33. 64 Contiades X, Tassopoulos I A (2013) The Impact of the Financial Crisis on the Greek Constitution. X. Contiades X (ed) Constitutions in the Global Financial Crisis: A Comparative Analysis. Ashgate, p 203. 65 Fischer-Lescano A (2014) Human Rights in Times of Austerity Policy. The EU institutions and the conclusion of Memoranda of Understanding. Legal opinion commissioned by the Chamber of Labour, Vienna, p 34.

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implementation on EU law, and therefore if they are justiciable in the light of the EUCFR. According to ECJ case law, MoUs do not constitute an implementation of EU law. Constitutional Courts had to move in this uncertain and new terrain. The response to this ambiguity of the legal framework of austerity measures, has led apex courts to develope, in some cases, a sort of “autarchy” with respect to the EU legal system. Indeed, It had been argued that many courts of the so called “debtor countries” exercised a kind of autarchism, “played by the removal/repression of the interrelation of the EU law and national constitutional law in the adjudication on recent austerity measures”.66 According to this view, “the hermeneutics of national constitutionalism are “protected” from any impact from EU Law. Such practice could be classified as a removal since it aims at avoiding that different competing interpretations on the same matters may find their space in the multilevel/plural judicial architecture and need to be reconciled”.67 This is quite clear looking at the legal reasoning deployed by courts: the unconstitutionality of austerity measures has been often grounded on the violation of well-established constitutional principles, which are interpreted without any hermenautical reference to the EU law. common both to the national and to the European legal frameworks (equality, proportionality, legitimate expectation), and not on the violation of specific fundamental rights (mainly social rights). As it has been argued, this strategy is part of an overall tendency to “remove the Constitution from possible constraints of international or EU obligations and an autarchic construction of legal arguments”.68 This kind of insulation—which can be find, implicitly or explicitly in different national case law dealing with the crisis—appears quite problematic, especially if it is read in light of the current moment of the EU integration: a context characterized by a growing narrative challenging the EU authority, often seen as a constraint over the expression of national sovereignty and identity. These tensions, which to a certain extent can be considered inherent in the nature of the multitier, pluralistic and composite system, become more evident in times of emergency, often characterized by the rise of constitutional dissent and conflict between local, national and supranational actors.

66 Maduro

M P, Frada A, Pierdominici L (2017) A Crisis Between Crises: Placing the Portuguese Constitutional Jurisprudence of Crisis in Context. E-pública, vol. 4, n.1:31. 67 Idem. 68 Ibidem.

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3 Conclusions An economic emergency within the EU legal framework represents a sui-generis69 case: while within the constitutional state, emergency is often tackled by strengthening the executive power, at the EU level we have witnessed the flourishing of different institutions with the specific task of governing the crisis. Economic emergencies have been addressed with a sort of legal improvisation that has led to the circumvention of EU law. The legitimacy of crisis related measures is still controversial and debated. In such a scenario dominated by legal uncertainty and by the “elusiveness and obscurity” of the state of emergency, “due to the dispersal of the decisions on emergency measures”,70 Courts acquired a pivotal, even though not univocal role. Paradoxically, it is the nature of the EU response to the Eurozone crisis and the lack of emergency provisions within the EU legal framework that have triggered the judicial intervention in highly controversial issues. In comparing the case law of national supreme courts, we have noticed a common attitude: all of them—with their specific features—engaged in the sensitive and double-sided task of accommodating on one side the protection of core constitutional values and individuals’ fundamental rights, and on the other side the contingent necessities caused by the economic crisis and the public interest of the State. At the national level, even if the different courts showed diverse attitudes, different degrees of deference towards the national legislative branch and the use of different arguments and standards, they acted with a great awareness of the impact of their decisions in times of economic crisis with regard to the social rights protection and to the separation of powers. In times of normalcy, probably national courts’ approach would have been defined as case of judicial activism or juristocracy, i.e. the interference of the judiciary within the democratic and legitimate choices of other institutional actors within the State. But in times of crisis, as we have already pointed out, juristocracy charges have to take into account that the democratic process is so to speak challenged by the influence of the international actors, and by the use of emergency procedures, usually expanding the executive power and shortcutting parliamentary prerogatives. In such a scenario, the role of the judiciary has to be reconsidered: “Constitutional courts need not be seen as obstacles to democratic decision-making; rather, constitutional courts may emerge under this analysis as the very institutions that allow democratically elected politicians to support the needs of their constituents at the most difficult moments. More generally, constitutional theorists should also rethink the role of courts in constitutional democracies. Before immediately concluding that courts interfere with democratic processes, one should first examine how much self-determination fragile

69 See

in this volume Bertolini E Financial Crisis as a New Genus of Constitutional Emergency?.

70 See in this volume Kuo M S From Institutional Sovereignty to Constitutional Mindset: Rethinking

the Domestication of the State of Exception in the Age of Normalization.

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governments actually have. In the new world financial order, courts—and the constitutional vision they bring to tough problems of poverty and economic restructuring— may be the only institutions that can balance market fundamentalism with a concern for democracy, constitutionalism and human rights”.71

References Akrivopoulou CM (2013) Facing l’etat d’exception: the Greek crisis jurisprudence. Int J Const L Blog Bertolini E. Financial Crisis as a New Genus of Constitutional Emergency? in this volume Brancati B (2015) Decidere sulla crisi: le Corti e l’allocazione delle risorse in tempi di “austerità”’ n. 16 Federalismi.it. www.federalismi.it Böckenförde EW (2010) Kennt die europäische Not kein Gebot? Neue Züricher Zeitung Canotilho M, Violante T, Lanceiro R (2015) Austerity measures under judicial scrutiny: the Portuguese constitutional case-law. Eur Const Law Rev 11 Cisotta C, Gallo D (2014) The Portuguese constitutional court case law on austerity measures. Reappraisal A, Kilpatrick C, de Witte B (eds) Social rights in times of crisis in the eurozone: the role of fundamental rights’ challenges. European University Institute LAW Working Paper 05 2014 Contiades X, Tassopoulos IA (2013) The impact of the financial crisis on the Greek constitution. Contiades X (ed) Constitutions in the global financial crisis: a comparative analysis. Ashgate Dawson M (2015) The legal and political accountability structure of post-crisis EU economic governance. JMCS 53:5 De Witte B (2015) Euro crisis responses and the EU legal order: increased institutional variation or constitutional mutation?. Eur Const Law Rev 11(3) Dreher A (2009) IMF conditionality: theory and evidence. public choice, 141(1/2) Fabbrini F (2016) Economic governance in Europe: comparative paradoxes and constitutional challenges. Oxford University Press Fasone C (2014) Constitutional courts facing the euro crisis: Italy, Portugal and Spain in a comparative perspective. EUI MWP 25 2014 Working Paper Fischer-Lescano A (2014) Human Rights in Times of Austerity Policy. The EU institutions and the conclusion of memoranda of understanding. Legal opinion commissioned by the chamber of labour, Vienna Hirschl R (2007) Towards Juristocracy: the origins and consequences of the new constitutionalism. Harvard University Press Ioannidis M (2016) Europe’s new transformations: how the EU economic constitution changed during the eurozone crisis. Common Mark Law Rev 53 Joerges C (2014) Europe’s economic constitution in crisis and the emergence of a new constitutional constellation. Ger Law J 15(5) Joerges C, Glinski C (eds) (2014) The european crisis and the transformation of transnational governance: authoritarian managerialism versus democratic governance. Hart Publishing Kilpatrick C (2015a) Are the bailout measures immune to EU social challenge because they are not EU law? Eur Const Law Rev 10:03 Kilpatrick C (2015b) Constitutions, social rights and sovereign debt states in Europe: a challenging new area of constitutional inquiry. 43 EUI Working Paper Law King J (2012) judging social rights. CUP

71 Lane

Scheppele K (2004) A Realpolitik Defense of Social Rights. Princeton Law and Public Affairs, Working Paper Series, Working Paper No. 05-004:40.

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Kuo MS (2019) From institutional sovereignty to constitutional mindset: rethinking the domestication of the state of exception in the age of normalization, in this volume Lütz S, Kranke M (2014) The European rescue of the Washington Consensus? EU and IMF lending to Central and Eastern European countries. Rev Int Polit Econ 21(2):310–338 Maduro MP, Frada A, Pierdominici L (2017) A crisis between crises: placing the portuguese constitutional jurisprudence of crisis in context. E-pública 4(1) Marketou A (2017) Greece: constitutional deconstruction and the loss of national sovereignty. Beukers T, de Witte B, Kilpatrick C (eds) Constitutional change through Euro-crisis law, CUP Marketou AI, Dekastros M (2014) Constitutional change through euro crisis law: a multi-level legal analysis—Greece, department of law. European University Institute Martinico G (2014) EU crisis and constitutional mutations: a review article. Revista de Estudios Políticos (nueva época) 165:247–280 Menendez A (2014) Editorial: an European union in constitutional mutation?. Eur Law J 20(2) Nogueira De Brito M (2014) Putting social rights in brackets? The portuguese experience with welfare rights challenges in times of crisis. Kilpatrick C, de Witte B (eds) Social rights in times of crisis in the eurozone: the role of fundamental rights’ challenges. EUI WP 05 2014 Nolan A (ed) (2014) Economic and social rights after the global financial crisis. CUP Psychogiopoulou E (2014) Welfare rights in crisis in Greece: the role of fundamental rights challenges.In: Kilpatrick C, De Witte B (eds) Social rights in times of crisis in the eurozone: the role of fundamental rights’ challenges (2014). EUI WP 05 2014 Rasnaˇca Z, Latvia, Report in www.eurocrisislaw.eui.eu Ribeiro GA (2013) Judicial activism against austerity in Portugal. Int’l J. Const. L. Blog. Dec. 3, 2013. Scheppele KL (2004) A realpolitik defense of social rights. princeton law and public affairs, Working Paper Series, Working Paper No. 05-004 Somma A (2014) Legal change and sovereign debt crisis. the clash between capitalism and democracy in the western legal tradition. In: Paulus CG (ed) A debt restructuring mechanism for sovereigns. C. H. Beck, Hart, Nomos Stiglitz J (2002) Globalization and its discontents. Norton & Company, W.W Tassopoulos I, Political emergencies as challenges to the impartiality of public law. In this volume Tomkin JJ (2013) Contradiction, circumvention, and conceptual gymnastic: the impact of the adoption of the ESM treaty on the state of European Democracy. Ger Law J 14 Tuori K, Tuori K (2014) The eurozone crisis: a constitutional analysis. CUP

Antonia Baraggia is Assistant Professor of Comparative Law at the University of Milan, Department of National and Supranational Public Law. She is Principal Investigator of the project CONFEDERAL on fiscal federalism and social rights, awarded by the Cariplo Fundation. She holds a Ph.d. in Public Law from University of Turin. In 2019 she has been Visiting Fellow at the Max Planck Institute for the Study of Religious and Ethnic Diversity in Goettingen (Germany). She serves as Chair of the Executive Board of the Younger Comparativists Committee (YCC), American Society of Comparative Law. Her research interests include the role of courts, conditionality in the EU, economic and financial crisis, socio-economic rights and fiscal federalism considered in a comparative perspective.

Financial Crisis as a New Genus of Constitutional Emergency? Elisa Bertolini

Abstract The focus of the chapter is the feasibility of the construction of the economic crisis that struck Europe in the last decade as a sort of new genus of constitutional emergency. Four main points have to be considered: first, the constitutional response to the economic emergency through the entrenchment of new emergency provisions (or by using already existing provisions) and their legitimacy; second, once the emergency concluded, the concrete possibility to restore, partially or completely, the status ante, in particular with respect to rights protection and, third, if this is not the case, how constitutionalism can react to the economic emergency; forth the theoretical possibility to equate economic crisis to the more traditional emergency situations and, if not, to face a sort of new genus of emergency with all its implications. The issue will be confronted at the EU and member states level.

I shall ask the Congress for the one remaining instrument to meet the crisis, broad executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe. Franklin Delano Roosevelt, First Inaugural Address, 4th March 1933.

1 Introduction The recent financial and economic crisis, which affected Europe since 2010, put under a considerable strain the constitutional order of both the EU and the member states. The crisis had turn to be two-faced, because it has affected not just the economic and financial spheres but also the constitutional order of the Eurozone. It is possible to argue that the constitutional crisis was not triggered by the debt crisis itself but simply brought to light. It is undoubted that the recent years are characterised by a E. Bertolini (B) Department of Legal Studies “Angelo Sraffa”, Bocconi University, Milan, Italy e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_13

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deep weakening of political institutions and a progressive detachment and distrust from the civil society towards the traditional political establishment. The focus of this chapter is the feasibility of the construction of the present day economic crisis as a sort of new genus of constitutional emergency. Therefore, the claim is not that any economic crisis has to be framed as an emergency, but certain crisis surely can be. In particular, the analysis will focus on four main points: 1. the constitutional response to the economic emergency through the entrenchment of new emergency provisions (or by using already existing provisions) and their legitimacy (para 4.1–4.2); 2. once the emergency concluded, the concrete possibility to restore, partially or completely, the status ante, in particular with respect to rights protection (para 4.3); 3. if not, how constitutionalism can react to the economic emergency (para 4.4); 4. finally, the theoretical possibility to equate economic crisis to the more traditional emergency situations and, if not, to face a sort of new genus of emergency with all its implications (para 5). From a methodological standpoint, following a normative approach, the issue will be confronted at two different layers of territorial governance, EU—that in certain cases has opted for an extra-EU intervention opening at the IMF and therefore at a third level (international)—and member states. Furthermore, it is not possible to examine the European level without focusing on its interaction with the member state counterparts. However, the chapter examines the anti-crisis measures and instruments enacted at EU and international level as far as they are relevant to the analysis, namely from a more methodological standpoint in terms of emergency, focusing on the legitimacy of their adoption procedure, on the accountability for the measures enacted, on the fallout in terms of protection of rights and on the monitoring system. The same approach will guide the analysis at the national level, where the primary focus is on the constitutional source and then on their fallout. Thus, the chapter will be structured into three main parts: the first two parts are more descriptive—the EU level and the national level—whereas the third will be more constructive, trying to outline the critical issues emerging from the previous parts.

2 Critical Issues of the New EU Economic Governance The EU was unprepared to face an economic crisis of such a proportion. The institutions have proved to be unfit to face effectively the economic emergency as well

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as the structure of the economic governance, founded on the Maastricht principles and their asymmetry.1 The crisis posed two main challenges: the response to it and the rethinking (rectius, reform) of the economic governance in a preventative perspective. The situation has required a coordinated continental approach consisting of a series of measures, some based on the Treaties provisions, while others consisting of rescue packages and the establishment of new financial stability mechanisms—the European Financial Stabilisation Mechanism (EFSM) and the European Financial Stability Facility (EFSF) and the European Stability Mechanism (ESM).2 The TFEU contains a certain number of provisions that have been the basis of the response to the crisis—such as the emergency provision at Article 122(2), the prohibition of central-bank financing at Article 123 TFEU, the no-bail out clause at Article 125(1) TFEU or the provisions on mutual surveillance procedure at Article 121 TFEU and excessive deficit procedure at Article 126 TFEU (Tuori 2012)—but it failed at envisaging the possibility of a sovereign debt crisis and insolvency not limited to a single member state but spreading in the whole Eurozone (Calliess 2011). The rescue packages have an immediate goal, namely to provide assistance to the most hit countries and prevent contagion, while the reform of the economic governance should fill the gap of the Maastricht architecture. The distinguishing feature of the crisis management has been the resort to intergovernmental agreements—outside the EU legal framework—some having a private law character (Greece rescue packages and the EFSF agreement) while others under public international law (ESM and TSCG Treaties). One of the main differences of these mechanisms—which all have different legal form—is related to the legal status acquired by the states taking part to them: creditors in the Greek aid package of May 2010, guarantors in the EFSF, shareholders in the ESM, whereas in the EFSM their liability depends on their contributions to the EU budget. However, the most serious concern is not connected to the states’ legal status, but involves the recipient states, namely the strict conditionality of financial assistance (mentioned also at Article 136(3) TFEU). Moreover, the MoUs3 signed by these states, besides imposing cuts in public expenditures, determine their allocations, foster austerity, and market-liberally oriented structural reforms. Furthermore, Directive 2011/85 marked new constraints to national fiscal sovereignty, requiring that ‘member states shall have in place numerical fiscal rules on the budget balance that implement in the national budgetary processes their 1 Where

the principle of national fiscal liability means the principle of member state fiscal sovereignty. 2 The establishment of the ESM was preceded by a Treaty amendment through the simplified procedure under Article 48(6) TEU that added to Article 136 TFEU the new para 3. 3 The memoranda of understanding (MoUs) are agreements pertaining to states in receipt of socalled bailout packages with the Commission, European Central Bank and International Monetary Fund collectively acting as enforcers and compliance monitors. As states exit financial programmes MoUs will become defunct.

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medium-term budgetary objective’ as well as that ‘such rules shall cover the general government as a whole and be of binding, preferably constitutional, nature’. Another key reform was the TSCG that imposed on the signatory states the duty to implement budget rules into national legislation by January 2014.

3 Crisis-Related Measures as Emergency Provisions Regardless to whether constitutions provide for emergency sections, they usually provide for emergency instruments, such as the possibility for the executive power to issue decrees with a faster adoption procedure with respect to the ordinary one. Can this pattern be applied to an economic emergency? Can all the crisis-related measures, adopted both at supranational and national level, be described as pure and ‘classical’ emergency provisions? Are they transitory, as emergency provisions should be? How are they adopted and through which instruments? In addition, to what extent do they affect and infringe fundamental rights? The possibility to consider an economic crisis similar to a constitutional emergency is not new. Schmitt already examined the issue, positively answering the question, equating economical and financial crises to armed insurrections thereby for justifying executive recourse to emergency power. Moreover, if the defining trait of an emergency is the needed for an immediate action, there is no doubt that the sovereign debt crisis can be qualified as such. However, this is just a first step, since what becomes relevant is the duration of the emergency and the restoration of the status ante. Schmitt himself did not envisaged the state of exception as a permanent condition; his justification of a ‘commissarial dictatorship’ was meant to overcome the critical issue marking the departure from the rule of law and to regain the normal constitutional order. However, in my view, the core point is not whether an economic crisis can be considered an emergency, but whether the crisis-related measures are compatible with the usual traits of traditional emergency provisions. Did the prompt action required followed a legitimate procedure, envisaged for emergencies, and how much temporary is its effect? Furthermore, if the equation is not possible, what are we facing? We should try to examine the issue at both European and internal level.

3.1 Accountability Concerns at EU Level As noted above, the EU provided for insufficient instruments to face a huge economic crisis. Therefore, the need for emergency measures. However, the management of the crisis at the EU level has arisen many constitutional concerns, mainly in terms of legitimacy and accountability of the procedures providing for the new instruments, mechanisms, and effects in the long term on the rights protection.

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Considering the first point, concerns derive from the recourse to intergovernmental agreements allowing a sort of sidestepping of the procedure to amend the Treaties and to adopt secondary legislation. These provisions grant the involvement of all EU institutions, the parliament in particular (considerably strengthened by the Treaty of Lisbon, which enshrined in Title III TEU the principles of democracy and transparency), and member states, whereas the intergovernmental agreement involves just the contracting parties, namely the executives and not the parliaments, of the contracting states. The efforts to engage more actively the European and national parliaments have been irrelevant. With respect to the EU parliament, in particular, its role has been very peripheral, merely consisting in the right to receive information. The provisions in the six-pack and two-pack legislation requiring an economic dialogue between institutions and in case also with member states, seem rather weak and not fitted to plug the democratic and accountability gap. Still it is quite dubious that modest involvement of the EU parliament may be related to the fact that part of the new economic governance bounds not all the member states, which are actually represented in the parliament. However, it cannot be justified to exclude almost completely national parliaments in order to avoid that the unconcerned may intervene. Going back to the choice for intergovernmental agreements, the reasons may be traced, for financial stability mechanisms in the lack of taxation power of the Union— leading to the impossibility to concretely maintain a financial stability—and, for the TSCG, to overcome the UK (and the Czech) veto that cut the way within in Union. In other words, the international level has proved to be more flexible then the EU framework for the purposes of the Union itself. Moreover, since the intergovernmental agreements bind just the contracting parties, an EU at different speed is perpetuated, since it is like legitimising the strengthening of the cooperation between some member states (deepening disparities between Eurozone countries and non-Eurozone countries) without relying on the ordinary procedure provided for by the Treaties. A further concern is related to the institutional side, since the agreements have led to the conferral of new competences to already existing EU institutions—the commission, the court and the ECB—as well as to the establishments of new institutions, thus creating a parallel institutional structure. What shall we conclude? Is not the prompt action that has to be questioned, but the legitimacy of the chosen procedures. Member states, being confronted with a vacuum in the Treaties provisions on the economic governance, have opted for solutions established partly outside the EU legal order—meaning outside the checks and balances system of the EU institutional architecture—and partly within it. Nevertheless, also in this case, the amendment of the TFUE was carried out through the simplified procedure—which is has been harshly criticised by the BVerfG and the Czech constitutional court. Therefore, there is a serious violation of the democratic principle (amplifying the notorious European democratic deficit) and a basic lack of accountability in the adoption of these countermeasures that are all but temporary. Indeed, it is quite unlikely that, the emergency concluded, there would be a step back, meaning an attempt to frame the new economic governance within a more

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accountable legal order where parliaments and courts can play a more concrete role in both the shaping of the provisions and in the monitoring of the new governance. What emerges is the lack of constitutional boundaries for the new economic emergency, deriving from the impossibility to equate this emergency to more traditional emergencies, as well as to the weakness of the controls that can be performed by both parliaments and courts (not only in the rights protection field but also in terms of accountability and infringement of the democratic principle). This sort of extra ordinem approach has been justified in the name of the state of exception generated by the crisis as the BVerfG has argued in its first preliminary reference to the European Court of Justice (German Law Journal 2014). The preservation of the common currency has become the legal basis for the state of emergency and for the connected measures. Moreover, it has emerged the need to protect these measures from a possible failure if inserted in the ordinary democratic process. Therefore, we return to the problem of accountability. The complete lack of any political debate, both within and outside parliament in Italy (but not just here) that has characterised the entrenchment of the debt brake rule is probably one of the most prominent example of the attitude of the executive power. Indeed Crum (2013) has outlined what can be defined as the EU trilemma, namely the impossibility to pursue a combination of autonomous nation-states, economic and monetary integration and democratic politics. More precisely, the trilemma lays in the fact that you can actually pursue just two of these targets, but at the expenses of the third. It is a matter of priorities. The present day situation can be considered as giving priority to the EMU and the autonomy of member states at the expenses of democracy. Indeed, it is possible, when looking at the recent reforms in the economic governance of the Eurozone, to identify a sort of authoritarian constitutionalism (Oberndorfer 2015; Streeck 2014). Moreover, it still has to be proven that this empowerment of the executives can really foster the economic growth. The same concern goes for the austerity policies, upon whose effectiveness economists still debate (De Grauwe 2013; Blanchard et al. 2012).

3.2 Accountability Concerns at National Level Coming to the national level, constitutions may or may not provide for an emergency section, and even for an explicit economic emergency. Some constitutions, as the Portuguese one (Articles 19 ff), mention cases posing a ‘serious threat to or disturbance of constitutional democratic order’ and an economic crisis is interpreted as such. Moreover, the same provisions usually provide for the same pattern in the management of the emergency, namely broader power to the government, suspension of the exercise of some rights and freedoms. Furthermore, strict rules govern the declaration of the state of emergency, its grounding, the specification of the rights and freedom that can be suspended, the time extent, the respect of the principle of proportionality.

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It is convenient to underline that none of the countries seriously affected by the crisis and having constitutional emergency provisions has resorted to them. Regardless of the emergency section, any constitution provides for instruments at the disposal of the executive power whenever a peculiar situation of necessity, urgency or emergency occurs. Usually these instruments are decrees adopted by the government and immediately effective. The main concern is their misuse in situations that lack a proper emergency nature and thus the following sidestepping of ordinary parliamentary procedure. Italy is a perfect example of misuse of the decree power of the government. The Italian constitution lacks an emergency section but Article 77 provides for the government adopting the so-called law decree in situations of extreme necessity and urgency (the word emergency is not mentioned). The decree immediately enters into force, and from this moment onwards, the parliament has a 60-day time to transpose it into an ordinary statute law, otherwise it loses all its effects ab initio. As a typically emergency instrument, the Italian law decree has a temporary nature and at the same time is scrutinised by parliament that has also to judge on the real existence of the necessity and urgency. If parliament does not convert and the emergency situation still stands, what can the government do? From a constitutional standpoint, re-issuing a new law decree whose text is identical to the one not converted and founded on the same emergency is not legitimate. Leaving aside the abuse of the instrument perpetrated by governments until the sanction of the constitutional court (decision no 360/1996), the question that arises is to what extent such an instrument can successfully handle an economic crisis? The constitution does not say much on law decrees; therefore it has been parliament that has intervened in setting some limits through the law no 400/1988 (in particular Article 15). Other limits have been set by the constitutional court. The court has stated the need for a focus on defined and specific interventions, characterised by immediate financial effect, thus excluding the possibility for more organic and comprehensive reforms that require an ordinary statute law passed by the parliament. The Monti Government (2011–2013) tried a global reform of the territorial organisation of the country, namely through the abolition of the provincial level in order to save more money and foster the economic recovery, and since the situation was believed to be of necessity and urgency, a law decree was issued. It was quashed by the court, because global reforms cannot be performed through an emergency instrument. Therefore, is quite unlikely that governments can resort to this kind of emergency instruments in order to manage the crisis. The ordinary legislative procedure remains the sole possible option. However, this leads to further concerns, in particular the extent of the freedom of action of national parliaments and governments (but also of courts, both ordinary and constitutional) in the concrete design of crisis-related measures, since the high level of intertwinement between the national and the EU level. A key moment has been the implementation in almost all the Eurozone of the TSCG, mainly through constitutional entrenchment. A common feature of these constitutional amendment processes has been the extreme speed and the absence of a real political debate within the parliament and

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the lack of an adequate information of the public opinion. The executive power played the leading role, surely shielding behind the emergency situation and the liet-motiv that the amendment was requested by the EU and essential to exit the crisis (Luciani 2013a, b; Groppi 2012; Giupponi 2014; Morrone 2014). Besides the common decision of Eurozone countries to entrench the debt brake rule, when considering the freedom of action of national parliaments, governments and courts, we have to mention the peculiar situation of the Eurozone countries that have entered the MoUs and that, in doing so, are bound to promote a series of market reforms and cuts to the welfare in order to be granted financial assistance by the commission, the ECB and the IMF. Even though these reforms have been carried out not through emergency instruments but ordinary statute laws, serious concerns persist, since parliaments were basically stripped of the freedom of discussion and proposal of amendments and thus reduced to institutions merely ratifying decisions made elsewhere, not under the scrutiny of any elected body and that have to be abode also by national governments. Another key point is whether it should be considered to be within the constitutional framework an amendment process performed under such pressure from forces clearly set outside the democratic circuit, even though these amendments followed the lawful procedure. It is not uncommon the case of unconstitutional constitutional amendment (Roznai 2017). It seems that parliaments and governments enjoy a narrow freedom of action when implementing crisis-related measures. Does the same go for courts? Depending on the constitutional justice model, statute laws and international treaties can be reviewed, abstractly or concretely, preventatively or repressively. Therefore, a possible active stance of courts may counterbalance the narrow action of national parliaments and governments. The Portuguese and the Italian constitutional courts can provide good examples. When considering the former, the first striking element is that the decisions dealing with the austerity laws have been issued within an abstract review.4 Moreover, the court has raised no argument related to EU law. The attitude of the Portuguese court has been quite ambivalent, shifting from cases of deference toward the legislature to striking down provisions of the budgetary laws. The shift has been marked starting from 2011, when the rescue package was adopted. The implementation of the rescue programme led to a dramatic cut to a wide range of welfare entitlements such as rights to housing, health, education, food, and social assistance. Such changes include reductions in financial benefits or benefits in kind, the exclusion of categories of persons from certain social benefits as well as the state’s general withdrawal from its activities relating to the accomplishment of constitutional entrenched social rights. From this moment onwards, we witness a clear change in the interpretation of the parameter represented by social rights. Indeed, if in the decision no 396/2011 a 4 The abstract proceeding can only be initiated by the president of the Republic, the prime minister,

the ombudsman, the general prosecutor and a certain number of members of parliament (Articles 278 and 281).

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limitation of these rights was justified from the standpoint of the implementation of the Growth and Stability Pact, the same limitation was not justifiable anymore once the new budgetary laws started to be implemented. This was related in particular to the 2012 and 2013 budgetary laws enabling the government to temporarily implement pensions and wages cuts in the public sector. Moreover, the court struck down the public pensions system’s reform (decision no 862/2013) for violation of the principle of protection of legitimate expectations. The court grounded its new activist approach on the violation of general constitutional principles, such as equality (between public and private workers), proportionality and protection of legitimate expectations. This is important because this activist stance was not based on the wide catalogue of social rights, despite the wideness of the constitutional catalogue of social rights (Articles 63–72). It is indeed convenient to point neither out that this constitutional commitment to social rights has not given rise neither to a culture of judicial enforcement of social rights nor to a reduction of socioeconomic inequality (Nogueira de Brito 2014), maybe because of the ‘clientelist’ model of social policy-making, with a significant diversion of social benefits from the most needed (Vasconcelos Ferreira 2005). Surely, in shaping the approach of the court has been fundamental the lack of the balanced budget rule in the constitution, allowing the court to perform a balance test between social rights and fiscal and financial sustainability in favour of the first. What emerges from the case law is that the court does not question the necessity of austerity programmes, but only their fair application, namely in the burden share between public and private workers and pensioners. However, this activist stance of the court was subject to some criticism. The first critical point involves the application of the equality principle, which has been deemed to be too flexible, in order to achieve pre-determined objectives, as if the court were a legislator (Coelho and De Sousa 2013). The second concerns the intrusion in an allegedly exclusive competence of the national legislator, since the legislator should be granted a particularly wide margin of discretion in economic policy choices (Iannella 2016). A third major concern may be related to whether should be given a margin of intervention to constitutional judges on budget laws that implement international obligations. Should they be allowed to strike down, through declarations on unconstitutionality, measures agreed at international level by the Portuguese government and the troika? The Italian constitutional court has shown a less active stance. Due to the design of the constitutional review model, the Italian court cannot review the constitutionality EU and international Euro-crisis law, as well it is not possible an ex ante review of international agreements. The court had to face a massive challenged both by regions and by ordinary courts and what emerged is a general attitude based on the view that the legislative choices following the economic crisis, despite their severe cuts of public expenses, still seem to fit a welfare model compatible with the one designed by the Italian constitution. However, the court, relying on the fundamental decision no 349 of 1985, stressed that restrictive measures due to economic necessity are legitimate unless they are able to prevent differences in treatment among categories of workers.

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When coming to the relationship between social rights and available resources, the court recalls another of its fundamental decisions (decision no 455/1990), stating the importance to perform the bilanciamento (balancing test), preserving legislative discretion on the distribution of public resources (Romeo 2013). The court has also dealt with the type of legal source apt to introduce crisis-related measures. Since they are mainly adopted by the government, and therefore through law decrees, the court has stated the need for a focus on defined and specific interventions, characterised by immediate financial effect, thus excluding the possibility for more organic and comprehensive reforms that require an ordinary statute law passed by parliament. Another important aspect that the court had to examine is how to conceal the economic crisis laws with the financial autonomy of the regions. The latter, despite been legitimate from a constitutional perspective, should be characterised by a transitory character and therefore, not being permanent (decision no 193/2012). As the Portuguese court, the Italian one too grounds its reasoning on the core constitutional principles of proportionality and reasonableness. Moreover, another core foundation of the court’s decisions is the need for a systematic interpretation of the constitution. The court approach is a case-by-case one, taking into account its specific features and effects. The main reason is that it cannot be said in advance that the principles of efficiency and economy have to automatically prevail over the others. Again, even at a national level, it is possible to detect the same concerns with respect to the lack of accountability and the infringement of the democratic and proportionality principles that characterise the new European economic governance.

3.3 Rights Infringements The lack of accountability and the infringement of the democratic principle do not exhaust the concerns, where the most remarkable is the one related to the infringements of fundamental rights due to the progressive dismantling of the welfare rights (See in this volume Baraggia, Economic Crisis and Fundamental Rights Protection: The Case Lawon Austerity Measures in Comparative Perspective). The erosion of the welfare national model is not anew. In the EU, the subordination of the social to the economic constitution was never in doubt. In social policy, division of tasks and competences between the community and the member states followed the guidelines adopted in economic policy, meaning states’ sovereignty. However, the Maastricht economic architecture introduced further constraints to states’ sovereignty due to the strict intertwinement of social policy with fiscal policy. Moreover, the economic crisis has introduced serious and further constraints to both, since social spending is the major victim of the austerity programmes, which the recipient states have been forced to accept as a price of assistance. Indeed, if one examines the MoUs as well as the Council decisions ex Article 126 TFEU no reference is found neither to the European social charter nor to the solidarity title of the

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EU charter of fundamental rights. It may be surprising, since the former binds the member states and is explicitly invoked at Article 151 TFEU and has been included by the CJEU in the common European constitutional tradition defining fundamental rights as general principles of EU law, while the latter has legal effect under the Treaty of Lisbon. The commission should monitor, when coming to the European Semester, the possible infringements of such rights deriving from the new economic governance. EU institutions and member States, when acting under the European semester, are not out of the scope of the charter. However, if we closely look at the strategy on the charter of 2010, the enforcement mechanism is quite defective, mainly for two reasons. The first one is that this strategy is based on a community method of policy-making that is not used anymore in the economic governance, which, on the contrary, relies on a high complex mechanism of EU and extra-EU legislation. The second is the poorness of the CJEU case law on social rights and this is relevant since the Commission’s engagements toward rights is strictly intertwined to the CJEU case law (based on the proportionality principle). Nevertheless, the Treaty of Lisbon stresses the EU commitment to social rights. The horizontal clause at Article 9 requires that all EU actions have to take into account ‘the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’. This provision has to be interpreted in the light of an integration between social policies on the one hand and macroeconomic and budgetary policies on the other. Moreover the Council of Europe, through the European committee of social rights (ECSR), shows a far greater commitment in the protection of social rights. It is therefore possible to argue that, in order to respect the proportionality test, a distinction should be introduced between policies that may breach ECSR minimum standards and policies explicitly contrary to the ideal standards: the former should be prohibited while the latter should require a well-grounded justification (Pye and Parker 2016). Emergency provisions always lead to possible rights infringement or suspension. Therefore, here the question is whether there is any difference in terms of rights infringement/suspension between traditional emergency provisions and the crisisrelated measures adopted within the EU and at national level. A possible answer is that they usually differ with respect to the subjective effect—more general, affecting major segments of the population in case of economic emergency—as well as to the categories of rights affected. Moreover, is the external conditionality itself requiring measures that probably will violate rights or is the way these measures are nationally implementing leading to such violations? The IMF has indirectly considered the issue by stating that any country has the primary responsibility for selecting, drafting and implementing the policies that will meet the IMF requirements to make the IMF programmes successful. However, here another problem arises: the extent of the freedom of action that is left to national governments and parliaments when coming to the adoption of the measures. In addition, if the extent of freedom is almost inexistent, who should be held responsible? According to the Greek argument, since Greece relinquished her sovereignty to international institutions, she cannot be held responsible for the

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austerity policies linked to the conditionality to get external support. The ILO had claimed, back in 2011, that the Greek government was completely powerless in front of the troika. No preventative assessment of the impact of the measures was conducted…. Being the IMF far beyond the reach of international obligations concerning rights, the same cannot be said when coming to the other actors, all EU institutions and therefore bound to fundamental rights obligations under the EU charter (Article 51(1)). Here the key question is represented by the fact that part of the governance of the crisis is handled outside the EU; the ESM is an international organisation created by the then 17 Eurozone countries under a non-EU intergovernmental treaty. Therefore, since neither the EU member states nor the ESM are implementing Union law, none seems to be bound to the EU Charter. Despite this was contested in Pringle,5 the CJEU upheld the mechanism and its being out of the scope of the Charter (Bertolini 2013b). The result is a paradox, because it seems allowing EU institutions to do outside the EU something that they are defended to do within the EU. The CJEU has not really confronted the issue, preferring to avoid a potentially explosive controversy. However, always in Pringle, according to the interpretation of Article 51(1) by AG Kokott, EU institutions are always bound to the Charter; the same conclusion has been reached by the committee of constitutional affair of the parliament. Therefore, when considering the member state taking part to ESM, where does the responsibility actually lay? Namely, is the ESM responsible or the State participating in the mechanism? Under Article 61 International Law Commission’s (ILC) Draft Articles on the responsibility of international organizations (DARIO) the international organisation cannot ignore other international obligations that the states have all subscribed. Therefore, it is possible to derive a sort of joint responsibility of the ESM and the member states by saying that the mechanism has general obligation to respect fundamental rights and that such obligation is founded on the member states obligations. The same goes for the IMF. Moreover, what strikes in all this emergency governance is that every actor seems to have forgotten the obligation toward the principle of non-retrogression deriving from the signature of the ICESCR (Article 2). Do we have to consider it as an absolute principle or as a principle that can be curtailed in times of emergency? Moreover, in this second case, how does the present day economic emergency distinguish itself from traditional emergency? Do we have a different degree of retrogression? Furthermore, how long does the retrogression last in the two emergencies? Any measure carrying suspensions or infringements of rights will lead to a certain degree of retrogression. The core point is how to interpret retrogression: as an instrument preventing any flexible intervention to respond to the economic crisis or as a guiding principle combining anti-crisis measures and protection of rights? However, the key difference between the two emergencies is that crisis-related measures have a wider range of effects than possible suspension or infringement 5 Case

370/12 Thomas Pringle v Government of Ireland, Ireland and The Attorney General [2012] ECR 2012-00000.

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of rights following a traditional emergency. We have short-term, medium-term and long-term effects and besides, it is not always possible to assess the effect in the longterm. Therefore, the guiding principle should be the one of proportionality as the sole viable way to counterbalance retrogressive measures. In all cases of emergency long-term effects have to be expected; however, they differ in nature, since in natural disaster or war, the effects aim at preventing further damages, whereas in economic crisis the aim is at making up for previous damages. As the CESCR has pointed out, whenever a government takes a retrogressive measure it has to prove: first that all possible alternatives have been examined but were not viable, and second, that the chosen anti-crisis measures are always the less restrictive of rights. Therefore, what emerges, is not a total ban of non-retrogression, rather, a proper application of this principle, combined with the principle of proportionality and the primacy of rights. However, if in theory the issue of non-retrogression seems sound, it is defective on the side of the enforcement. If we look at the crisis-related measures implemented in the member states subject to the strict conditionality, it cannot be denied that austerity measures had a retrogressive and in the most cases—Greece—disproportionate impact on social and economic rights. Besides, the real impact of austerity is yet to be properly evaluated in the long run, in both perspectives, positive and negative. Austerity has deepen inequality not just within the Eurozone, but also between regions (as in Spain), thus creating serious discrepancies in the enjoyment of social and economic rights, which is not equal anymore (Garcia Pedrazza 2014). Moreover, the negative effects of austerity measures in terms of rights infringements have boosted the importance of accountability, transparency and non-discrimination. austerity measures are a sort of breach of the relationship that there should be between representation and accountability, as a key democratic value. Therefore, the question that should be asked is not on the effectiveness of austerity, rather, whether austerity was the sole possible option or whether it was a deliberate ideological choice. Up to now, austerity has been presented as a necessity and it has been prioritized over other choices and alternatives. Others that could increase the amount of available resources were proposed, and there are serious doubts that there is a reasonable justification for the implementation of austerity measures. If this is the case, austerity seems to be a deliberate ideological choice that is strengthening neoliberal economy and weakening the welfare state. If we accept this interpretation, the fact that austerity measures have been adopted without the involvement of the affected groups and that no human rights-based approach to the economic reform has been implemented so far becomes even more critical. Serious assessments of the effects of austerity programmes on social and economic rights in the long-term have not been carried out, it is still impossible to have a clear idea on the viability of the re-establishment of the level of protection of such rights before austerity, and on how long would it take.

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3.4 The Role of Courts The last point is related to how constitutionalism can react to the concerns raised by the crisis-related measures—by both the adoption procedures and the content. Namely, whether in the narrow freedom of action that is left to member states—and in particular to those entered in the MoUs—it is possible to identify instruments or bodies that can uphold the principles of accountability, proportionality, transparency, non-discrimination and supremacy of rights. Governments have opted for a sort of extra ordinem constitutionalism, shielding behind the EU obligations in order to enforce austerity measures or have completely or partly abdicated their sovereignty to the troika (the Greek argument mentioned above), while parliaments have been progressively stripped of their traditional power of decision in fiscal and budgetary matters and at the same time cannot even concretely exercise their monitoring power on the executive. The most viable reaction of constitutionalism seems to be the one centred on constitutional courts performing their traditional role of guardians of the constitution. Besides, another way, by far less effective, could be to strengthen the involvement of national parliaments through the right to be informed, as stated by the BVerG in the series of decisions delivered on the core crisis-related measures adopted at the European level since 2011.6 I shall firstly examine the role that can be played by courts. Their distinguishing feature of being non-majoritarian institutions of constitutional democracies and their composition and selection procedure are in favour of their character of non-partisanship. Moreover, they enjoy a great authority, which is built upon a sort of Weberian legitimacy (Everson and Joerges 2013). On this basis, constitutional courts at a national level and the CJEU at EU level can play a key role. However, this solution is not free of concerns at both levels. The first striking one is related to the CJEU and to the fact that has overruled national law in countless cases, but has hardly ever found European legal acts to be at fault. Moreover, the CJEU is known for not being a rights court as constitutional courts within member states are. Therefore, the CJEU would certainly be an unsatisfying guardian. Moving to the national level, the most relevant concern is connected to the separation of powers and thus to the extent of their intervention in order to uphold the principles of proportionality, accountability, transparency and rights protection. The new European economic governance has been transposed into national law by the Eurozone member states and the same goes for the compulsory reforms introduced by the states receiving the financial assistance by the troika. Regardless of the debated freedom of action of governments and parliaments in this stage, what matters now is that they were implementing international obligations resulting from 6 Griechenland-Hilfe

Urteil, BVerfG, 2 BvR 987/10, 7 September 2011 (Verfassungsbeschwerde); Sondergremium Urteil, BVerfG, 2 BvR 8/11, 28 February 2012 (Organstreitverfahren); BVerfG, 2 BvR 4/11, 19 June 2012 (Organstreitverfahren); BVerfG, 2 BvR 1390/12, 12 September 2012 (Verfassungsbeschwerde e Organstreitverfahren).

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political decisions of utmost importance. The political sphere relays on the competence of the executive power, not of a constitutional court. However, at the same time, a constitutional court may be given the power to review international treaties, but surely has the power to review primary sources implementing them. Therefore, is it concretely viable for a constitutional court to be an effective guardian of the constitution when facing such fundamental political decisions and when a declaration of unconstitutionality may led the state not to comply with international obligations? The answer here depends on the stance of the single constitutional court. I have previously mentioned the active stance of the Portuguese court that has quashed budget law provisions implementing international obligations contracted by the Portuguese government. Can this be interpreted as a violation of the separation of powers and as an overstepping of the court, going far beyond its scope? Nevertheless, whenever a constitutional court protects the core principles of a given legal system can be really said to perform something beyond its reach? A constitutional court should deliver balanced decisions, combining the protection of fundamental principles with the respect of the separation of powers. The BVerfG in the series of decisions delivered on the core crisis-related measures adopted at the European level since 2011 has been able to reach a quite a fair balance (Bertolini 2013a). The court has upheld the budgetary power of the Bundestag since it is a democratic essential, protected by the Ewigkeitklause (eternity clause) of the Grundgesetz (GG) without undermining the new economic architecture that was still a work in progress in that moment. Moreover, the BVerfG was well aware of the need to respect the separation of powers and that the Bundestag enjoys quite a wide power that the judiciary must respect. The main aim of the BVerfG is then to reshape this power of the Bundestag by restoring, as far as it is possible, his traditional central role in financial and budgetary matters. In order to do so, the BVerfG gives the Bundestag rights to be exercised in a proceduralising mode: it must be adequately informed, enabled to deliberate, and prevented from delegating its evaluation (socalled Informationsrechte). This is perfectly in line with the Lisabon Urteil 7 and his principle of integration responsibility. The most relevant outcome is that the BVerfG proves that the fundamental principles of the German legal system have to be protected by the constitutional court, but that very same protection cannot overcome the boundaries deriving from the separation of powers. The court is not an all-powerful guardian; on the contrary, it needs to practise self-restraint. Moreover, when the competence of the court has to stop, it will be relieved by another guardian, the parliament. Therefore, no single guardian but two. However, for parliament to be an effective guardian, he has to be given more monitoring powers in order to still be somehow responsible in budgetary matters. The construct of the BVerfG is not free of criticism, since it is centred on the German economic philosophy—the EMU as a stability community (Stabilitätsgemeinschaft) (Saitto 2012)—that tends to privilege the democratic rights of German citizens. Moreover, the court’s reasoning boosts the links between economic stability 7 BVerfG,

2 BvE 2/08, 30 June 2009.

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and social austerity, regardless to the concerns raised by austerity in the countries subject to the strict conditionality. The more viable conclusion seems to be that no single guardian is possible and suitable, since none of the proposed solutions is completely free of constitutional concerns. A combination between a balanced review power of constitutional courts and a responsible involvement of parliaments in the decision-making phase at the European level has to be preferred. Besides, another possible solution seems to be the one to entrust the role of guardian of the constitution to the constitution itself. This option can be performed following two different paths. The first may be to entrench in the constitution further limits to the constitutional amendment procedure, in order to narrow the possibility that undue, external pressure in a moment of crisis or emergency leads to entrench provisions that can actually put implicitly under jeopardy some core principles of the state. The second may be to narrow the possible negative fallout of economic emergency-related measures by inserting in the constitution either an emergency section including the economic one or, whenever such section is already provided for, listing the economic one as a further possible case. In doing so, it will be the constitution itself to frame the freedom of action of the government within precise constitutional boundaries. Such a solution, however, should be evaluate on an opportunity base, namely whether it should be recommended to insert to much detailed provisions in the constitution. Moreover, even though such limits are introduced, their concrete operation may still be questionable, because governments can decide not to invoke the economic emergency section and therefore, handle the situation outside this precise constitutional framework, as recently happened.

4 Conclusion The chapter has outlined the most relevant concerns raised by the complex architecture of intertwined crisis-related measures issued by the combined action of international and European institutions and national governments in order to determine whether it is possible to draw some parallelism between the handling of the economic crisis and a more traditional emergency situation. The seriousness of the crisis and the risk of contagion across the whole EU have revealed the lacunae of the Maastricht economic governance, the differences in economic philosophy between the member states as well as the weaknesses of the countries that had requested the financial assistance of the troika. Indeed, what has emerged from the crisis is actually a misalignment from several standpoints: first, the euro is the common currency but government debt is national; second, the European system is neither federal nor national; third, international institutions, such as the IMF, that have flanked the EU, are empowered to make many decisions that impact on well-being but are not systematically accountable towards

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the people that actually are affected by these decisions. All the key players were unprepared. The extraordinary character of the crisis is enough to qualify the economic crisis as an emergency situation, analogous to the ones usually envisaged by constitutions? The answer should be no. The economic crisis has therefore to be considered as a new genus of emergency that has put the constitutional order under considerable strain. It is due to such a strain that the present situation ca be considered as new genus of constitutional emergency. To get to such a qualification, is not relevant whether a constitution already provides for an emergency section or lists among the possible emergencies the economic one. On the contrary, it is the verification that a deep economic crisis may lead to constitutional infringements that urges further guarantees. The fact that none of the countries seriously affected by the crisis invoked the emergency is not a relevant point in favour of my conclusion from a legal standpoint. The resort to new countermeasures, in particular at European level, since the ones provided for by the Treaties were considered unsuited, has been carried out mainly outside the EU legal order, where accountability and transparency are scarce, and even when the path has been within the EU legal order—a Treaty amendment—the procedure had all the same generated concerns on its legitimacy. Moreover, the key elements of traditional emergencies are mainly two: a temporary prominent role of the executive power over the legislative and measures that temporary infringe or suspend rights and freedoms. Therefore, temporariness is the core word, since the emergency character of the situation requires a deviation from the constitutional legal order; moreover, since the ultimate aim is the restoration of the constitutional legal order, the deviation cannot be temporary. It is the requirement of temporariness that is completely lacking in this crisis management both on the side of the prominence of governments over parliaments and on the side of rights protection. The shift in the balance of powers between the two most relevant constitutional bodies and the retrogression with respect to social and economic rights have not properly been assessed in advance and it is not possible to foresee a restoration of the status ante in the short-term. Another peculiarity resulting from this economic emergency is related to the role played by the executive power. Besides its prominence—as in traditional emergency situations—and the dubious restoration of a more balanced relationship with parliament within a short time, what strikes is that actually, in particular in the member states benefitting of the financial assistance, governments freedom of action is very narrow. While they seem all-powerful in the inner front, they are far less powerful when contracting financial support at EU and international level. Therefore, the shift of power in financial and budgetary matters is not just from national parliaments to national governments, but from national governments to international or European institutions. This is anything but temporary. The violation of the democratic principle, of the principles of proportionality, accountability, transparency, non-discrimination and of the protection of rights is far more serious since mechanisms for accountability towards international and EU institutions are scarce and ineffective.

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A partial restoration of the traditional central role of parliaments through the right to be informed and to monitor is surely a starting point, something that may be viable in any situation, regardless of emergency situation. Besides, relay just on constitutional courts as guardian of the constitutions is not enough, since this solution seems to neglect the boundaries deriving from the separation of powers that courts are compelled to comply with. The margin of discretion of governments and parliaments in making political decisions cannot, or should not, be reviewed by the courts. Therefore, the traditional emergency pattern cannot be applied to the present day economic crisis. Surely, this is an emergency but the traditional model does not fit. Since different concerns arise, different constitutional solutions have to be provided for. A new constitutional design—within the EU as well as within the member states—has to be drafted in order to adequately meet the challenges of a globalised economy, mainly based on investments and finance. This new constitutional design should be carried out either through the entrenchment of new provisions—better introducing monitoring and accountability mechanisms and a more suitable system of enforcement of an adequate standard of protection of social and economic rights rather than an ad hoc economic emergency section—or constitutional interpretation.

References Bertolini E (2013a) La nuova dimensione della sovranità dei Parlamenti nazionali in materia finanziaria e di bilancio. DPCE 135–168 Bertolini E (2013b) ‘Il futuro della governance finanziaria europea alla luce della sentenza Pringle. Rivista giuridica del lavoro e della previdenza sociale 2:179–195 Blanchard O, Romer D, Spence M, Stiglitz J (2012) In the wake of the crisis. MIT Press, Cambridge (MA) Calliess C (2011) Perspektiven des Euro Zwischen Solidarität und Recht – Eine Rechtliche Analyse der Griechenlandhilfe und des Rettungsschirms. ZEuS 14:213–282 Coelho G, Caro De Sousa P (2013) La morte dei mille tagli. Nota sulla decisione della Corte costituzionale portoghese in merito alla legittimità del bilancio annuale. Giornale di diritto del lavoro e di relazioni industriali 35(139): 527–546 Crum B (2013) Saving the Euro at the cost of democracy? J Common Mark Stud 51(4):614–630 De Grauwe P (2013) Design Failures in the Eurozone: Can they be fixed? LEQS discussion paper 57/2013. www.lse.ac.uk/europeanInstitute/LEQS%20Discussion%20Paper%20Series/LEQSPa per57.pdf. Accessed 6 Mar 2016 Everson M, Joerges C (2013) Who is the guardian for constitutionalism in Europe after financial crisis? LWQS paper no 63/2013. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2287111. Accessed 5 Mar 2016 Garcia Pedrazza P (2014) Crisis and social rights in Europe. Retrogressive measures versus protection mechanisms. Institute for Human Rights, Åbo Akademi University. https://www.abo.fi/wp-content/uploads/2018/03/2014-Garcia-Pedraza-Crisis-and-social-rig hts-in-Europe.pdf. Accessed 5 Jun 2019 German Law Journal (2014) Special Issue–The OMT Decision of the German Federal Constitutional Court 15(2): 107–382 Giupponi T (2014) ‘Il principio costituzionale dell’equilibrio di bilancio e la sua attuazione’ Quaderni costituzionali 51–77

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Groppi T (2012) The Impact of the Financial Crisis on the Italian written constitution. Ital J Public Law 2(1):1–14 Iannella M (2016) Condizionalità e diritti sociali: spunti dal caso portoghese. Diritto e Società 107–140 Luciani M (2013a) Costituzione, bilancio, diritti e doveri dei cittadini. Astrid rassegna 3. www.ast rid-online.it. Accessed 12 Mar 2016 Luciani M (2013b) L’equilibrio di bilancio e i principi fondamentali: la prospettiva del controllo di costituzionalità. www.cortecostituzionale.it/documenti/convegni_seminari/Seminario2013_L uciani.pdf. Accessed 5 Jun 2019 Morrone A (2014) Crisi economica e diritti. Appunti per lo stato costituzionale in Europa’ Quaderni costituzionali 79–108 Nogueira de Brito M (2014) Putting social rights in brackets? The portuguese experience with welfare challenges in times of crisis. In Kilpatrick C, De Witte B (eds) Social rights in times of crisis in the Eurozone: The role of fundamental rights’ challenges (EU working paper 2014/05), pp 68–72 Oberndorfer L (2015) From new constitutionalism to authoritarian constitutionalism: new economic governance and the state of European democracy. In: Jäger J, Springler E (eds) Asymmetric crisis in Europe and possible futures. Routledge, London, pp 186–207 Pye R, Parker O (2016) The unfulfilled promise of social rights in Crisis EU SPERI paper no 26. http://speri.dept.shef.ac.uk/wp-content/uploads/2016/01/SPERI-Paper-No.26-The-Unfulf illed-Promise-of-Social-Rights-in-Crisis-EU.pdf. Accessed 5 Mar 2016 Romeo G (2013) La garanzia dei diritti sociali tra “autosufficienza nazionale” e tutela sovranazionale. Percorsi costituzionali 387–418 Roznai Y (2017) Unconstitutional constitutional amendments. Oxford University Press, Oxford Saitto F (2012) Stabilitätgemeinschaft, prerogative parlamentari e politiche di bilancio: Karlsruhe precisa i poteri e le responsabilità del Bundestag mentre parla all’Europa. Diritti comparati. http://www.diritticomparati.it/stabilitatgemeinschaft-prerogative-parlamentari-e-pol itiche-di-bilancio-karlsruhe-precisa-i-poteri-e/. Accessed 5 Jun 2019 Streeck W (2014) Buying time: the delayed crisis of democratic capitalism. Verso, New York Tuori K (2012) The European financial crisis—constitutional aspects and implications EUI working papers LAW 2012/28. http://cadmus.eui.eu/handle/1814/24301. Accessed 5 Mar 2016 Vasconcelos Ferreira L (2005) Social protection and chronic poverty: Portugal and the Southern Welfare Regime FEP working papers, n 168 18. www.fep.up.pt/investigacao/workingpapers/05. 03.04_WP168_leonor.pdf. Accessed 8 Mar 2016

Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International Pedro A. Villarreal

Abstract The current chapter deals with public health emergencies and their linkages to constitutional law and theory. The ongoing COVID-19 pandemic poses myriad challenges to constitutional regimes around the world. However, it is by no means the first time that public health emergencies have led to questions of constitutionalism. Past instances of disease outbreaks had already highlighted how emergency legal frameworks unfold when facing the challenge of containing their spread. Against this backdrop, the chapter focuses on pre-COVID-19 instances of cross-border epidemics and pandemics, such as A(H1N1) Influenza, Ebola and Zika, and some of their implications for constitutionalism. These examples of infectious disease outbreaks are assessed by resorting to three models-archetypes of constitutional emergencies as a theoretical background. As they show a coupling between the international and national levels, a brief glimpse at applicable international law regimes is put forward. Ultimately, public health emergencies are not taken as a new genus within already existing classifications. Nevertheless, this contribution shows how they do warrant more detailed analysis, given how their technical features put theories related to constitutionalism under extreme conditions to the test. The contribution was initially drafted before the onset of the COVID-19 pandemic in 2020. Thus, it is a mostly retrospective analysis. Nevertheless, insights taken from outbreaks preceding COVID-19 can help build a broader outlook of the puzzle related to how the intertwinement between constitutionalism and public health emergencies can be addressed through a broader perspective not limited to one disease.

1 Introduction This chapter deals with pre-COVID-19 public health emergencies and how they were embedded in broader debates on constitutionalism under extreme conditions. The aim is to show some of the linkages between the two dimensions, and how they P. A. Villarreal (B) Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany e-mail: [email protected] © The Author(s) 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_14

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give way to multiple theoretical and factual challenges for existing legal frameworks. In order to provide a general conceptual frame, three archetypes-models related to emergencies and constitutionalism are put forward. Emergencies in a constitutional sense refer to events that require extraordinary responses. At times, those events may threaten the very existence of a state. But this is not always the case. In line with this diversity, there is no one single model towards constitutional emergencies, and the terms ‘emergency’, ‘national emergency’, ‘state of emergency’ or ‘state of exception’ often overlap. In terms of common components, emergencies can entail a reallocation of powers, on one hand, and the possibility to suspend or derogate human rights if and when necessary, on the other. The constitutional dimension of emergencies is a primarily national matter. At the same time, there is an existing international framework on the particular subject of cross-border epidemics. Legal instruments such as the International Health Regulations (IHR) of 2005, as well as multiple human rights conventions, are included in this contribution in so far as they provide guidance for, and can also shape states’ responses to emergencies. The interplay between national law and international law can provide insights on how sensitive issues related to sovereign decision-making, such as the declaration of an emergency, do not always have an exclusively national dimension. To the contrary, as highlighted by the COVID-19 debacle, they may acquire a global dimension. The first section deals with particular points related to the general constitutional dimension of emergencies. The extraordinary allocation of powers is analytically separated from clauses dealing with human rights restrictions or derogation thereof. This distinction becomes somewhat blurry in actual contexts of emergencies, given that they can go hand-in-hand. Yet initial clarifications can contribute to setting a tone for the ensuing debate. The second section is devoted to an analysis of the idea of public health emergencies from a mostly legal perspective, which considers it to be part of a factual subset within the different types of emergency. The links between the national-constitutional and international level is briefly sketched out. Both of them are intertwined in so far as there are overlapping legal mechanisms regarding public health emergencies. Even though this paper does not argue for framing public health emergencies as a “new genus” that departs from traditional constitutional patterns,1 there are nevertheless unique features requiring a closer look. The third section presents an overview of the interplay between public health emergencies and diverging constitutional systems. As a caveat, this piece does not engage in a thorough comparative law exercise, since this would require a lengthier endeavor. That being said, three of the most visible pre-COVID-19 cases of crossborder epidemics are addressed, namely: the 2009–2010 H1N1 influenza pandemic, the 2014–2016 West African Ebola epidemic, and the 2016 Zika outbreak. The

1 For

arguments on how economic – namely financial – emergencies could be framed as a “new genus”, see in this volume Elisa Bertolini, Financial Crisis as a New Genus of Constitutional Emergency?

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selection of these cases allows for highlighting when and how extraordinary powers were allocated, and the exercise of individual human rights was restricted. The final section draws some general conclusions regarding the link between public health emergencies and constitutionalism. Past responses to specific emergencies may fit within one or more of the archetypes-models sketched out at the outset. Therefore, a brief account of recent events related to disease outbreaks can shed light on how public health emergencies can challenge pre-established legal frameworks in multiple ways.

2 A Theoretical Outlook of Constitutionalism and Emergencies There is no univocal understanding of the term “emergency”. As noted by Kim Lane Scheppele, emergencies in the legal sense usually involve resorting to extraordinary measures to confront a particular and (in theory) temporary problem, which may not be solved through a reform of the existing constitutional framework.2 Needless to say, emergencies are not an everyday issue.3 Otherwise, they would become normalcy.4 For the purposes of this contribution, the idea of “normalcy” alludes to periods where the everyday functioning of institutions5 is deemed sufficient for solving pressing problems.6 But even in this very basic construction, there is a degree of vagueness. Not every emergency represents the same type of “imminent peril” or “clear and present danger”. Therefore, “emergencies” is a broader term than those of “state of emergency” or “state of exception”,7 which evokes a situation in which the very existence of a state is at stake.8 2 Scheppele

(2006):835–836. see the warnings by Ackerman (2004):1042. 4 However, see the poignant arguments on the (ab)use of this legal figure in the U.S. by Scheppele (2006):835. On the normative duality between normalcy and exception, see in this volume Ming Sung Kuo, From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization. Similarly, in terms of the global presence of the ‘security state’, Frankenberg (2014):26–29 and 189. 5 The role of the judicial branch might qualify as dealing with everyday legal problems. Accordingly, if a problem can be solved standard judicial procedures, it would be difficult to consider it an emergency. See Rossiter (1948):9. 6 See the landmark ruling by the Supreme Court of the United States in Youngstown Sheet & Tube Co. v. Sawyer (1952), 343 U.S. 579, 589. Here, the majority opinion alludes to the existence of ‘good’ and ‘bad’ times. 7 Debates surrounding this term are copious. For example, the now-classical discussion regarding the path provided by the 1919 Weimar Constitution’s emergency framework towards the rise of the National Socialist regime. See Carl Schmitt’s idea of sovereignty in Schmitt (1922). See also Agamben (2012):9–37. 8 It should be kept in mind that terms which denote a “state of emergency” can diverge not just across languages (estado de emergencia, état de siège, Notstand). Within the English language, it 3 But

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The contrast between emergency and normalcy is not just linguistical. Several legal definitions emphasize the extraordinary nature of emergencies, which also seems to be linked to an idea of temporary duration. In fact, the argument of its transitory nature might also be employed to make the idea of emergencies “easier to digest” for the public at large.9 There is no mathematically precise threshold between what is normal and what is an emergency. Due to their own unpredictability, emergencies will test anything remotely close to a fixed definition.10 Dealing with any proposal would require an overarching philosophical, anthropological and sociological discussion that falls beyond the limits of these lines. Suffice it to say that the formal distinction between emergency and normalcy, as is the case with countless legal terms, is highly malleable and, ultimately, artificial.11

2.1 Three Models-Archetypes for Constitutional Emergencies Three main models–archetypes of emergency powers will be retaken in this contribution.12 They are, in basic terms, the following: 1. The rule of law, or “business as usual” model-archetype, according to which responses to emergencies can be framed within the existing, ordinary legal framework.13 Here, no extraordinary measures in the strongest sense of the term are adopted, since they are provided for in a predetermined framework also available during times of normalcy. In this model-archetype, the label “emergency” is more of a discursive or communicative tool, as it does not lead to an upheaval of existing legal structures. 2. The constitutional dictatorship model-archetype, in which emergencies lead to exceptional and temporary regimes wherein ordinary norms no longer apply. Emergency measures also take place within a predetermined normative space, albeit one of a temporary nature and which is not available in periods of normalcy. Moreover, there are substantive and procedural requirements in place, since they are seen as reducing the likeliness of abuse.14 can also be referred to as “martial law” and this, in turn, is also subject to more than one meaning. For example, Dicey (1948):287–294. 9 Gross (2003):1036. 10 Loevy (2016):57–59. 11 Gross and Ni Aoláin (2006):322–324. 12 Ibid., 17 et seq; see also in this volume Ming-Sung Kuo, From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization. For a different categorization of the same issue, see Loevy (2016):24. 13 If taken as a general rule, this can be understood as a negation of the need for states of emergencies. Under this model, rule of law prevails no matter the circumstances. This idea is retaken from a more detailed formulation by Frankenberg (2014):25. 14 Speaking of theories centered on the constitution, as opposed to those centered on the state, see Jakab (2005):471–473.

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3. The extralegal model-archetype, in which responses to emergencies are to be found outside of established norms, perhaps best illustrated by the adage “necessity knows no law”.15 Accordingly, emergencies are mostly or completely unregulated in light of the impossibility by lawmakers to foresee all possible extraordinary scenarios.16 It should be noted that the three models-archetypes mentioned above are not always apt at accurately describing the constitutional regimes in specific legal systems.17 Thus, they should not be applied in an either/or fashion to label every particular instance. In some cases, emergencies may lead to a combination of elements from more than one of the models-archetypes. Whether man-made or not, extraordinary events such as war, terrorist attacks, economic meltdowns, natural disasters, epidemics or pandemics can surpass the inherent capabilities of institutions to deal with them through ordinary procedures. If an emergency, no matter how severe, can be handled through the regular balance between the administrative, legislative and judicial branches, there is theoretically no need for granting extraordinary powers.18 Yet even in countries that claim to function within democratic constitutional boundaries, there are constant disagreements between branches of government over who has the power to do x or y. The question of whether declaring emergencies may alter the allocation of powers, such as an expansion of executive authority, comes to the fore.19 Moreover, emergencies may also lead to implementing restrictions, derogations or suspensions of human rights. In addition, the models-archetypes described above leave out the question of how to assess whether branding a fact or set of facts as an emergency is justified or not. The process of fact-checking if a situation is severe enough to surpass the capacity of “normal” political decision-making procedures may be more or less contested.20 In these cases, it is argued by some that the executive has the best tools both for assessing the seriousness and extraordinary nature of the facts, and for facing the

15 See in this volume the explanation in Antonia Baraggia, The ‘judicialization’ of emergency: The case of the Eurozone Crisis. 16 For arguments in favor of this model in the case of the United States, see Posner (2006):153–157. 17 This argument is taken from Loevy (2016):41–42. 18 This would be different from the rule-of-law model of emergencies, where conditions are always foreseen within a positive legal framework. See Gross (2003):1043–1044. A.V. Dicey also held that this is mostly the case for the British legal system, since, unlike the French legal system of the Third Republic, there was no such thing as the "state of siege" (état de siège). See Dicey (1948). 19 Fix-Zamudio (2004):807; also Harlow (2006):190. Others are opposed to seeing the executive as the branch in charge of emergencies par excellence. See Loevy (2016):60 and 314. According to other authors, the extreme version of an allocation of powers in the executive is the French Constitution, which on Article 16 grants the President the power to declare an emergency by her/himself, without the possibility of a judicial scrutiny of the decision. See Voisset (1969):27–39. In the same vein, Ackerman (2004):1038. 20 Tracing the historical description of this institution back to Machiavelli’s depiction of the Roman idea of Dictatorship, see Schmitt (1928); Gross and Ni Aoláin (2006):35–36; Frankenberg (2014):11–12.

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ensuing challenges, particularly as it is the best-positioned branch for acquiring and processing complex information.21 Conversely, traumatizing historical events illustrate how declarations of (constitutional) emergencies without justified grounds can, and have been abused.22 In attempting to stymie this possibility, some constitutions introduce either ex ante or ex post failsafe mechanisms to the arrogation of powers, consisting of a previous or posterior requirement of validation by the legislative power, or even by courts.23 As a safeguard against potential power-grabbing motives, the involvement of more than one public authority in determining that a situation is an emergency for constitutional purposes aims at a more robust confirmation that the situation at hand justifies granting extraordinary powers.24 This approach may still disregard the relevance of unchecked informal power, which can easily turn into authoritarianism, while still conforming to all ex ante or ex post technical requirements.25 Be that as it may, the focus in the current contribution will be on formal powers, i.e. those deriving from law. This does not purport to ignore how strictly non-legal (i.e. social, political, among others) counterweights are also a force to be reckoned with, sometimes more so than legal ones.

2.2 Emergencies and Human Rights: A Fragile Relationship The development of mechanisms for responding to emergencies arguably represents one of the core exercises of sovereignty in its internal dimension.26 There is no entity above the state with the capacity to supersede national decision-making altogether for when to declare an emergency, and how to deal with it. However, there are instances in which emergency decision-making by national authorities overlap with specialized regimes of international law. The most salient case is that of human rights treaties, which include provisions for instances of derogation. During emergencies, human rights are susceptible of being suspended or derogated. The flexibility and dynamism of the human-rights-derogation regime is also due to the unforeseeable nature of emergencies, given that no ex ante casuistic model could possibly exhaust all future occurrences.27 The dire and urgent nature of risks 21 On

this point, Sunstein (2016):1611; also, Posner (2006):36. instance, see the accounts of Rossiter (1948):71–73 and 280–287; Ferejohn and Pasquale (2004): 216; Jakab (2005):455 and 465; for the Latin American context, see Fix-Zamudio (2004):806; as well as Fitzpatrick (1998):393. 23 Tushnet (2007):281–282. 24 Again, it is highly contested whether this can ever be clear-cut, as it is also argued in ibid. 275. 25 Lazar (2008):166. 26 The idea of “deciding upon the exception” stands at the center of Carl Schmitt’s controversial theory of sovereignty. See the lapidary beginning in Schmitt (1932):1; see also in this volume Yaniv Roznai and Richard Albert, The Depth and Diversity of Modern Pressures on Constitutionalism. 27 Some authors warn against the attempts to devise exhaustive lists of possible situations constituting emergencies. Notably, Böckenförde (2017):111–115. See also Criddle (2014):197 and 211. 22 For

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posed by terrorism, economic meltdown or natural disaster, and the ensuing extraordinary powers needed to respond to them, eventually hinge upon obligations of governmental authorities towards their people.28 Recognizing this link at the international level, the International Covenant on Civil and Political Rights (ICCPR)29 and the regional European and American human rights instruments30 contain clauses dealing with the possibility to derogate or suspend certain rights in times of emergency. The implications of derogations are further developed by the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, which expressly includes public health as justifiable grounds for restricting human rights.31 There is leeway for states to decide how to implement restrictive measures. But the possibility of derogating or suspending does not entail that the balancing of necessity and respect for human rights lies exclusively within executive discretion.32 Criticisms of the excessive focus on military emergencies have also underscored how the linkages between human rights and non-military emergencies should be addressed.33 As noted above, the ICCPR explicitly allows for the restriction, suspension or derogation of certain individual human rights for reasons of, inter alia, public health, as long as a minimum set of criteria is met.34 For the purposes of this contribution, public health is seen as providing a justification for overriding individual liberties such as the right to peaceful assembly, or freedom of movement,35 both enshrined in the ICCPR.

28 See

in this volume Aharon Barak, Human Rights in Times of Terror – A Judicial Point of View. Article 4. 30 Article 27 of the American Convention on Human Rights; Article 15 of the European Convention on Human Rights. Although it is not have a general derogation or suspension clause, Articles 11 and 12(2) of the African Charter on Human and Peoples’ Rights foresee the possibility to restrict freedom of movement and freedom of assembly under grounds, inter alia, of “national security”. 31 United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985), at I.B.iv. 32 Gross (2003):1058 et seq. 33 Roach (2008):233; the emphasis on the military dimension is also present in the history of the drafting of Article 4 ICCPR, since there were (unsuccessful) proposals to limit the justification of derogations to instances of “war” as the only valid justification for derogations. Office of the High Commissioner for Human Rights (2003):816–821. 34 Fidler (1999):172–173. 35 Gostin (2014):253–256. 29 Namely,

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3 Public Health Emergencies and Law: Coupling the International and the National Perhaps due to historical experiences,36 scholarly debates have been mostly focused on the military aspects of emergencies, and at times to disaster relief.37 Conversely, some authors hold that other types of emergencies, like those of the economic kind,38 have not received the same degree of attention. This logic is also applicable to public health emergencies. David Fidler has noted how, in the particular case of public health emergencies caused by infectious diseases, many of the distinctions between the international and the national levels gradually lose relevance and might be rendered anachronistic.39 Still, major contrasts between national or domestic and international law ought not to be ignored, given that overarching legal approaches have been criticized for not being sufficiently nuanced.40 Whilst keeping this in mind, the following lines will include both national and international understandings of public health emergencies. In this vein, the cross-border spread of diseases poses unique challenges, as it may lead to the simultaneous declaration of emergencies across multiple legal systems. Yet, as seen below, this does not necessarily lead to uniformity. To the contrary, different states have adopted distinct measures when dealing with disease outbreaks. This divergence may be due to the varying severity of the event, as the spread of a disease may be more acute in one country than in others. Alternatively, it may be due to differences in the corresponding legal frameworks. The criteria for assessing if and when emergencies are justified or not are grounded on social constructions built within cognitive boundaries.41 Facts are the starting point for determining whether an emergency is justified or legitimate.42 Grasping and interpreting a fact or group of facts as warranting the declaration an emergency is an exercise of discretion. The underlying challenge for defining whether this is justified consists of gauging the seriousness of a health-related event. Since factual matters of public health emergencies may be hard to grasp in light of the technical expertise required (i.e. specialized input by persons with training in the fields of medicine, epidemiology or public health), a brief account may provide insights on the challenges this can pose to model-archetypes of constitutional emergencies. Public health emergencies can entail both emergency declarations in a broader sense and, in more severe cases, a state of emergency or state of exception, where the stability of an entire nation is at stake. In light of the above, recent events related 36 For an account of the historical context in the Inter-American Human Rights System, see Fitzpatrick (1998):376–377. 37 At times, disease outbreaks fall under the classification of ‘natural disasters’. 38 For a criticism on what is deemed an ‘under-inclusive’ understanding of emergencies, see Roach (2008):229; along similar lines, Desierto (2012):150 et seq. 39 Fidler (1996):77–78. 40 Bogdandy et al. (2010):14. 41 Paraphrasing Gross (2003):1038–1039. 42 Retaking the terminology of García-Sayán (1988):21.

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to infectious disease outbreaks will be briefly described in order to highlight the lack of a unified criterion capable of framing their possible legal consequences. This is not meant to convey that public health emergencies can only be related to the spread of an infectious disease. Sometimes, the use of the term has been recently extended in order to include issues such as an obesity epidemic in Mexico,43 or an opioid addiction crisis in the United States of America.44 However, the examples quoted onwards will be limited to cross-border disease outbreaks, an issue where the World Health Organization (WHO) plays a guiding role at the international level. Such a choice also allows for depicting how the same epidemiological event may have diverging legal responses across different jurisdictions.

4 Constitutional Implications of Public Health Emergencies Before COVID-19 The selection of examples in this contribution is limited to those falling under the definition of a public health emergency of international concern as formulated in Article 1 of the WHO’s International Health Regulations (2005). The advantage of this international definition is that it is applicable to all of the WHO’s Member States, currently 194.45 As explained in subsequent sections, this international formulation does not mean there is always equivalence across national legal systems. Furthermore, public health emergencies of international concern have a direct link to national emergencies. The link was manifest during the 2014–2016 WestAfrican Ebola epidemic, wherein one of the technical recommendations for heads of government of the affected countries was to “declare a national emergency”.46 There were no specifications on which type of emergency should be declared for constitutional purposes, but the recommendation was nonetheless straightforward. Given how emergency decision-making can be seen by some as one of the core exercises of sovereignty,47 the sway of an international organization such as the WHO in the decision-making process, even if non-binding, is in itself a significant factor.48 43 Guthrie

and Fleck (2017):393. the Determination by the (Acting) Secretary of Health and Human Services of a public health emergency (26 October, 2017) at http://bit.ly/2GiSNVq; on the ensuing Opioid Emergency Response Act from 2018, see Hodge et al. (2018). 45 See the list at https://www.who.int/choice/demography/by_country/en/. 46 World Health Organization (2014). 47 Gross and Ni Aoláin (2006):267. 48 The Siracusa Principles directly refer to the WHO’s International Health Regulations for determining whether a public health event constitutes an emergency in the sense of the International Covenant on Civil and Political Rights. United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985), I.B.v. 44 See

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“Extraordinary medical”49 events falling within the category of public health emergencies show the features listed above for emergencies in general. The complexity of the facts at hand give way to the involvement of public health experts50 when assessing whether an event constitutes an emergency and which measures to adopt,51 leading to a technocratic style of legal decision-making.52 Additionally, several definitional and scientific shortcomings that underlie public health emergencies go beyond the fringes of a particular case. Therefore, it would be hasty to extract general assertions related to an ideal model of emergency powers. The role of expert input is also relevant for determining which measures are the most appropriate for dealing with a public health emergency. At times, they may restrict the exercise of human rights. It should be noted that such restrictive measures as mandatory isolations53 and quarantines,54 may also be available during ordinary periods. They are usually implemented by administrative bodies, be it the Ministry of Health or other sanitary authorities. Furthermore, implementing them during times of suspension or derogation of human rights may lead to lowering the procedural requirements for doing so. The following section provides a short overview of public health emergencies preceding the COVID-19 pandemic. The aim is to shed light upon how, even if the latter has been the most devastating, the links between severe disease outbreaks and constitutionalism were already ascertainable before. Moreover, the analysis will be limited to three relatively recent cases constituting public health emergencies of international concern. They are, namely: the H1N1 influenza pandemic, the 2014– 2016 Ebola crisis in West Africa, and the 2016 Zika emergency.55 As argued in the concluding remarks, focusing on these examples can provide further avenues for the intersections between emergencies and constitutionalism both in general, as well as regarding the COVID-19 pandemic.

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term used in Tushnet (2007):275. making any declaration of a public health emergency of international concern, WHO Director-General shall convene a meeting of experts (‘The Emergency Committee’) for the purposes of undertaking an assessment. See Articles 48 and 49 of the International Health Regulations (2005). 51 The very same statement can be made, mutatis mutandis, of economic emergencies. See Desierto (2012):158–159. 52 Venzke (2010):83–85. On the role of technocratic actors during economic crises, see in this volume Antonia Baraggia, Economic Crisis and Fundamental Rights Protection: The Case Law on Austerity Measures in Comparative Perspective. 53 Defined as ‘…separation of ill or contaminated persons or affected baggage, containers, conveyances, goods or postal parcels from others in such a manner as to prevent the spread of infection or contamination’, Article 1, International Health Regulations (2005). 54 Understood as ‘…the restriction of activities and/or separation from others of suspect persons who are not ill… in such a manner as to prevent the possible spread of infection or contamination’, Idem. 55 Due to a lack of primary and secondary sources available on the matter, the public health emergency of international concern declared on 5 May, 2014, related to the spread of poliovirus, will not be addressed. 50 Before

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4.1 The A(H1N1) Influenza Pandemic: Business as Usual The 2009–2010 Influenza pandemic56 gave way to questions of executive decisionmaking in both of the mainly affected countries: Mexico and the United States of America. The two countries declared a national emergency, yet the extent of the legal consequences of such declarations varied. This is due not just to the different wording of the corresponding provisions, but rather to diverging approaches towards constitutional law. Notable contrasts between both legal systems should be kept in mind, including the way in which the organization of political entities plays out in one country or the other.57 There were manifest differences with regards to the legal mechanisms activated for dealing with the A(H1N1) Influenza emergency. While both countries are federal states,58 their criteria regarding legal powers for pandemic response differ. For instance, outside of a few exceptions, Mexico follows a more stringent doctrine of “explicit and limited” powers (facultades expresas y limitadas).59 Conversely, in the United States, the Constitution and its corresponding Amendments’ comparative brevity led to the development of a more extensive case-law on the “implied powers” doctrine.60 On a similar note, in Mexico, the protection of health in general, and epidemics in particular fall within the purview of the federal government’s powers61 ; meanwhile, in the United States, states are primarily responsible for this field.62 In the United States of America, the Department of Health and Human Services declared a public health emergency on April 26, 2009.63 In light of the Public Health Service Act, the goal was to allow the federal government to assign extraordinary funds for mitigating the strain put on public health institutions.64 Later, on 24 October, 2009, the President of the United States of America declared an emergency based on Sections 101 and 201 of the National Emergencies Act.65 The declaration of emergency was renewed every 90 days, until its expiration on June 23, 2010. This 56 This article retakes the formal duration of the influenza pandemic by the WHO. World Health Organization (2011). 57 Tushnet (2007):footnote 14. 58 In fact, some have signaled the direct influence of the U.S. model on the first Constitution of Mexico as an independent nation. Tena Ramírez (1981). 59 In line with the settled interpretation of Articles 16 and 124 of the Political Constitution of the United Mexican States. On this, see Arteaga Nava (2000):41 and 43. However, there are very exceptional instances where the doctrine of implicit powers is adopted, albeit with a delegation process by the Mexican Congress under Article 73 (XXX). See Cárdenas Gracia (2002):20–26. 60 But see the limits delineated in Youngstown Sheet & Tube Co. v. Sawyer (1952), 343 U.S. 579, 589. 61 Brena Sesma (2010):547 et seq. 62 United States Department of Health and Human Services (2012), An HHS Retrospective on the 2009 H1N1 Influenza Pandemic to Advance All Hazards Preparedness:11. 63 Hodge and Weidenaar (2017): 83. 64 42 U.S.C. §247d. 65 50 U.S.C. §§1601 et seq. See the declaration at https://www.whitehouse.gov/the-press-office/dec laration-a-national-emergency-with-respect-2009-h1n1-influenza-pandemic-0.

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legal framework includes congressional oversight of any emergency declared by the President.66 These mechanisms have also been considered to be ‘deficient’ with regards to the lack of sufficient involvement of Congress.67 Conversely, the President of Mexico declared, through an Administrative Decree, a public health emergency on 24 April, 2009.68 This declaration also included prima facie extraordinary powers, under article 73 (XVI) of the Constitution. According to this constitutional provision, the Ministry of Health (Secretaría de Salud) can dictate all necessary preventive measures.69 There were no precedents or case-law in which this provision had been interpreted by Mexico’s Supreme Court, or other tribunals, as to which instances or types of preventive measures may be adopted during an epidemic. The emergency declaration due to the 2009–2010 H1N1 influenza pandemic was also the source of multiple criticisms. These were aimed, for the most part, against the WHO’s 11 June 2009 declaration of a maximum pandemic alert level, which was seen as creating “unjustified fears”.70 This decision can also be partially explained by the dire forecasts seen in the WHO’s then-existing pandemic guidelines, as well as the corresponding pandemic preparedness handbooks used by national authorities.71 The resulting backlash due to the declaration of an emergency highlights deficiencies in the definitional and scientific dimensions of pandemics in general, and the influenza virus in particular.72 This contested setting reflects the underlying technical complexities. It is also why unpredictable facts like pandemics will challenge any pre-established and casuistic legal framework. On the other hand, authorities in Mexico and the United States did not legally declare any derogation or suspension of human rights for the purposes of Article 4 of the ICCPR. Conversely, a series of measures which could be seen as “restrictions” of human rights were implemented. An example is the imposition of social distancing through the cancellation of a series of mass gatherings, as well as of schools. The deployed measures were mostly reactive, since they were used after the identification of cases in determinate schools. The procedure is also implemented for combatting seasonal influenza during “ordinary” times.73 Additional steps were taken in Mexico in comparison to the United States of America. In order to reduce the spread of the virus, multiple events involving mass 66 50

U.S.C. §§1622. (2008):235–238. 68 See the Presidential Decree of 24 April, 2009 at http://dof.gob.mx/nota_detalle.php?codigo=508 8366&fecha=25/04/2009. 69 Calling the powers foreseen by this Article a ‘sanitary dictatorship’ Tena Ramírez (1981):373. 70 Council of Europe (2010). 71 However, national health authorities had also projected dramatic forecasts of catastrophic pandemics. One policy document predating the influenza pandemic even stated: “to prepare for anything less [than a severe pandemic] would be a folly”. Centers for Disease Control and Prevention (2006, revised in 2007):23. 72 Abeysinghe (2015):205–206. 73 Cauchemez et al. (2014). 67 Roach

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gatherings were cancelled through administrative acts, particularly in Mexico City.74 Even though these acts were not challenged in courts, they can be construed as a restriction to the right of assembly, enshrined in Article 9 of the Mexican Constitution, as well as international treaties mentioned in preceding sections, of which Mexico is a state party.75 Ultimately, all of the public health measures contemplated within the Administrative Decree of 24 April, 2009 were already expressly provided for by the General Health Law of 1984, granting the Federal Ministry of Health the authority to implement them.76 Similarly, neither in Mexico, nor in the United States were administrative acts ordering the application of invasive measures issued. Mandatory quarantines and isolations of individuals cases were considered to be ineffective after the virus had started to spread.77 In addition, the U.S. declaration of emergency did include the allocation of powers related to “operational control” that would not fall under the purview of the Secretary of Health and Human Services in non-emergency periods.78 But, in general terms, this fell within the predetermined legal framework of the National Emergencies Act. Ultimately, the mild nature of the 2009–2010 A(H1N1) influenza pandemic did not lead to overarching restrictions of human rights. While social distancing and cancelation of mass gatherings could be construed as imposing limitations on the exercise of rights, they were seldom enforced and always in accordance to preexisting legal provisions. The declarations of emergency were aimed, for the most part, at enabling the use of additional financial resources, which are part of preexisting pools tagged for such occasions. In broad terms, it was a reflection of a rule of law model where an extraordinary event is largely tackled through pre-established frameworks.

4.2 Striking Constitutionalism at Its Core: States of Exception and Ebola The Ebola crisis in West Africa was already a dramatic showcase of how far from prepared the international community is for facing these threats. At the same time, it put national legal systems to the maximum test, in so far as it led to aggressive 74 Chowell

et al. (2011):7–8. Article 21 ICCPR. 76 Although sections I to XIII of Article Second of the Mexican Presidential Decree of 24 April 2009 allowed for the adoption of human-rights restrictive measures, all of them were already stipulated in Articles 134, 139, 143 and 152 of the General Health Law (Ley General de Salud) of 1984. 77 However, the Mexican Decree did contemplate this possibility amongst the range of available options. Moreover despite the technical advice against adopting these measures, public authorities from other countries imposed them against travelers in a few instances. Condon and Sinha (2010):1 and 8. 78 Mostly related to the deployment of “emergency public health and medical response assets”. See Pandemic and All Hazards Preparedness Act, Section 2801(b), 42 U.S.C. §300hh. 75 See

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containment measures not seen in decades, if not a full century.79 The Ebola crisis in West Africa of 2014–2016 was particularly catastrophic for the countries most affected: Guinea, Liberia and Sierra Leone.80 Contributing to the impact was the fact that these three countries’ health systems were already in a dire condition, only to be worsened by the consequences of the outbreak.81 The relationship between public health emergencies and constitutional states of emergency becomes manifest in such extreme circumstances. All three of the mainly affected states declared national emergencies,82 even if their constitutional processes for doing so varied. These declarations were followed by the implementation of human-rights restrictive measures such as community-level quarantines, including cordons sanitaires. The latter consisted of executive orders, backed by police force, of not entering or leaving a particular geographical point without previous authorization by officials to do so. On 31 July, 2014, the President of Sierra Leone issued a declaration of emergency for the purposes of Article 29 of the country’s Constitution.83 Additional procedural requirements, such as an ex-post approval of Parliament for its continuation after seven days, were statutorily required.84 Like in other cases, declarations were extended for continuous periods,85 albeit some critics argued that procedural requirements – like parliamentary approval for every renewal- may have been bypassed by the President when doing so.86 A Declaration of 6 August, 2014 by the President of Liberia explicitly indicated the possibility of derogating and suspending human rights, “if need be…”.87 The magnitude of the crisis was considered to be a threat against the “existence, security and well-being of the Republic, amounting to a clear and present danger”, thus invoking the clauses for a constitutional state of emergency under Article 86 of the Constitution of Liberia. It should be noted, additionally, that the state of emergency in Liberia was formally lifted in November, 2014, by considering that there was progress in the fight against Ebola.88 However, this was not the end of the public health emergency in general, since the last declaration of Libera as ‘Ebola-free’ by 79 McNeil

(2014). President of Nigeria also declared an emergency. However, this country was not as heavily affected by the outbreak, due in large part to early interventions through the timely use of mandatory isolation for an imported Ebola case. Omonzejele (2014):417. 81 See on this matter Marx (2017):43 et seq; also, Gostin and Ayala (2017):62–64. 82 Hodge et al. (2014):595 and 597. 83 Fofana (2014). 84 Article 29(3), Constitution of the Republic of Sierra Leone. 85 See the text of the statement by President Ernest Bai Koroma extending the emergency after one year in http://sierraloaded.net/koroma-extends-state-of-emergency/. 86 Thomas (2015). 87 Office of the President of Liberia (2014). President Sirleaf Declares 90-Day State of Emergency, As Governments Steps up the Fight against the Spread of the Ebola Virus Disease. Press Release. https://bit.ly/2MZKNRa. 88 MacDougall (2014). 80 The

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the WHO was issued only until 14 January, 2016.89 This highlights the distinction between a “state of emergency” and an emergency in a general sense. They are not always equivalent for constitutional purposes. Similarly, on 13 August, 2014, the President of Guinea declared a state of emergency (état d’urgence) due to the outbreak.90 Despite the fact that the index case, i.e. the first reported contagion that triggered the epidemic, was traced to the province of Guéckédou in this country,91 it was the last of the three mainly affected states to emit such a declaration. This may be related to the overall reticence with which officials faced the emergence of the Ebola outbreak, going as far as not acknowledging the magnitude of the crisis.92 The emergencies declared by the three heads of the executive in question can also be grasped through the viewpoint of presidentialist constitutions.93 The three legal systems may differ significantly from other constitutional backgrounds, particularly those belonging to what some would label as “western constitutionalism”.94 It may be the case that different analytical tools may be required for this context. As it occurred in the 2009–2010 H1N1 influenza pandemic, criticisms aimed at the response to the West-African Ebola crisis also underscore the difficulties for factchecking and then deciding whether and when declaring an emergency is justified. But, unlike the H1N1 influenza pandemic, in the Ebola crisis the source of chagrin was the delay in triggering the alarm. It was mainly the result of major disagreements between national authorities, international organizations and NGOs95 on whether the spread of Ebola warranted escalating the response.96 The 2014–2016 Ebola crisis also showcased how highly restrictive measures, such as mandatory isolation and quarantines, as well as previously long-forgotten strategies like cordons sanitaires,97 may be implemented during catastrophic epidemics. Considering how national health systems in the countries most affected by the virus were particularly under-resourced,98 the combination of adverse factors accelerated the crisis. The severity of the epidemic led to the restriction of the freedom of movement of thousands of persons, often through the use of police and even military force.99 As a result, entire regions of Guinea, Liberia and Sierra Leone were cordoned

89 World

Health Organization (2016a). the statement by the President at https://bit.ly/2x4SDOH. 91 Baize et al. (2014):1418–1419 and 1421. 92 World Health Organization (2015):13; also, Moon et al. (2015):2206–2207. 93 A comparison with the Latin American context is drawn in Tama (2015):37–39 and 158–160. 94 Hailbronner (2016):393. 95 The earliest warnings of the severity of the Ebola crisis were conveyed by an NGO, Doctors Without Borders (Médecins Sans Frontières). 96 See also Kamradt-Scott (2016):408. 97 Hodge et al. (2014):597. 98 The blurry and uncertain category of ‘failed and failing States’ is used in these type of contexts. See Giorgetti (2013):1357–1359; also Lee (2016):939–940. 99 Kamradt-Scott et al. (2016):104–105. 90 See

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off.100 The sweeping application of these measures led to questions related to the lack of due process considerations,101 particularly when restricting the right to liberty and freedom of movement, as enshrined in the ICCPR. The epidemic also had spillover effects in the restriction of constitutional rights, as restrictive measures for combatting Ebola, like mandatory quarantines, were implemented beyond the confines of West Africa.102 In sum, the constitutional regimes of the three West African countries at hand were a decisive factor for devising measures aimed at stemming the spread of a deadly pathogen such as Ebola. The derogations of human rights actively led to the implementation of highly restrictive measures, such as cordons sanitaires. This can be seen as the direct consequence of the threat posed by a severe disease outbreak, namely the most devastating Ebola epidemic known so far. A subsequent outbreak of the virus took place in the Democratic Republic of the Congo in 2018. It has not, however, led to a constitutional declaration of emergency as in the aforementioned West African countries.

4.3 The Zika Epidemic: Challenges for Defining Public Health Emergencies Doctrinal formulations of the extralegal model-archetype of constitutional emergencies emphasize how lawmakers, at all levels, cannot envisage each and every future instance. Thus, it can be sensitive to leave enough leeway for more contextualized decision-making, whilst not sidelining core, basic limits.103 The public health emergency caused by the Zika virus in 2016 is an example of how previously unknown threats,104 for which there are no clearly defined toolkits, put existing legal categories to the test. To this date, Brazil has been the most affected country.105 Although it is

100 For an account of the implementation of a cordon sanitaire in a village in Liberia, see Nyenswah

et al. (2015):179–182. details in Zidar (2015):513–515. 102 The decision to quarantine health workers returning from Ebola-stricken regions in the United States was a major point of contestation, given how they were considered by several specialists as scientifically unjustified. Drazen et al. (2014):2029. 103 This is also seen in the International Health Regulations (2005), since its Annex 2 mentions “unusual and unexpected” events as possible legal grounds for declaring a public health emergency of international concern. 104 At the moment in which a public health emergency of international concern was declared (1 February 2016), the full extent of the consequences of Zika virus and its possible link to cases of microcephaly were unknown. Heymann et al. (2016):719. 105 Oliveira et al. (2017):1591. 101 More

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not the only state that declared an emergency on the matter,106 it is the main focus of this section, as it is also the country where emergency measures were most visible. On 11 November, 2015, the Minister of Health of Brazil declared an emergency (Emergência em Saúde Pública de Importância Nacional) due to the surge in cases of microcephaly throughout the country and its then-suspected link to the Zika virus.107 The declaration was grounded on Article 87, sections I and II of the Brazilian Constitution, which do not foresee the arrogation of extraordinary powers, rather only enumerates every Minister’s constitutional role within the public administration. Notably, the declaration of a public health emergency was legally grounded on Decree No. 7616 of November 17, 2011.108 But the spread of Zika in Brazil did not give way to declaring a ‘state of emergency’ or ‘state of siege’ in terms of Articles 136 to 141 of the Brazilian Constitution. Basically, the degree of severity of this outbreak was not considered to put “public order or social peace”109 at risk. Epidemics like Zika do not follow the same pattern of, or have the same legal implications as other international health emergencies. The fact that it is a mosquitoborne disease that acquires human-to-human transmission only in relatively rare instances is decisive for ascertaining which public health measures may mitigate spread.110 The Zika virus’ most severe medical consequence is the neurological damage it can inflict on unborn infants.111 Resultantly, one of the salient constitutional issues related to the Zika epidemic was related to women’s sexual and reproductive rights. The stringent prohibitions on abortion came to the fore as an impediment for having alternatives, such as the interruption of pregnancy due to the risk of malformations.112 Given the kind of moral implications of sexual and reproductive rights, the issue remains highly controversial across Latin-American countries,113 Brazil being no exception. It can be argued that the Zika emergency revived a discussion of the scope of these human rights, more precisely their absence from constitutional provisions in several countries. It is not the first time an infectious disease outbreak has engendered 106 For

instance, Honduras also declared a ‘national sanitary emergency’ (emergencia sanitaria nacional) on 2 February 2016, due to the rise of Zika cases. Decreto Ejecutivo PCM-008-2016. Diario Oficial ‘La Gaceta’ No. 33,949, Section A. 11–14. 107 See the declaration at https://bit.ly/2ZD9IvC. 108 Decreto No. 7.616, 17 November, 2011, available at http://www.planalto.gov.br/ccivil_03/_Ato 2011-2014/2011/Decreto/D7616.htm. 109 Article 136 of the Constitution of the Federal Public of Brazil (Constituião da República Federativa do Brasil), 1988. 110 Gregory et al. (2017): 880–881. 111 After the initial wave, the causal link between Zika virus and microcephaly was reaffirmed through scientific publications. See Rasmussen et al. (2016):1981. 112 Article 128 of the Brazilian Criminal Code (Código Penal Brasileiro). However, a 2012 decision by the Supreme Court opened the door for the premature delivery of pregnancy in cases of “anencephalic fetuses”. See Machado and Cook (2018):198-199. 113 For an overview of the regulation or criminalization of abortion in several Latin American countries, including several of those affected by the Zika outbreak, see Abad Suárez (2015):26– 27. On activism for reproductive rights in Brazil, see Combellick-Bidney (2017):814–817.

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political momentum in this subject.114 While this is a contingent factual issue, the Zika epidemic became at least a temporary catalyst for momentum in debates about human rights, or lack thereof.115 The Zika outbreak ceased to be a public health emergency of international concern in 18 November, 2016,116 although the national emergency in Brazil lingered. Despite the initial momentum, the Zika episode so far has not led to overarching reforms expanding the reach of sexual and reproductive rights. To the contrary, there has been a reemergence of anti-abortion proposals within the Brazilian Congress afterwards.117 The way in which Zika may have reoriented public debates on issues which had been relatively dormant is an example of how emergencies can also be a catalyst for potential constitutional reforms.118

5 Conclusions The public health emergencies addressed in this chapter highlight how the national and the international levels can be correlated.119 Of course, the coupling between both levels is far from being straightforward. Every national legal system has its own, distinctive constitutional mechanisms for choosing which measures to implement, and how. Nevertheless, there is an inherent overlap between, for instance, public health emergencies of international concern, and constitutional procedures for declaring an emergency. Assessments for determining whether there is an emergency for constitutional purposes are intertwined with a series of factual considerations. The absence of standardized blueprints for declaring public health emergencies leads to questions of how to correctly assess their substantive justification. The challenge is two-fold since, on the one hand, there is still no scientific consensus regarding a clear-cut definition of a public health emergency; and, on the other hand, there is no uniformity in the existing legal frameworks for emergency response. Facts such as cross-border epidemics warranting extraordinary measures often lack a precise framing in clearcut legal provisions. Moreover, divergences between the constitutional framework of two or more countries may prevent a direct transplant of public health measures considered to be successful in foreign settings.

114 Notably, during the beginning of the 1960s, the link between rubella, measles and a high incidence

of stillbirths and several congenital syndromes is seen as a trigger of ensuing debates on abortion. See Reagan (2012): Chapter 4; also, Löwy (2016):13–15. 115 Hodge et al. (2016):713. 116 World Health Organization (2016b). 117 At the moment of writing, there is a pending ruling by the Supreme Court of Brazil dealing with the criminalization of abortion. Andreoni and Londoño (2018). 118 Loevy (2016):283 et seq. 119 An argument already made in Gostin (2014):70–71.

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The instances of public health emergencies described herein do not lead to a need for redesigning the general theories about emergencies, states of emergency, exception, siege, defense or martial law. Nevertheless, the examples analyzed here provide insights on multiple factual and normative challenges. Severe infectious disease epidemics may shake the very foundations of societies, whilst straining the regular underpinnings of institutions. As confirmed more recently in the catastrophic COVID-19 pandemic, cross-border public health emergencies are part and parcel of the debates on constitutionalism under extreme conditions. Addressing past public health emergencies allows for identifying both common and diverging patterns, whether in the exercise of extraordinary powers or in generalized restrictions of human rights. Insights herein may be retaken in future debates of how to legally gauge the varied range of responses to emergencies caused by disease outbreaks. The constitutional law dimension is a necessary component of any such analysis.

References Abad Suárez A (2015) Laicidad y derechos reproductivos de las mujeres en la jurisdicción constitucional latinoamericana. Instituto de Investigaciones Jurídicas/UNAM, Mexico Abeysinghe S (2015) Pandemics, science and policy. H1N1 and the World Health Organization. Palgrave Macmillan, Basingstoke Ackerman B (2004) The emergency constitution. Yale Law J 113:1029–1091 Agamben G (2012) Stato di Eccezione, 1st reprint, Bollati Boringhieri, Turin Andreoni M, Londoño E (2018) Brazil’s Supreme Court considers decriminalizing abortion. The New York Times. https://nyti.ms/2O9ALJ4 Arteaga Nava E (2000) Las Prohibiciones en la Constitución. Naturaleza y Principios Interpretativos. Jurídica. Anuario del Departamento de Derecho de la Universidad Iberoamericana 30:41–58 Baize S et al (2014) Emergence of Zaire Ebola virus disease in Guinea. New England J Medi 371:1418–1425 Böckenförde EW (2017) The repressed state of emergency: the exercise of state authority in extraordinary circumstances [1978]. In: Künkler M, Stein T (eds) Constitutional and political theory: selected writings 100. Oxford University Press, Oxford Bogdandy A, Dann P, Goldmann M (2010) Developing the publicness of public international law: towards a legal framework for global governance activities. In: Bogdandy A et al (eds) The exercise of public authority by international institutions. Advancing International Institutional Law, Springer, Heidelberg, pp 3–32 Brena Sesma I (2010) Evolución del derecho a la salud en México. Doscientos años. In: García Ramírez S (ed) El Derecho en México. Dos Siglos (1810–2010) Editorial Porrúa/UNAM, Mexico:547–585 Cárdenas Gracia J (2002) Remover los Dogmas. Cuestiones Constitucionales 6:17–48 Cauchemez S et al (2014) School closures during the 2009 influenza pandemic: national and local experiences. BMC Infect Dis 14. http://bmcinfectdis.biomedcentral.com/articles/10.1186/14712334-14-207 Centers for Disease Control and Prevention (2006, revised in 2007) Crisis and emergency risk communication. Pande Influ 23. https://emergency.cdc.gov/cerc/resources/pdf/cerc-pandemicfluoct07.pdf Chowell G et al (2011) Characterizing the epidemiology of the 2009 Influenza A(H1N1) pandemic in Mexico. PLoS Medi 7–8. http://journals.plos.org/plosmedicine/article?id=10.1371/journal. pmed.1000436

236

P. A. Villarreal

Combellick-Bidney S (2017) Reproductive rights as human rights: stories from advocates in Brazil, India and South Africa. Int J Human Rights 21(7):800–822 Condon B, Sinha T (2010) The effectiveness of pandemic preparations: legal lessons from the 2009 influenza epidemic. Florida J Int Law 22:1–30 Council of Europe (2010) Handling of the H1N1 pandemic: more transparency needed. Parliamentary Assembly Resolution 1749. https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en. asp?fileid=17889&lang=en Criddle EJ (2014) Protecting human rights during emergencies: delegation, derogation, and deference. Netherlands Yearbook Int Law 45:197–220 Desierto D (2012) Necessity and national emergency clauses. Martinus Nijhoff Publishers, Leiden Dicey AV (1948) Introduction to the study of the law of the constitution, 9th edn. Macmillan and Co. Ltd, London Drazen JM et al (2014) Ebola and quarantine. New England J Medi 371:2029–2030 Ferejohn J, Pasquale P (2004) The law of the exception: a typology of emergency powers. Int J Constituti Law 2:210–239 Fidler D (1996) Globalization, international law, and emerging infectious diseases. Emerg Infect Dis 2:77–84 Fidler D (1999) International law and infectious disease. Oxford University Press, Oxford Fitzpatrick J (1998) States of emergency in the Inter-American human rights system. In: Harris DJ, Livingstone S (eds) The Inter-American system of human rights. Clarendon Press, Oxford Fix-Zamudio H (2004) Los estados de excepción y la defensa de la Constitución. Boletín Mexicano de Derecho Comparado. XXXVII:801–860 Fofana U (2014) Sierra Leone declares emergency as Ebola death toll hits 729. Reuters. https:// reut.rs/2ZzjFtQ Frankenberg G (2014) Political technology and the erosion of the rule of law. Edward Elgar, Cheltenham/Northampton García-Sayán D (1988) Hábeas Corpus y Estados de Emergencia. Comisión Andina de Juristas/Fundación Friedrich Naumann, Lima Giorgetti C (2013) International health emergencies in failed and failing states. Georgetown J Int Law 44:1347–1386 Gostin L (2014) Global health law. Harvard University Press, Cambridge Gostin L, Ayala A (2017) Global health security in an era of explosive pandemic potential. J Nat Secur Law Pol 9:53–80 Gregory C et al (2017) Modes of Transmission of Zika Virus. J Infect Dis 216(suppl_10):S875–S883 Gross O (2003) Chaos and rules: should responses to violent crises always be constitutional? Yale Law J 112:1011–1134 Gross O, Ni Aoláin F (2006) Law in times of crisis. Emergency powers in theory and practice. Cambridge University Press, Cambridge Guthrie A, Fleck F (2017) Quality of care is key to tackling Mexico’s diabetes emergency. Bull World Health Organ 95(6):393–394. https://doi.org/10.2471/BLT.17.020617 Hailbronner M (2016) Constitutional legitimacy and the separation of powers. Looking forward. In: Fombad CM (ed) Separation of powers in African constitutionalism. Oxford University Press, Oxford Harlow C (2006) Global administrative law: the quest for principles and values. Eur J Int Law 17:187–204 Heymann D et al (2016) Zika virus and microcephaly: why is this situation a PHEIC? Lancet 387:719–721 Hodge J Jr, Weidenaar K (2017) Public health emergencies as threats to national security. J Nat Secur Law Policy 9:81–94 Hodge J Jr et al (2014) Global emergency legal responses to the 2014 ebola outbreak. J Law, Medi Ethics 42:595–601 Hodge J Jr et al (2016) Zika virus and global implications for reproductive health reforms. Disas Medi Public Health Prepared 10(5):713–715

Public Health Emergencies and Constitutionalism …

237

Hodge JG, Gulinson C, Hensley D (2018) The opioid crisis response act: looking ahead, ignoring the present. Jurist.org. https://ssrn.com/abstract=3255088 Jakab A (2005) German constitutional law and doctrine on state of emergency—paradigms and dilemmas of a traditional (continental) discourse. German Law J 7(5):453–477 Kamradt-Scott A (2016) WHO’s to blame? The World Health Organization and the 2014 Ebola outbreak in West Africa. Third World Quart 37:401–418 Kamradt-Scott A et al (2016) Civil–military cooperation in Ebola and beyond. Lancet 387(10014):104–105 Lazar NC (2008) A topography of emergency power. In: Ramraj VV (ed) Emergencies and the limits of legality. Cambridge University Press, Cambridge Lee TL (2016) Making international health regulations work: lessons from the 2014 Ebola outbreak. Vanderbilt J Transnat Law 49:931–987 Loevy K (2016) Emergencies in public law. The politics of containment. Cambridge University Press, Cambridge Löwy I (2016) Zika and microcephaly: can we learn from history? Physis: Revista de Saúde Coletiva 26:11–21 MacDougall C (2014) Liberia president, citing Ebola gains, ends state of emergency. The New York Times. https://nyti.ms/1u6tKtL Machado MR, Cook RJ (2018) Constitutionalizing abortion in Brazil. Revista de Investigações Constitucionais 5(3):185 Marx M (2017) Ebola epidemic 2014–2015: taking control or being trapped in the logic of failure— what lessons can be learned? In: Vierck L, Villarreal P, Weilert K (eds) The governance of disease outbreaks. International health law: lessons from the Ebola crisis and beyond. Nomos, Baden-Baden, pp 43–60 McNeil DG Jr (2014) Using a tactic unseen in a century, countries cordon off Ebola-racked areas. The New York Times. http://www.nytimes.com/2014/08/13/science/using-a-tactic-unseen-in-acentury-countries-cordon-off-ebola-racked-areas.html Moon S et al (2015) Will Ebola change the game? Ten essential reforms before the next pandemic. The report of the Harvard-LSHTM independent panel on the global response to Ebola. Lancet 386:2204–2221 Nyenswah T et al (2015) Community quarantine to interrupt Ebola transmission—Mawah village, Bong County, Liberia, August-October 2014. Morb Mortal Wkly Rep 64:179–182 Office of the High Commissioner for Human Rights (2003) Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers. United Nations, Geneva Oliveira WK et al (2017) Zika virus infection and associated neurologic disorders in Brazil. New Eng J Medi 376:1591–1593 Omonzejele PF (2014) Ethical challenges posed by the Ebola virus epidemic in West Africa. J Bioethi Inqu 11:417–420 Posner R (2006) Not a suicide pact. The constitution in a time of national emergency. Oxford University Press, Oxford Rasmussen SA et al (2016) Zika virus and birth defects—reviewing the evidence for causality. New Eng J Medi 374:1981–1987 Reagan LJ (2012) Dangerous pregnancies. Mothers, disabilities and abortion in modern America. University of California Press, Berkeley, Chapter 4 Roach K (2008) Ordinary laws for emergencies and democratic derogations from rights. In: Ramraj VV (ed) Emergencies and the limits of legality. Cambridge University Press, Cambridge Rossiter CL (1948) Constitutional dictatorship. Princeton University Press, Princeton Scheppele KL (2006) Small emergencies. Georgia Law Rev 40:835–862 Schmitt C (1922) Politische Theologie, 1st edn. Duncker & Humblot, Munich Schmitt C (1928) Die Diktatur, 1st edn. Duncker & Humblot, Munich-Leipzig Schmitt C (1932) Der Begriff des Politischen. Duncker & Humblot, Munich-Leipzig Sunstein CR (2016) The most knowledgeable branch. Uni Pennsylvania Law Rev 164(7):1607–1648

238

P. A. Villarreal

Tama J-N (2015) L’odyssée du constitutionnalisme en Afrique. L’Harmattan, Paris Tena Ramírez F (1981) Derecho Constitucional Mexicano, 18th edn. Editorial Porrúa, Mexico Thomas AR (2015) President places Sierra Leone on permanent state of emergency—says SLPP. John Benjamin. The Sierra Leone Telegraph. http://www.thesierraleonetelegraph.com/?p=10139 Tushnet M (2007) The political constitution of emergency powers: parliamentary and separationof-powers regulation. Int J Law Cont 3(4):275–288 Venzke I (2010) International bureaucracies from a political science perspective—agency, authority and international institutional law. In: Av et al (eds) The exercise of public authority by international institutions. Advancing international institutional law. Springer, Heidelberg, pp 67–98 Voisset M (1969) L’Article 16 de la Constitution du 4 Octobre 1958. R. Pichon et R. Durand-Auzias, Paris World Health Organization (2011) Strengthening Response to Pandemics and Other Public Health Emergencies. Report of the Review Committee on the Functioning of the International Health Regulations (2005) and on Pandemic Influenza (H1N1) 2009:27–44. http://www.who.int/ihr/pub lications/RC_report/en/ World Health Organization (2014) Statement on the 1st meeting of the international health regulations emergency committee on the 2014 Ebola outbreak in West Africa. http://www.who.int/med iacentre/news/statements/2014/ebola-20140808/en/ World Health Organization (2015) Report of the Ebola interim assessment panel 13. https://bit.ly/ 1JS5lQe World Health Organization (2016a) Latest Ebola outbreak over in Liberia; West Africa is at zero, but new flare-ups are likely to occur. https://bit.ly/1RGgqL1 World Health Organization (2016b) Fifth meeting of the emergency committee under the international health regulations (2005) regarding microcephaly, other neurological disorders and Zika virus. http://www.who.int/mediacentre/news/statements/2016/zika-fifth-ec/en/ Zidar A (2015) WHO international health regulations and human rights: from allusions to inclusion. Int J Human Rights 19:505–526

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Constitutionalism for Divided Societies

Introduction: Constitutionalism for Divided Societies Patrick Graham

Abstract The commentary in this Part of the book focuses on a range of tensions that have developed from misjudged political meddling in fragile constitutional orders. The writers capture the extent to which the operation of constitutional settlements in divided, heterogeneous multinational European states can be affected by no small degree of political contingency. The timing of this thoughtful analysis is particularly auspicious given the development of a range of constitutional ruptures across Europe over the past few years. More specifically, the authors offer an account, through an eclectic and innovative array of methodological style, of how legal devices that often operate at the subterranean may in fact entrench communal division in a crisis. Read together, then, these chapters offer an innovative exploration of a range of legal responses to acute constitutional stress in several divided European nation states.

Constitutional stress may develop abruptly as the unintended, or unforeseen, result of ill-conceived political interference in constitutional ordering. This is the organising theme of the commentary in this Part, which brings into sharp relief the extent to which the operation of constitutional settlements in divided, heterogeneous multinational European states is characterised by no small degree of contingency. The timing of this thoughtful analysis is auspicious. Three weeks before the international symposium at the University of Haifa that led to the development of this volume’s chapters, the United Kingdom’s (UK) uncodified and ancient constitution was subject to an unexpected and profound shock: the product of expedient political decision-making. Though many thought the result would be close, very few observers predicted that the country would vote, as it ultimately did, to leave the European Union (EU) in the 23 June 2016 referendum by 52–48%. The referendum had been called by the then Prime Minister, David Cameron, in an ill-judged attempt to manage division within his governing Conservative party: while the country’s relationship with the EU had been an emotive and fraught one since the UK’s accession to the P. Graham (B) School of Law, University of New England, Armidale, NSW, Australia e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_15

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organisation in 1973, it was far from the top of the British public’s list of political priorities. It is too early to tell what the UK’s political settlement will look like over the next decades as a result of the referendum result: what is palpably clear, however, is that constitutional innovation of some degree will be required to prevent the break-up of the Union. The chapters in this Part provide us with a cogent and essential panEuropean insight into how that change might occur, and, equally important, alert us to the possible dangers of fundamental structural change. The chapters’ authors offer an account, through an eclectic and innovative array of methodological style, of how, in the face of emergency, legal devices that often operate at the subterranean may, in fact, entrench communal division: or, at least, severely undercut the constructive capacity of institutional power–sharing structures in divided polities. Before turning to the chapters in some more detail, it should be pointed out that, like the jurisdictions considered in this Part, it is clear that the UK’s post-Brexit constitutional pressure points will be shaped by unforeseen contingency. The UK is a multinational state with government power devolved, since the late 1990s, from Westminster to Northern Ireland, Scotland, and Wales (with varying degrees of autonomy). While England and Wales voted to leave the EU, Northern Ireland and Scotland, by contrast, voted to remain by clear margins. Beyond this level of sub-national disunion, the UK is, moreover, now a sharply divided society along ‘leave/remain’ lines: two obvious symptom being, first, the collapse of the centre ground of politics and a partial, but dramatic, reconfiguration of traditional support for its three leading political parties; and, secondly, the collapse of Northern Ireland’s power-sharing institutions. Remarkably, this fissure transcends class and ethnic divides. As Yaniv Roznai and Richard Albert note in this volume’s introductory chapter, multinational states often develop new arrangements in an effort to keep constituent parts together in the face of severe pressure.1 Constitutional instability can also arise in response to those novel arrangements or pressures. The UK is now at just such a moment that demands significant constitutional change. Three years on and the magnitude of the shock to the UK’s constitutional order is only now being realised in light of the executive’s attempts to implement the 2016 vote through legal means in the teeth of, first, the Westminster parliament’s dogged rejection of those efforts, and, secondly, judicial review of its actions. The unexpected referendum result caused both foreseeable and unpredictable constitutional effects. The foreseeable outcomes relate to the now precarious position of Northern Ireland and Scotland within the Union. Less predictable, notwithstanding that the UK’s disentanglement from the EU’s quasi-federalist constitutional order was a calculable matter of complexity (to put it mildly), has been the capricious nature of the constitutional review cases the process triggered. Plebiscitary democracy is, we have now discovered, unsuited to the UK’s ultimate constitutional principle: the sovereignty

1 See in this volume Yaniv Roznai and Richard Albert, ‘The Depth and Diversity of Modern Pressures

on Constitutionalism’.

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of the Queen-in-Parliament. In two momentous UK Supreme Court decisions, executive power applied pursuant to the Brexit process has been ‘constitutionalised’ and, thus, made to accord with, and submit to, the principle of parliamentary sovereignty.2 It is in these types of extreme conditions, following many decades of relative stability within the UK’s constitutional settlement, where, as Roznai and Albert note, the complexity of managing constitutionalism is most apparent.3 It is also where fissures in the UK’s delicate constitutional arrangements—based, as they are, on an intricate web of ‘constitutional’ statutes, common law principles, residual executive prerogative powers, unwritten conventions, and operating in the context of devolved powers—have emerged. How should the UK proceed in developing its post-Brexit constitutional settlement in light of these existential challenges and the divided society—particularly with rekindled nationalist sentiment across the Union—that the referendum helped to congeal? The chapters in this Part offer compelling and innovative accounts as to what the future could hold: they also highlight the dangers that may lie ahead. Political conflict and emergencies are invariably met with innovative designs and judicial articulations that, in turn, catalyse fateful but unforeseen results. This is the case in respect of the UK’s recent constitutional terrain: it is also a recurrent feature of the work of Nasia Hadjigeorgiou and Nikolas Kyriakou in their paper on the use (or, on occasion, lack thereof) of the doctrine of necessity in the Republic of Cyprus. The authors argue that the principle of necessity has, since the formation of the Cypriot state in 1960, been employed inconsistently as an instrument of ultimate expedience by both the legislative and judicial branches of state. The result is a dilution of the Republic’s non–Greek Cypriot minority groups’ legal rights and civil liberties. The doctrine of necessity is, as Hadjigeorgiou and Kyriakou cogently assert, now the ‘unwritten cornerstone of the Cypriot legal order’: one that heightens and further entrenches the hegemony of the island’s majority community. This pattern of the normalisation of the exception—or the ‘exceptionless exception’4 —is a familiar one to emergency scholars and a recurrent theme in this volume of essays. The doctrine of necessity, too, is of ancient lineage and one that John Locke later drew on as a means of developing a security against the exercise of acts of illegality.5 The innate but abstract standard of common law ‘reasonable’ or ‘immediate’ necessity— which would later come to be conceived as a distinctly Diceyan construct—has decisively forged Britain’s emergency power regime over several centuries. Similarly, in the judicial conception of emergency as developed by the Cypriot courts, which Hadjigeorgiou and Kyriakou closely consider, necessity is then employed as both 2 See R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, and R (Miller)

v The Minister; Cherry v Advocate General for Scotland [2019] UKSC 41. See also, e.g., Ewing K (2017) Brexit and Parliamentary Sovereignty. Mod L R 80(4):711–726. 3 Roznai and Albert, n 1. 4 Gross O (2000) The Normless and Exceptionless Exception: Carl Schmitt’s Theory of Emergency Powers and the “Norm-Exception” Dichotomy’. Cardozo L. Rev. 21:1825–1868. 5 de Wilde M (2010) Locke and the State of Exception: Towards a Modern Understanding of Emergency Government. 6 Eur. Con. L. Rev. 249–267.

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legal justification for derogation from the constitutional order and a space within which then to act: until, at least, the relevant crisis passes. Necessity has become the ‘unwritten cornerstone of the Cypriot legal order’, as Hadjigeorgiou and Kyriakou show, while the Cypriot Constitution and its bicommunal features were soon subordinate to the survival of the young state. The authors argue that the flaws or ‘corrosive effects’ of the doctrine of necessity, as in the case of Cyprus, are revealed not as a matter of inherent principle. Rather, they relate to the doctrine’s application: necessity has invariably been employed in a disproportionate manner and in a way that affords considerable discretionary authority to the executive. In turn, it acts as a licence for departure from constitutional tenets that, ultimately, have the scope to limit the operation of fundamental rights. The doctrine of necessity is, then, used as both sword and protective shield in the act of preservation of both the constitution and, ultimately, because of the particular demographic movements that exist on the island, the Greek Cypriot community’s interests within the Republic. While this jurisprudential sleight of hand, to put it crudely, continues to serve a highly expedient purpose in the Cypriot context, perhaps a more coherent, stable constitutional dispensation for the island—particularly given its stark post–1974 partition—may lie in the concept of asymmetric autonomy. This form of political settlement in response to disputes over national self–determination has grown in use since the fall of the Soviet Union.6 Maja Sahadži´c challenges existing federalist theory by taking a pioneering and comparative look at the interplay between constitutional asymmetries in federal states and multinationalism. The latter term here is defined as ‘territorially based differences’ anchored in one or more claims for political autonomy. This opens up the space, Sahadži´c argues, for a more holistic view of contemporary strains on federal systems that are not, by contrast, adequately revealed by a prevalent emphasis on federal uninational symmetries. Constitutional asymmetries arise when ‘variations in practices and relationships’ that stem from, for example, linguistic, religious, or ethnic differences between, on the one hand, subnational entities and, on the other, the political centre are then ‘embedded in legal texts’. This is very apparent in disparities in the distribution of legal competences between regions. One particular area of weakness that Sahadži´c identifies as arising from federal theory scholarship’s focus on uninational federalism is its capacity to lead to the neglect of the constitutional asymmetry that surfaces when a process of federalisation arises from emergency. An asymmetrical constitutional accommodation within a multinational polity, Sahadži´c argues, offers a stable path towards ‘diversity recognition’ and, ultimately, in peacefully holding the state together in the context of competing claims to power. The legal asymmetries that arise from multi–tiered multinationalism paradoxically serve to both fragment and stabilise the constitutional framework: when such ‘differences become considerable, asymmetry has a destabilizing potential on the central 6 Wolff

S (2010) Cases of Asymmetrical Territorial Autonomy. In: Weller M, Nobbs K (eds) Asymmetric Autonomy and the Settlement of Ethnic Conflicts, University of Pennsylvanian Press, 17–47.

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level.’ Here, again, the resonance with the work of Hadjigeorgiou and Kyriakou on Cyprus is clear. On one reading it is possible to identify a process of constitutional asymmetry as having unfolded over the past half–century on the island republic: but, this time, imposed juridicially—and by stealth—as the aberrant, inadvertent offshoot of a forlorn attempt to hold the polity together in a state of crisis. An additional example of the potentially destabilizing—though unintended— effects of constitutional measures imposed in a time of political crisis is neatly advanced in the work of Skoutaris and Dinas. The authors work through the implications of a very particular form of response to secessionist preferences—the devolution of legislative power to autonomous regions—on the constitutional order. The authors explore, through the use of empirical evidence from Spain, how the grant of significant legislative competence as an ostensible weapon in the accommodation of ‘centrifugal tendencies’ can incubate or sharpen those secessionist tendencies in the plurinational state. The nature of competitive politicking means that, at election time, secessionist character is fostered with the potential, ultimately, to result in a heightened sense of ‘subnational identity’. Skoutaris and Dinas argue that political actors are incentivised to place that identity at the heart of electoral campaigns so as to prompt higher participation in those contests, as well as employing it as a means of shifting the responsibility—sometimes, perhaps, disingenuously through a blurring of competencies—for the negative consequences of public policy decisions back to the national level. This hypothesis is then tested. The abstract turns to the particular in the form of a focus on Catalonia: an autonomous region in north–eastern Spain that is, at the time of writing, now at the sharp end of a political struggle with central authorities in Madrid. The twin ‘pillars of substantial identity socialization’ in the form of education and family, Skoutaris and Dinas argue, serve only to indirectly reinforce the process of ‘endogenous decentralization’: those factors are, rather, subservient to the role of electoral politics in which actors ‘outbid each other along identity lines’. Crucially, then, regional elections ‘strengthen subnational identities and shape decentralisation preferences accordingly’, while the impact of elections increases each time, too. It is, the authors argue, through the means of institutional devices (and engagement) that the formation of subnational identity is most sharply propagated. Skoutaris and Dinas employ a sophisticated method of analysis of the behaviour of first–time eligible voters in Catalonia in order to further strengthen their claim. There is some evidence that these dynamics work in similar vein in other regions, too, such as Scotland following the UK’s devolution settlement in the late 1990s: indeed, the post-UK referendum fallout provides further evidence of these forces at work. Skoutaris and Dinas argue that the devolution of legislative autonomy to subnational regions is a strong break on the potential for civil unrest. A potential—albeit paradoxical—equipoise to the inadvertent results that may stem from a grant of territorial autonomy is the related grant of stronger powers of redistributive competences. This, in the authors’ view, may serve to stymie subnational political actors from looking to greater clarity of expression or formation of a more assertive, overt self–identity as, instead, political preoccupations and debate focus on the more quotidian pressures of self-governance.

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Read together, then, the chapters in this Part offer an innovative exploration of a range of legal responses to acute constitutional stress in several heterogeneous European nation states. The root of those pressures invariably lies in contested assertions of political autonomy and claims to national self–determination. The lesson that we should readily take from the diligent analysis undertaken the contributors is that, in designing or reshaping those constitutional frontiers in response to political emergency, the instruments used to assuage those pressures and accommodate competing constitutional claims may well lead to equally unexpected and unpalatable outcomes. We would do well to be alert to those dangers in constructing future, innovative constitutional designs in exigency given the potential for (further) balkanisation. This is, at time of writing, no doubt of ultimate significance to the UK, too, as its society unexpectedly works out the ruminations of both the process of disentanglement from the EU, and, further down the line, its post-Brexit constitutional order.

References Albert R, Roznai Y (2020) The depth and diversity of modern pressures on constitutionalism. In Albert R, Roznai Y (eds) Constitutionalism under extreme conditions. Springer, pp 1–13 de Wilde M (2010) Locke and the state of exception: towards a modern understanding of emergency government. Eur Con L Rev 6:249–267 Ewing K (2017) Brexit and parliamentary sovereignty. Mod L R 80(4):711–726 Gross O (2000) The normless and exceptionless exception: Carl Schmitt’s theory of emergency powers and the “Norm-Exception” dichotomy’. Cardozo L Rev 21:1825–1868 Wolff S (2010) Cases of asymmetrical territorial autonomy. In: Weller M, Nobbs K (eds) Asymmetric autonomy and the settlement of ethnic conflicts. University of Pennsylvanian Press, pp 17–47

The Constitutionalism of Emergency: The Case of Bosnia and Herzegovina and Beyond: Multinationalism Behind Asymmetrical Constitutional Arrangements Maja Sahadži´c Abstract This paper explores the difficulties with multinationalism that lead to crises and conflicts; and the variation in effects and responses between traditional types of crises and the crises caused by multinationalism. To overcome impediments associated with the traditional concept, the paper emphasizes the role of constitutional asymmetries in addressing extraordinary circumstances. This is further assessed by examining the effects of multinationalism on constitutional systems. While Bosnia and Herzegovina serves as the starting point and a clear case in support of the theoretical discourse, other constitutional systems are also shown to support the key points.

1 Introduction It has previously been observed that the majority of states define some form of constitutional emergency regime. This suggests that constitutions around the world are designed in such a way as to provide a basis for a response to potentially extraordinary circumstances.1 Two remarks can be made in this respect. Firstly, scholars researching constitutional emergency provisions have long debated the traditional types of crises, such as armed conflict, insurgency, economic crisis and terrorism,2 1 Bjørnskov, C., & Voigt, S. (2016) ‘The Architecture of Emergency Constitutions’. 16/03/2016. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2798558. 2 Rossiter, C. (2009). Constitutional Dictatorship, Crisis Government in the Modern Democracies. New Brunswick, London: Transaction Publishers. Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar. Ferejohn, J., & Pasquino, P. (2004). The law of the exception: A typology of emergency powers. International Journal of Constitutional Law, 2(2). In general, see: Gross, O., & Aoláin, F. N. (2006). Law in Times of Crisis: Emergency Powers in Theory and Practice. Cambridge: Cambridge University Press.

M. Sahadži´c (B) Government and Law Research Group, University of Antwerp, Antwerp, Belgium e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_16

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neglecting other contemporary potentials for exceptional circumstances. Secondly, one of the main obstacles linked to constitutional emergency regimes is that an emergency itself points to the limits of constitutionalism.3 This is mainly apparent in mechanisms designed to respond to the effect of emergencies, such as emergency powers, while other potentially versatile mechanisms identified by other fields of research have been overlooked. One significant aspect of contemporary observations is that they emphasize, among other aspects, the critical role of identity markers in generating crises and conflicts.4 This is because multinationalism is recognized as a significant contributory factor in the occurrence of intense relationships within systems that incorporate various identities.5 There are at least two reasons why differences in identity may become salient in producing extraordinary circumstances. Firstly, the groups with distinctive identity markers may have the potential for political mobilization, as they may inspire members of the group to pursue changes within the system based on a difference in identity.6 Secondly, and not unconnected to the first, when and where this occurs, such groups induce constitutional asymmetry relating to their particular identity. Indeed, recent studies confirm close correlations between multinationalism and constitutional asymmetry.7 In other words, this implies that the systems will employ permanent or transitional asymmetrical solutions,8 in an attempt to accommodate multinationalism. This often occurs in response to an emergency, with the aim of disabling the ‘secession potential’9 and holding the system together. Ultimately, these considerations are confirmed by many examples of new constitutional designs around the world that exhibit elements common to multinationalism and constitutional asymmetry established under extraordinary circumstances. One obvious example is Bosnia and Herzegovina, where the constitution prescribes a range of asymmetrical provisions with regard to the ethnic-national communities making up

3 Dyzenhaus,

D. (2012). States of Emergency. In M. Rosenfeld, & A. s. Saj´o (Eds.), The Oxford Handbook of Comparative Constitutional Law Oxford: Oxford University Press. 4 Burgess, M. (2006a). Comparative federalism, Theory and practice. London: Routledge. 5 Watts, R. L., Relations, Q. s. U. I. o. I., & Studies, Q. s. U. S. o. P. (2008). Comparing Federal Systems. School of Policy Studies, Queen’s University. 6 Ibid. 7 Stepan, A. (2004). Towards a New Comparative Politics of Federalism, Multinationalism, and Democracy: Beyond Rikerian Federalism. In E. L. Gibson (Ed.), Federalism and Democracy in Latin America Baltimore, Md: Johns Hopkins University Press. Burgess, M. (2006a). Comparative federalism, Theory and practice. London: Routledge. 8 Watts, R. (1999a). The Theoretical and Practical Implications of Asymmetrical Federalism. In R. Agranoff (Ed.), Accommodating Diversity: Asymmetry in Federal States Baden-Baden: Nomos Verlagsgesellshaft. 9 Tarlton, C. D. (1965). Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation (research article). The Journal of Politics, 27(4), 861. See in this volume: Nikos Skoutaris and Elias Dinas, The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences.

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the constituent peoples.10 Similar solutions can be found, for example, in Belgium, Canada, China, India, Indonesia, Iraq, Italy, Malaysia, Myanmar, Pakistan, Russia, Spain and the United Kingdom.11 Thus, multinationalism and constitutional asymmetries have the potential to challenge the concept of constitutional emergency regimes. However, as the topic is essentially unexplored, there is a need for an elementary debate that addresses specific types of crises and conflicts generated by multinationalism, government responses to extraordinary circumstances, and the effects on the constitutional system caused by multinationalism. Certainly, a comprehensive discussion about the topic lies beyond the scope of this paper. However, it is hoped that this research will contribute to a deeper, perhaps altered, understanding of constitutional emergencies through the concepts of multinationalism and constitutional asymmetry.

2 Exceptional Circumstances: Traditional and Multinational Traditionally, research investigating constitutional emergency regimes has mainly focused on three types of crises: war, rebellion and economic depression. (Rossiter 2009)12 These previous studies attempt to evaluate the interaction between the impact of armed conflicts, natural disasters, riots or economic crises on the constitutional system and the government’s response to these exceptional circumstances.13 Equally important, in recent years, there has been an increasing interest in emergency provisions that include responses to (domestic) terrorist threats. A considerable amount of literature has been published on how terrorism challenges the constitutional integrity of states and leads to specific responses from governments under exceptional circumstances.14 Although a search of the literature shows that there is no unique pattern in classifying the exceptional nature of circumstances, the most common phrasing 10 Sahadži´ c,

M. (2011). Priroda politiˇckog sistema u Bosni i Hercegovini. In D. Banovi´c, & S. Gavri´c (Eds.), Država, politika i društvo u Bosni i Hercegovini – Analiza postdejtonskog politiˇckog sistema Sarajevo: University Press, Magistrat izdanja. 11 For practical reasons, this article mainly refers to several states on the European continent, excluding multi-tiered multi-national systems with only one asymmetrical region within the state or with overseas territories, due to their peculiar status. 12 Rossiter, C. (2009). Constitutional Dictatorship, Crisis Government in the Modern Democracies. New Brunswick, London: Transaction Publishers. 13 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar. Rossiter, C. (2009). Constitutional Dictatorship, Crisis Government in the Modern Democracies. New Brunswick, London: Transaction Publishers. Ferejohn, J., & Pasquino, P. (2004). The law of the exception: A typology of emergency powers. International Journal of Constitutional Law, 2(2). 14 Finn, J. E. (1990). Constitutions in Crisis: Political Violence and the Rule of Law. New York, Oxford: Oxford University Press. Ackerman, B. (2004). The Emergency Constitution. The Yale Law Journal, 113. Dyzenhaus, D. (2012). States of Emergency. In M. Rosenfeld, & A. s. Saj´o (Eds.), The Oxford Handbook of Comparative Constitutional Law Oxford: Oxford University Press. See in this

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includes ‘state of emergency’ and ‘state of exception’.15 In the light of this, one of the most frequently explored concepts in the traditional approach to exceptional circumstances has been the concept of emergency powers. In particular, it is now well established from a variety of studies that two issues linked to emergency powers have been well considered: the scope of expansion of emergency powers16 and the potential abuse and misuse of emergency powers.17 Regarding the contemporary potential for exceptional circumstances, it has been argued that the traditional function of constitutional emergency regimes is challenged by multinationalism.18 This argument is based on two factors. Firstly, at present, a large proportion of the world’s population lives in a constitutional system with some form of federal arrangement.19 Secondly, the majority of these systems are

volume: Ming-Sung Kuo, From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization. 15 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar. 16 Bjørnskov, C., & Voigt, S. (2016) ‘The Architecture of Emergency Constitutions’. 16/03/2016. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2798558. Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar. Ferejohn and Pasquino mention ‘the delegation of powers to a president, or to some other constitutional authority, to issue decrees, to censor information, and to suspend legal processes and rights.’ Ferejohn, J., & Pasquino, P. (2004). The law of the exception: A typology of emergency powers. International Journal of Constitutional Law, 2(2). 17 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar. Ferejohn, J., & Pasquino, P. (2004). The law of the exception: A typology of emergency powers. International Journal of Constitutional Law, 2(2). 18 For the purpose of this paper, multinationalism is understood as territorially based differences built on linguistic, religious, cultural, ethnic, and other identities where significant groups with one or more distinct identities claim important political autonomy around these differences. Stepan, A. (2004). Towards a New Comparative Politics of Federalism, Multinationalism, and Democracy: Beyond Rikerian Federalism. In E. L. Gibson (Ed.), Federalism and Democracy in Latin America Baltimore, Md: Johns Hopkins University Press. 19 Hueglin, T. O. (2013). Comparing federalism: Variations or distinct models? In A. Benz, & J. Broschek (Eds.), Federal Dynamics: Continuity, Change, and the Varieties of Federalism Oxford: Oxford University Press. Also: Elazar, D. J. (2006). Exploring federalism. Tuscaloosa, Ala, University of Alabama Press. However, in reality, the numbers are even higher because contemporary federal arrangements are identifiable in quasi-federal states, regionalized unitary states, and transnational settings. Delmartino, F. (2009). New Dimensions of Asymmetry in (Quasi-) Federal States and in the European Union. In F. Palermo, C. Zwilling, & K. Kössler (Eds.), Asymmetries in Constitutional Law, Recent Developments in Federal and Regional Systems Bozen/Bolzano: Europäische Akademie Bozen/Accademia Europea Bolzano. Also: Palermo, F. Ibid. Asymmetries in Constitutional Law – An Introduction. Bozen/Bolzan. Sahadži´c, M. (2017). Constitutional asymmetry vs. sovereignty and self-determination. sui-generis.

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considered ‘multinational’.20 In the literature, it is suggested that these two factors imply that these systems have the potential for fragmentation21 but may also develop bonds which hold the system together.22 On the one hand, the systems attempt to respond to emerging fragmentation through the accommodation of multinationalism, namely by introducing intermediary tiers of government between the central and municipal levels, thus creating multi-tiered systems. On the other hand, these systems respond to multinationalism through a variety of federal arrangements, in particular, constitutional asymmetry.23 The argument that multinationalism puts traditional constitutional emergency regimes on trial is reinforced by the fact that the constitutional system may come under siege by multinational concerns in numerous unanticipated ways. In general, these concerns fall under concepts such as self-governance and autonomy, or other more hardened notions such as self-determination claims, secession, independence and separatism, accompanied by violence. One clear example is the violent conflict which occurred in the former Yugoslavia, and more specifically, Bosnia and Herzegovina, from 1992 to 1995. The most recent case is the Catalan referendum in 2017, 20 Frenkel,

M. (1986/2007). Federal Theory. Zuchwil/Switzerland: Centre for Research on Federal Financial Relations and The Australian National University, Canberra. Popelier, P. (2014). Subnational multilevel constitutionalism. Perspectives on federalism, 6(2), 1–23. Also: Blindenbacher, R., & Watts, R. (2002). Federalism in a Changing World – A Conceptual Framework for the Conference. In R. Blindenbacher, & A. Koller (Eds.), Federalism in a Changing World, Learning from Each Other, Scientific Background, Proceedings and Plenary Speeches of the International Conference on Federalism Montreal & Kingston, London, Ithaca: McGill’s Queen’s University Press. 21 Obinger, H., Leibfried, S., & Castles, F. G. (2005). Federalism and the Welfare State: New World and European Experiences. Cambridge University Press. 22 Stepan, A. (2004). Towards a New Comparative Politics of Federalism, Multinationalism, and Democracy: Beyond Rikerian Federalism. In E. L. Gibson (Ed.), Federalism and Democracy in Latin America Baltimore, Md: Johns Hopkins University Press. 23 The literature on comparative federalism makes use of the term ‘asymmetry’ to indicate differences in the status between and among different tiers in the system. De facto or political asymmetry is defined as practices and relationships based on linguistic, religious, cultural, ethnic, social, economic, political, and other differences between the subnational entities, and between subnational entities and the central level. More specifically, these differences correlate with the size of the population, the size of the territory, and the economic character, resources and wealth, fiscal power and autonomy, electoral system, and party system of the subnational entity. They are the basis for de iure asymmetry. De iure, constitutional, or formal asymmetries are differences embedded in constitutional and legal processes, producing an unequal positioning of subnational entities under the law. More specifically, they correlate with differences in constitutional design and distribution of competences. De iure asymmetries emerge as a result of pressure from a subnational entity that is strong enough to extort the constitutionally entrenched accommodation of differences. Swenden, W. (2006). Federalism and regionalism in Western Europe, A comparative and thematic analysis. Basingstoke: Palgrave Macmillan. McGarry, J. (2011). Asymmetric Autonomy in the United Kingdom. In M. Weller, & K. Nobs (Eds.), Asymmetric Autonomy and the Settlement of Ethnic Conflicts Philadelphia, Oxford: University of Pennsylvania Press. Watts, R. L. (1999b). Comparing federal systems. Montreal: McGill-Queen’s University Press 2 ed. Burgess, M. (2006a). Comparative federalism, Theory and practice. London: Routledge. Burgess, M. (2009). The Paradox of Diversity – Asymmetrical Federalism in Comparative Perspective. In F. Palermo, C. Zwilling, & K. Kössler (Eds.), Asymmetries in Constitutional Law, Recent Developments in Federal and Regional Systems Bozen/Bolzan: Europäische Akademie Bozen/Accademia Europea

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while other examples include Belgium, Canada, Ethiopia, India, Iraq, Italy, Myanmar, Pakistan, South Sudan and the Sudan. These examples suggest that the importance of this subject has been continuously confirmed.24 Nevertheless, for the most part, this subject suffers from the lack of proper theoretical debate about the connection between emergency constitutionalism and multinationalism and their mutual effects. With this in mind, it is important to further specify the reasons for unfolding the debate. To begin with, multinationalism generates specific difficulties connected to constitutional asymmetry.25 As mentioned above, this can imply two mutually connected issues. Firstly, multinationalism may provoke specific types of crises and conflicts with regard to a constitutional system. These include crises and conflicts that question the actual existence of the system. Secondly, government responses to exceptional circumstances provoked by multinational causes may go far beyond the issues linked to the concept of emergency powers, including the option to change the blueprint of the state by introducing constitutional asymmetry. In particular,26 this might include the introduction of additional tiers of government. In addition, the effects of traditional exceptional circumstances largely differ from the exceptional nature of circumstances stimulated by multinationalism. In particular, unlike the effects induced by war, natural disasters, riots or economic crises, the effects of multinationalism do not have the force of abrupt events demanding temporary solutions, such as the suspension of the constitution, restoring the previous state of affairs, questioning the expansion of powers, or decision-making pertinent to emergency regimes.27 Consequently, further study is suggested, with more focus on how multinationalism and constitutional asymmetries interact with the concept of constitutional emergency regimes. A reasonable approach to tackle this issue could take two directions. One direction would be to explore the difficulties with multinationalism that lead to crises and conflicts, where constitutional asymmetry is seen as a relevant response. A second direction would be to elucidate the differences in effects among the traditional types of crises and the crises caused by multinationalism.

Bolzano. Popelier, P., & Lemmens, K. (2015a). The Constitution of Belgium, A Contextual Analysis. Oxford: Hart Publishing. Requejo, F. (2011). Decentralization and Federal and Regional Asymmetries in Comparative Politics. In F. Requejo, & K. J. Nagel (Eds.), Federalism Beyond Federations, Asymmetry and Processes of Resymmetrisation in Europe Farnham and Burlington: Ashgate. 24 See in this volume: Nikos Skoutaris and Elias Dinas, The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences. 25 Weller, M. (2011). Introduction. In M. Weller, & K. Nobbs (Eds.), Asymmetric Autonomy and the Settlement of Ethnic Conflicts Philadelphia and Oxford: University of Pennsylvania Press. McGarry, J. Ibid. Asymmetric Autonomy in the United Kingdom. In M. Weller, & K. Nobs (Eds.) Philadelphia, Oxford. 26 Máiz, R. (2004). Nation and deliberation. In R. Máiz, & F. Requejo (Eds.), Democracy, Nationalism and Multiculturalism London and New York: Frank Cass. 27 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar.

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3 Multinationalism: Generating Difficulties 3.1 Multinationalism and the Potential for Crises and Conflicts The first key point in this paper is that multinationalism appears to be an important factor in generating crises and conflicts. Despite the reported ramifications, reflected in the fact that diversity in national composition has played a key role in processes of fragmentation,28 sometimes even violently, multinationalism has not been recognized as a factor that may generate a state of emergency within a constitutional system. One possible explanation for this might be that most contemporary states are uncomfortable with the idea of national diversity within their territory and therefore refuse to acknowledge it by attempting to impose the identity of the majority group.29 A second possible explanation might be that multinationalism generates ‘the paradox of diversity’.30 This paradox emphasizes two forces, centripetal and centrifugal,31 meaning that multinationalism produces conditions for both the successful and unsuccessful accommodation of differences. As the outcomes are evenly matched, it may be that the odds in favour of success have been considered good enough not to need action to improve them. Nevertheless, two factors that are responsible for multinationalism entailing a potential for crises and conflicts have been revealed. Firstly, ‘the challenge of multinational democracies is “one polity, several demoi”’.32 This means that various groups need to be institutionalized to accomplish unity, while preserving their identities. Secondly, as a consequence, multinationalism poses challenges that are considerably different from those in mono-national systems.33 These factors can be best treated under two headings. To begin with, in the literature, the above-mentioned factors have been associated with the status of different groups within a constitutional system. Understood 28 Friedrich, C. J. (1968). Trends of federalism in theory and practice. New York, Washington, London: Praeger. 29 Requejo, F. (2001c). National pluralism and federalism. Four potential scenarios for Spanish plurinational democracy. Perspectives on European Politics and Society, 2(2), 305–327. 30 Burgess, M. (2009). The Paradox of Diversity – Asymmetrical Federalism in Comparative Perspective. In F. Palermo, C. Zwilling, & K. Kössler (Eds.), Asymmetries in Constitutional Law, Recent Developments in Federal and Regional Systems Bozen/Bolzano: Europäische Akademie Bozen/Accademia Europea Bolzano. 31 Ibid. 32 Requejo, F. (2004). Federalism and the quality of democracy in multinational contexts: present shortcomings and possible improvements. In U. M. Amoretti, & N. G. Bermeo (Eds.), Federalism and Territorial Cleavages Baltimore: Johns Hopkins University Press. 33 Requejo, F. (2001b). Federalism and the Quality of Democracy in Plurinational Contexts: Present Shortcomings and Possible Improvements. Paper prepared for the ECPR Joint Sessions of Workshops 2001 Workshop: Centres and Peripheries in a Changing World, 26. Requejo, F. (2001a). Federalism and national groups. International Social Science Journal, 53(167), 41–49.

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as a reflection of individual yardsticks, various groups appear to manifest a singularity by belonging to a distinct group,34 along with specific sentiments of territorial belonging.35 In other words, groups tend to preserve their individuality within layers of different belongings (including linguistic, religious, cultural and ethnic), especially within contemporary state structures.36 In systems such as that in Bosnia and Herzegovina, this is even more complicated due to dual and/or multiple identifications. In general, each of three constituent peoples in Bosnia and Herzegovina identifies differently. While the Serbs identify with the Republic of Srpska and neighbouring Serbia, the Croats in Bosnia and Herzegovina mainly identify with neighbouring Croatia. The Bosniaks choose to be regarded as Bosnians and/or Herzegovinians. Another, supporting example, are the inhabitants of Catalonia and Scotland, who choose to be regarded as such, but also as Spanish and British respectively, due to the need to accentuate flexibility of these groups within a system comprised of several groups and tiers of government.37 Equally important, different groups demand the accommodation of their identities, thereby producing intense relationships38 between tiers of government, both vertically and horizontally. One process seems to have influenced this. Various groups tirelessly challenge the mono-national notion of the system with their own constitutional agendas.39 In other words, sub-state nationalisms have surfaced with the intention of voicing their political representation based on distinct identity, continuously and even coercively. By way of illustration, after many unsuccessful attempts to (re-)establish an acceptable constitutional structure in Bosnia and Herzegovina

34 See, for instance: Gellner, E. (1993). Nations and nationalism. Oxford, Blackwell. In addition, see the number of terms Tierney uses to refer to groups in: Tierney, S. (2006). Constitutional law and national pluralism. Oxford, Oxford University Press. 35 Livingston, W. S. (1952). A Note on the Nature of Federalism. Political Science Quarterly, 67(1), 81. 36 For instance, Requejo states that members of these groups recognize themselves based on cultural patterns, the sense of historical distinctiveness, and their willingness to maintain their diverse positions within the political framework. Requejo, F. (2001a). Federalism and national groups. International Social Science Journal, 53(167), 41–49. https://doi.org/10.1111/1468-2451.00291. Also, the nationality of these groups may be expressed singularly where groups identify with the central-level nationality; others may identify with both the central-level nationality and their own designated group (whether this overlaps with an internal territorial division or not); and some may only identify with their own designated group (whether this overlaps with an internal territorial division or not, and regardless of their citizenship or central-level nationality). Keating, M. (2002) ‘Plurinational Democracy in a Post-Sovereign Order’. p. 351. 37 To that end, these groups “position themselves in a relational way to the state not as internal ‘minorities’, but rather as polities which are in fact comparable to the state”. Tierney, S. (2006). Constitutional law and national pluralism. Oxford, Oxford University Press. Also: Requejo, F. (2001a). Federalism and national groups. International Social Science Journal, 53(167), 41–49. 38 Watts, R. L., Relations, Q. s. U. I. o. I., & Studies, Q. s. U. S. o. P. (2008). Comparing Federal Systems. School of Policy Studies, Queen’s University. 39 Requejo, F. (2004). Federalism and the quality of democracy in multinational contexts: present shortcomings and possible improvements. In U. M. Amoretti, & N. G. Bermeo (Eds.), Federalism and Territorial Cleavages Baltimore: Johns Hopkins University Press.

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during the 1992–1995 period, the Dayton Proximity Talks took place at WrightPeterson Air Force Base in Ohio, between 1 and 12 November 1995. In an effort to bring the extreme conditions – in the form of armed conflict between different ethnic groups – to an end, the General Framework Agreement for Peace in Bosnia and Herzegovina40 was negotiated.41 The Accords put an end to conflict in Bosnia and Herzegovina and provided Annex IV42 – the Constitution of Bosnia and Herzegovina, which laid down federal foundations in the state-building process. However, Bosnia and Herzegovina is not the only example. In Spain, the fear of violence posed by the Basque Homeland and Freedom organization (Euskadi Ta Askatasuna-ETA) positioned it as an important actor at the time that the new Spanish Constitution was being drawn up. In addition, in 1977, more than one million people marched in the streets of Barcelona, demanding autonomous status for the region. This pressure resulted in the creation of ‘pre-autonomies’ for the Basque Country and Catalonia and inevitably led to the regionalization of Spain being embedded in the Spanish Constitution.43 A similar parallel can be drawn in relation to the role of the Irish Republican Army in Northern Ireland.44 Moreover, past referendums in Catalonia and Scotland, based on their diverse national character, have repeatedly revealed that there is a threat to the integrity and cohesion of the system. Actors who strived for renegotiation of the original balance45 in these two states provoked extreme tensions over an extended period of time. Belgium has also been in a permanent state of constitutional reform since 1970,46 attempting to find agreement for the peaceful coexistence of distinct groups,47 while Italy succumbed to pressures founded in social aspects of historical, ethnic and

40 It is also known as the Dayton Accords, Dayton Agreement, Dayton-Paris Agreement, etc. UN Doc. A/50/790 (1995) and S/1995/999 (1995) from 30/10/1995. 41 It was initialled in Ohio on 21 November and signed in Paris, France on 14 December 1995 in English and French by (at the time) the Republic of Bosnia & Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia and witnessed by the United States of America, the United Kingdom, the Federal Republic of Germany, the French Republic, the Russian Federations, and the European Union special negotiator. 42 It contains 11 annexes, Annex IV being the Constitution of Bosnia and Herzegovina. 43 Conversi, D. (2002). The Smooth Transition: Spain’s 1978, Constitution and the Nationalities Question. National Identities, 4(3). 44 McGarry, J. (2012a). The United Kingdom’s Experiment in Asymmetric Autonomy and Lessons Learned. In M. Seymour, & A.-G. Gagnon (Eds.), Multinational Federalism: Problems and Prospects Basingstoke and New York: Palgrave Macmillan. 45 Benz, A., & Broschek, J. (2013). Federal Dynamics: Introduction. In A. Benz, & J. Broschek (eds.), Federal Dynamics: Continuity, Change, & the Varieties of Federalism Oxford: Oxford University Press. 46 Popelier, P., & Lemmens, K. (2015a). The Constitution of Belgium, A Contextual Analysis. Oxford: Hart Publishing. 47 Ibid.

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linguistic differences48 and enabled a process of regionalization.49 One common feature of all these systems is the bringing of constitutional asymmetry into play in response to difficulties created by facets of multinationalism. In this regard, Cyprus proves to be a unique case. After ceasing to be a British colony in 1960, it was declared sovereign and independent. However, the Constitution of Cyprus was negotiated and drafted by Greece, Turkey and the United Kingdom for the purpose of accommodating the interests of different groups in the population by introducing bi-communalism.50 Given these points, it is apparent that the influence of multinationalism on constitutional systems raises two significant points. On the one hand, the examples above indicate that multinationalism triggers crises and/or produces specific types of emergencies that may threaten the survival of the system. On the other hand, multinationalism provides sustenance for constitutional asymmetries, meaning that it instigates asymmetrical constitutional solutions for the purpose of accommodating diversity.51

3.2 A Reply to Multinationalism: Constitutional Asymmetry The second key point in this paper is that government responses to multinationalism involve a whole set of instruments and mechanisms that go beyond emergency powers. Moreover, it seems that the emergency powers envisaged in the expansion of executive powers have little purpose in this relationship. Certainly, one could argue that some aspects of crises and conflicts connected to multinationalism may be addressed through emergency powers. Nevertheless, it is more likely that governments will take recourse to the accommodation of multinationalism by using constitutional asymmetry.52 Contemporary federal theory provides a basis for this claim through three points: firstly, an overwhelming number of cases show that the predicaments giving rise to a crisis in the constitutional system usually originate in multinational systems53 ; 48 Bartole, S. (2012). Internal Ordering in the Unitary State. In M. Rosenfeld, & A. s. Saj´ o (Eds.), The Oxford handbook of comparative constitutional law Oxford: Oxford University Press. 49 Rolla, G. The development of asymmetric regionalism and the principle of autonomy in the new constitutional systems: A comparative approach. http://www.crdc.unige.it/docs/articles/rolla6.pdf. Accessed 28/09/2016 2016. Also: Palermo, F. (2015). Autonomy and Asymmetry in the Italian Legal System: The Case of the Autonomous Province of Bolzano/Bolzen. In G. Pola (Ed.), Principles and Practices of Fiscal Autonomy, Experiences, Debates and Prospects: Ashgate. 50 See in this volume: Nasia Hadjigeorgiou and Nikolas Kyriakou, Entrenching hegemony in Cyprus: The doctrine of necessity and the principle of bicommunality. 51 Piattoni, S. (2010). The Theory of Multi-level Governance: Conceptual, Empirical, and Normative Challenges: Conceptual, Empirical, and Normative Challenges. OUP Oxford. 52 Tierney, S. (2006). Constitutional law and national pluralism. Oxford, Oxford University Press. 53 McGarry, J., & O’Leary, B. (2012). Territorial pluralism: its forms, flaws, and virtues. In F. Requejo, & M. C. Badia (Eds.), Federalism, Plurinationality and Democratic Constitutionalism: Theory and Cases Abingdon and New York: Routledge.

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secondly, multinationalism often features asymmetrical forms of decentralization54 ; and thirdly, multinationalism triggers fragmentation.55 Over time, differences produce either a divergent constitutional position or at least the will for a divergent constitutional position of the specific subnational entities. As discussed above, when various groups have sufficient space to wrap their specificity within one particular polity, they necessarily do it through federal principles.56 This implies that their endeavours involve linking multinationalism to multiple tiers of government. In other words, as various groups focus on a subnational entity to express their identity, new tiers of government emerge. This obviously leads to alterations in the structure of the state. At the same time, it involves constitutional changes which reflect the impact of multinationalism on a state system.57 Consequently, when tiers of government are based on distinctive identities, we can consider the system to be prone to asymmetrical constitutional arrangements.58 This is the case in systems in which at least one part has the benefit of autonomy, but another part or parts have less, or have no autonomy at all.59 Finally, studies in constitutional asymmetries confirm that such asymmetry results from the challenges of diversity, as multinationalism may demand constitutional design beyond the equal distribution of governing capacities.60 This relationship may be explained by the fact that multinational systems rely on asymmetric solutions to preserve the unity of the system, while addressing diversity. This potentially produces diverse effects for the constitutional system. The evidence for this can be clearly seen in several constitutional systems that have reshaped their internal structure in response to multinationalism.61 In Bosnia and Herzegovina, the Dayton Constitution settled territorial claims on the basis of

54 Swenden, W. (2006). Federalism and regionalism in Western Europe, A comparative and thematic analysis. Basingstoke: Palgrave Macmillan. McGarry, J. (2007). Asymmetry in Federations, Federacies and Unitary States. Ethnopolitics, 6(1), 105–116. 55 Burgess, M. (2009). The Paradox of Diversity – Asymmetrical Federalism in Comparative Perspective. In F. Palermo, C. Zwilling, & K. Kössler (Eds.), Asymmetries in Constitutional Law, Recent Developments in Federal and Regional Systems Bozen/Bolzan: Europäische Akademie Bozen/Accademia Europea Bolzano. 56 Basta Fleiner, L. R., & Gaudreault-DesBiens, J.-F. (2013). Federalism and autonomy. In M. Tushnet, T. Fleiner, & C. Saunders (Eds.), Routledge Handbook of Constitutional Law London and New York: Routledge. 57 Requejo, F. (2001c). National pluralism and federalism. Four potential scenarios for Spanish plurinational democracy. Perspectives on European Politics and Society, 2(2), 305–327. https://doi. org/10.1080/1570585018458764. 58 Fossas, E. (2001). National Plurality and Equality. In F. Requejo (Ed.), Democracy and National Pluralism London and New York: Routledge. 59 McGarry, J. (2007). Asymmetry in Federations, Federacies and Unitary States. Ethnopolitics, 6(1), 105–116. https://doi.org/10.1080/17449050701232983. 60 Agranoff, R. (1999). Accommodating diversity: asymmetry in federal states. Baden-Baden: Nomos. 61 McGarry, J., & O’Leary, B. (2012). Territorial pluralism: its forms, flaws, and virtues. In F. Requejo, & M. C. Badia (Eds.), Federalism, Plurinationality and Democratic Constitutionalism: Theory and Cases Abingdon and New York: Routledge.

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ethnic-national communities designated as constituent peoples.62 The transformation into a federal state meant a split of the unitary state into a multitiered territorial structure that overlapped with three ethnic-national communities, of Bosniaks, Croats and Serbs, all with distinctive historical, national, ethnic and religious backgrounds.63 In particular, constitutional provisions in Bosnia and Herzegovina delineate the system into two entities and one district. One subnational entity, the Federation of Bosnia and Herzegovina, is itself a federation of ten cantons, with each populated predominantly by either Bosniaks or Croats, and some ‘mixed cantons’. The other, the Republic of Srpska, is a unitary entity. At the same time, three ethnic-national communities intervene in the territorial design.64 A linguistic split is recognized in the Constitution of Bosnia and Herzegovina, but it is highly disputed by linguists, who claim that Bosnian, Croatian and Serbian are the same languages. Asymmetry can be traced not only through the specific status of the subnational entities but also in the distribution of competences and the fiscal autonomy of particular entities. For example, although the central-level constitution in Bosnia and Herzegovina enumerates competences assigned to the central-level and subnational entities, the territorial and institutional structure embedded in the constitutions of the subnational entity means the distribution of competences has been prescribed and exercised differently. More specifically, the local competences differ between the Federation of Bosnia and Herzegovina and the Republic of Srpska, and even among the cantons in the Federation in relation to aspects such as communal services and material costs of schools.65 Similarly, it is apparent that there are differences among two entities in setting rates or/and bases for specific types of major taxation powers. As the previous sections suggest, Bosnia and Herzegovina is not the only example. In Belgium, as a response to disagreements between the communities, a sequence of state reforms introduced dyadic federalism based on two large but separate linguistic communities, the Flemish and the French, and the small German-speaking community.66 The usual point of reference here is the mid-twentieth century, when the onset

62 Sahadži´ c,

M. (2011). Priroda politiˇckog sistema u Bosni i Hercegovini. In D. Banovi´c, & S. Gavri´c (Eds.), Država, politika i društvo u Bosni i Hercegovini – Analiza postdejtonskog politiˇckog sistema Sarajevo: University Press, Magistrat izdanja. 63 Seizovi´ c, Z. (2014a). Constituent Peoples and Constitutional Changes. Sarajevo: Dobra knjiga. Also: Seizovi´c, Z. (2014b). Politiˇcko pravni uzroci nacionalne mobilizacije i dekonstitucionalizacije u Bosni i Hercegovini. Paradigma Bosna, juˇce, danas, sutra Sarajevo: Dobra knjiga. 64 Sahadži´ c, M. (2013). Ustav Hercegovaˇcko-Neretvanskog kantona o ljudskim pravima i slobodama i “Ostalim”: o postuliranju krepke (ne)konstitutivne (ne)ravnoteže nauštrb “Ostalih” i ustavnopravnom perverzitetu u Hercegovaˇcko-Neretvanskom kantonu. Sarajevo: Centar za politiˇcke studije. 65 Basari´ c, H. (2015) ‘Pregled finansija lokalne samouprave u BiH’ Z. Ivanˇci´c. Sarajevo. 66 Peeters, P. (2007). Multinational federations: reflections on the Belgian federal state. In M. Burgess, & J. Pinder (Eds.), Multiantional Federations London: Routledge. Dumont, H., Lagasse, N., Van Der Hulst, M., & Van Drooghenbroeck, S. (2005). Kingdom of Belgium. In A. Majeed, R. L. Watts, & D. M. Brown (Eds.), Distribution of Powers and Responsibilities in Federal Countries Montreal & Kingston, London and Ithaca: McGill-Queen’s University Press.

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of economic development in Flanders initiated friction between the communities and regions, which made more autonomy claims.67 Italy has also enabled regionalization, approving asymmetrical status for some of its regions for the purpose of accommodating cultural diversity on a territorial basis.68 This meant the establishment of five ‘special regions’. In addition to Sardinia and Sicily, the Aosta Valley, Friuli-Venezia Giulia and South Tyrol were all established based on recognition of differences closely tied to territorial claims.69 These differences originated from economic and social aspects tied to the historical, ethnic and linguistic distinctions in these subnational entities.70 In Spain, where the use of the term ‘nation’ refers to four main identities, Spanish, Basque, Catalan and Galician,71 the later three identities constantly compete with the Spanish national identity. Their special status and autonomy claims are based on their historical status as nationalities and are grounded in special provisions,72 mainly with regards to language and foral civil rights. In the United Kingdom, the three parts, Northern Ireland, Scotland and Wales, have based their autonomy claims around their historical status and a national distinction.73 Since 1998, they have been granted different degrees of autonomy.74 They have also

67 Popelier, P., & Lemmens, K. (2015b). The Constitution of Belgium. a contextual analysis. Oxford, Hart Publishing. 68 Basta Fleiner, L. R., & Gaudreault-DesBiens, J.-F. (2013). Federalism and autonomy. In M. Tushnet, T. Fleiner, & C. Saunders (Eds.), Routledge Handbook of Constitutional Law London and New York: Routledge. 69 Rolla, G. The development of asymmetric regionalism and the principle of autonomy in the new constitutional systems: A comparative approach. http://www.crdc.unige.it/docs/articles/rolla6.pdf. Accessed 28/09/2016 2016. Also: Palermo, F. (2015). Autonomy and Asymmetry in the Italian Legal System: The Case of the Autonomous Province of Bolzano/Bolzen. In G. Pola (Ed.), Principles and Practices of Fiscal Autonomy, Experiences, Debates and Prospects: Ashgate. 70 Bartole, S. (2012). Internal Ordering in the Unitary State. In M. Rosenfeld, & A. s. Saj´ o (Eds.), The Oxford handbook of comparative constitutional law Oxford: Oxford University Press. 71 Requejo, F. (2001d). Political liberalism in multinational states: the legitimacy of plural and asymmetrical federalism. In A.-G. Gagnon, & J. Tully (Eds.), Multinational Democracies New York: Cambridge University Press. See also: Moreno, L. (1999). Asymmetry in Spain: Federalism in Making? In R. Agranoff (Ed.), Accommodating Diversity: Asymmetry in Federal States BadenBaden: Nomos Verlagsgesellschaft. Agranoff, R. (1994). Asymmetrical and Symmetrical Federalism in Spain, An Examination of Intergovernmental Policy. In B. de Villiers (Ed.), Evaluating Federal Systems Dordrecht, Boston and London: Juta & Company. Moreno, L. Ibid. Ethnoterritorial Concurrence and Imperfect Federalism in Spain. In B. De Villiers (Ed.). 72 Keating, M. (2001). So many nations, so few states: territory and nationalism in the global era. In A.-G. Gagnon, & J. Tully (Eds.), Multinational Democracies Cambridge: Cambridge University Press. 73 McGarry, J. (2007). Asymmetry in Federations, Federacies and Unitary States. Ethnopolitics, 6(1), 105–116. 74 McGarry, J. (2012b). The United Kingdom’s Experiment in Asymmetric Autonomy and the Lessons Learned. In M. Seymore, & A.-G. Gagnon (Eds.), Multinational Federalism: Problems and Prospects: Palgrave Macmillan.

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been recognized as historical nationalities, with their own languages, separate Church and even different legal systems.75 This combination of examples provides support for the conceptual premise that it is usually pressure from multinationalism that requires an emergent response in which states reshape their constitutional system76 by introducing asymmetrical constitutional solutions. Correspondingly, these pressures sometimes take the form of armed conflict, brisk but continuous autonomy claims, or more forceful coercion and violent demands. With these points in mind, there are two key aspects to confirm here. Firstly, what both types of exceptional circumstances, whether traditional or multinational, have in common, is an element of necessity.77 Secondly, although some aspects of crises and conflicts originating from multinationalism bear resemblance to traditional constitutional emergencies, they do not provoke the traditional emergency responses. Given this, it is of particular concern to address the effects of multinationalism with regard to the traditional responses of constitutional emergency regimes.

4 Wrangling Over the Effects of Multinationalism Thus far, the paper has argued that multinationalism provokes new types of crises for constitutional systems and that government responses need not invoke emergency powers but foster constitutional asymmetries. This position challenges the traditional discussion about emergency powers.78 To develop a full picture of the key issues, additional exploration will be needed to tackle the effects on multinationalism when it comes to the exceptional nature of circumstances. To begin with, the scholarship addressing constitutional emergency regimes indicates that exceptional circumstances usually occur abruptly.79 Moreover, the exceptional nature of circumstances stands in opposition to the concept of normalcy, assuming that emergency is the exception and normalcy the rule.80 In contrast, 75 Requejo, F. (2001d). Political liberalism in multinational states: the legitimacy of plural and asymmetrical federalism. In A.-G. Gagnon, & J. Tully (Eds.), Multinational Democracies New York: Cambridge University Press. 76 McGarry, J., & O’Leary, B. (2012). Territorial pluralism: its forms, flaws, and virtues. In F. Requejo, & M. C. Badia (Eds.), Federalism, Plurinationality and Democratic Constitutionalism: Theory and Cases Abingdon and New York: Routledge. 77 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar. 78 See in this volume: Ming-Sung Kuo, From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization. 79 Scheuerman, W. E. (Ed.) (1996). The Rule of Law under Siege: Selected Essays of Franz L. Neuermann and Otto Kirchheimer (Weimar and Now: German Cultural Criticism) (Berkley, Los Angeles, London: University of California Press). 80 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar.

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as the discussion above has suggested, the general pattern of crises and conflicts originating from multinationalism does not necessarily take the same form. The evidence presented thus far supports the idea that multinationalism provokes exceptional circumstances incrementally, slowly bringing the system to the point at which a government response is necessary. At the same time, government responses to multinationalism through the creation of constitutional asymmetries exhibits different dynamics. Notably, the entire process may be perceived as a transition from bargaining about changes within the constitutional system to establishing a new type of normalcy. The discussion above is closely related to a second type of effect. The scholarship suggests that traditional emergency regimes aim to resolve the threat and return the constitutional system to its previous state.81 However, as we have seen, constitutional asymmetry generated by multinationalism can be used to resolve a crisis or emergency, but in the process it limits the possibility of restoring the previous state of affairs in the constitutional system. This is because the use of constitutional asymmetries presupposes the accommodation of differences. In turn, the accommodation of differences implies lasting changes to the constitutional system. This means that once they are established, constitutional asymmetries will need to be renegotiated in order to be eliminated. In other words, returning the constitutional system to its previous state actually means transforming the system into a new type of normalcy, as the previous normalcy no longer exists. In a similar vein, a third effect is connected to the previous two. The theory of constitutional emergency regimes points out that one of the characteristics of the provisions adopted during the time of exceptional circumstances is their temporal application.82 This is because the government is not allowed to make any permanent changes to the constitutional system by using emergency powers.83 In contrast, constitutional asymmetries originating from multinationalism will act as lasting solutions. This is because a crisis or conflict based on multinationalism will culminate in an inevitable redesign of the state in favour of the asymmetrical model. From experience, these are mainly long-term solutions. Certainly, they may entail transitional solutions, but they gravitate towards durability. A fourth effect of emergency powers is the partial or complete suspension of the constitution.84 In this respect, exceptional circumstances arising from multinationalism have a different type of effect. In such circumstances, there is an insistence that the constitutional provisions accommodate or match the demands, causing an emergency and constitutional asymmetry. In addition, the circumstances have no effect 81 Ferejohn, J., & Pasquino, P. (2004). The law of the exception: A typology of emergency powers. International Journal of Constitutional Law, 2(2). 82 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar. 83 Ferejohn, J., & Pasquino, P. (2004). The law of the exception: A typology of emergency powers. International Journal of Constitutional Law, 2(2). 84 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar.

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on individual rights and freedoms as they revolve around group rights. Moreover, the protection of group rights is abundantly complex in multinational systems.85 Furthermore, in response to exceptional circumstances, traditional constitutional emergency regimes emphasize the importance of the expansion of executive powers. In other words, an emergency usually implies the concentration of powers in the hands of the executive branch.86 In contrast, in multinational systems that trigger the application of asymmetrical features, there is no effect on the separation of powers. Instead, the effect occurs in the splitting of powers between various tiers of government, whether between the central-level and subnational entity or among several subnational entities themselves. If different national communities claim political autonomy on territorially based differences, constitutional asymmetries presume changes in the territorial formation based on differences in identity, dividing powers territorially to allow the expression of their distinct identity.87 Finally, in traditional emergency regimes, it is important to determine who has the power to declare the beginning and the end of the emergency, who decides on the limits of permissible responses, and who exercises the emergency powers, among other issues.88 By the same token, this is closely linked to the potential abuse and misuse of emergency powers. For the most part, these aspects seem to be closely linked to Carl Schmitt’s definition of sovereignty, which states that the sovereign is the one who decides on the state of exception.89 Nevertheless, in terms of multinationalism as a potential basis for constitutional crises and emergencies, two key points arise. Firstly, contemporary multinational states reveal vibrant processes, resulting in a constant search for autonomy and the existence of counterbalancing tendencies.90 Linked with territorially based differences, particular political groups are increasingly likely to establish their own political authority in a given territory,91 which competes with the traditional notion of sovereignty.92 This can be observed, for example, in the various states mentioned in this paper. Secondly, in emergencies 85 Bermeo, N. G. (2004). Conclusion: The Merits of Federalism. In U. M. Amoretti, & N. G. Bermeo (Eds.), Federalism and Territorial Cleavages: Johns Hopkins University Press. 86 Gross, O. (2011). Constitutions and emergency regimes. In T. Ginsburg, & R. Dixon (Eds.), Comparative constitutional law Cheltenham and Northampton: Edward Elgar. 87 Similar in: Burgess, M. (2006b). Comparative federalism. theory and practice. London, Routledge. 88 Frankenberg, G. (2012). Democracy. In M. Rosenfeld, & A. s. Saj´ o (Eds.), The Oxford Handbook of Comparative Constitutional Law Oxford: Oxford University Press. Bjørnskov, C., & Voigt, S. (2016) ‘The Architecture of Emergency Constitutions’. 16/03/2016. Available at: https://papers. ssrn.com/sol3/papers.cfm?abstract_id=2798558. 89 Schmitt, C. (2005). Political Theology, Four Chapters on the Concept of Sovereignty. Chicago: University of Chicago Press. 90 Hooghe, L., & Marks, G. (2012). Types of Multi-level Governance In H. Enderlein, S. Wälti, & M. Zürn (Eds.), Handbook on Multi-Level Governance: Edward Elgar Publishing. 91 Stepan, A. (2004). Towards a New Comparative Politics of Federalism, Multinationalism, and Democracy: Beyond Rikerian Federalism. In E. L. Gibson (Ed.), Federalism and Democracy in Latin America Baltimore, Md: Johns Hopkins University Press. 92 Sahadži´ c, M. (2017). Constitutional asymmetry vs. sovereignty and self-determination. suigeneris (50) .

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caused by multinationalism, all sides will have the leverage to decide and/or influence decision-making.93 In summary, the previous sections have reviewed several key effects generated by the exceptional nature of circumstances. The effects of extraordinary circumstances arising due to multinationalism were discussed and compared to the effects of traditional constitutional emergency regimes. It has been shown that the former diverges from the latter. Ultimately, this implies a need to respond to these new theoretical challenges by readdressing the complex dynamics behind exceptional circumstances and adjusting the theoretical framework to better fit contemporary practice.

5 Conclusions This paper set out to explore the difficulties with multinationalism that lead to crises and conflicts; and the variation in effects and responses between traditional types of crises and the crises caused by multinationalism. To overcome impediments associated with the traditional concept, the paper emphasized the role of constitutional asymmetries in addressing extraordinary circumstances. This was further assessed by examining the effects of multinationalism constitutional systems. In addition, while Bosnia and Herzegovina served as the starting point and a clear case in support of the theoretical discourse, other constitutional systems were also shown to support the key points. The most important finding to emerge from this paper is that a shift in the understanding of constitutional emergency regimes is required. The principal theoretical implication of this paper is that contemporary constitutional emergencies are not only bound to armed conflict, rebellion, economic crisis and terrorism. Another implication of this paper is that the emergency response, in the light of multinationalism and constitutional asymmetry, should emphasize processes of incremental accommodation and not instantaneous or ad interim strike. Finally, the generalizability of the debate may be subject to certain limitations and objections. However, these are mainly due to insufficient elaboration of the issues to date. Under these circumstances, further study, with more focus on the issues raised, would be worthwhile.

93 Keating,

M. (2002) ‘Plurinational Democracy in a Post-Sovereign Order’. p. 351.

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References Ackerman B (2004) The emergency constitution. Yale Law J 113 Agranoff R (1994) Asymmetrical and symmetrical federalism in spain, an examination of intergovernmental policy. In de Villiers B (Ed) Evaluating federal systems. Juta & Company, Dordrecht, Boston and London Agranoff R (1999) Accommodating diversity: asymmetry in federal states. Nomos, Baden-Baden Bartole S (2012) Internal ordering in the unitary state. In: Rosenfeld M, Sajó AS (eds) The Oxford handbook of comparative constitutional law. Oxford University Press, Oxford Basari´c H (2015) Pregled finansija lokalne samouprave u BiH. Z. Ivanˇci´c, Sarajevo Basta Fleiner LR, Gaudreault-DesBiens J-F (2013) Federalism and autonomy. In: Tushnet M, Fleiner T, Saunders C (eds) Routledge handbook of constitutional law. Routledge, London and New York Benz A, Broschek J (2013) Federal dynamics: introduction. In: Benz A Broschek J (eds) Federal dynamics: continuity, change, and the varieties of federalism. Oxford University Press, Oxford Bermeo NG (2004) Conclusion: the merits of federalism. In: Amoretti UM, Bermeo NG (eds) Federalism and territorial cleavages. Johns Hopkins University Press, Baltimore Bjørnskov C, Voigt S (2016) The architecture of emergency constitutions. 16/03/2016. https://pap ers.ssrn.com/sol3/papers.cfm?abstract_id=2798558 Blindenbacher R, Watts R (2002) Federalism in a changing world—a conceptual framework for the conference. In: Blindenbacher R, Koller A (eds) Federalism in a changing world, learning from each other, scientific background, proceedings and plenary speeches of the international conference on federalism. McGill’s Queen’s University Press, Montreal, Kingston, London, and Ithaca Burgess M (2006a) Comparative federalism, theory and practice. Routledge, London Burgess M (2009) The paradox of diversity–asymmetrical federalism in comparative perspective. In: Palermo F, Zwilling C, Kössler K (eds) Asymmetries in constitutional law, recent developments in federal and regional systems. Europäische Akademie Bozen/Accademia Europea Bolzano, Bozen/Bolzan Conversi D (2002) The smooth transition: Spain’s 1978, constitution and the nationalities question. Nat Identit 4(3) Delmartino F (2009) New dimensions of asymmetry in (quasi-) federal states and in the European Union. In: Palermo F, Zwilling C, Kössler K (eds) Asymmetries in constitutional law, recent developments in federal and regional systems. Europäische Akademie Bozen/Accademia Europea Bolzano, Bozen/Bolzano Dumont H, Lagasse N, Van Der Hulst M, Van Drooghenbroeck S (2005) Kingdom of Belgium. In: Majeed A, Watts RL, Brown DM (eds) Distribution of powers and responsibilities in federal countries. McGill-Queen’s University Press, Montreal, Kingston, London and Ithaca Dyzenhaus D (2012) States of emergency. In: Rosenfeld M, Sajó AS (eds) The Oxford handbook of comparative constitutional law. Oxford University Press, Oxford Elazar DJ (2006) Exploring federalism. University of Alabama Press, Tuscaloosa Ferejohn J, Pasquino P (2004) The law of the exception: a typology of emergency powers. Int J Constitut Law 2(2) Finn JE (1990) Constitutions in crisis: political violence and the rule of law. Oxford University Press, New York, Oxford Fossas E (2001) National plurality and equality. In Requejo F (ed) Democracy and national pluralism. Routledge, London and New York Frankenberg G (2012) Democracy. In: Rosenfeld M, Sajó AS (eds) The Oxford handbook of comparative constitutional law. Oxford University Press, Oxford Frenkel M (1986/2007) Federal theory. Centre for Research on Federal Financial Relations and The Australian National University, Canberra, Zuchwil/Switzerland Friedrich CJ (1968) Trends of federalism in theory and practice. Praeger, New York, Washington, and London Gellner E (1993) Nations and nationalism. Blackwell, Oxford

The Constitutionalism of Emergency …

265

Gross O (2011) Constitutions and emergency regimes. In: Ginsburg T, Dixon R (eds) Comparative constitutional law. Edward Elgar, Cheltenham and Northampton Gross O, Aoláin FN (2006) Law in times of crisis: emergency powers in theory and practice. Cambridge University Press, Cambridge Hooghe L, Marks G (2012) Types of multi-level governance. In: Enderlein H, Wälti S, Zürn M (eds) Handbook on multi-level governance. Edward Elgar Publishing, Cheltenham Hueglin TO (2013) Comparing federalism: variations or distinct models? In: Benz A, Broschek J (eds) Federal dynamics: continuity, change, and the varieties of federalism. Oxford University Press, Oxford Keating M (2001) So many nations, so few states: territory and nationalism in the global era. In: Gagnon A-G, Tully J (eds) Multinational democracies. Cambridge University Press, Cambridge Keating M (2002) Plurinational democracy in a post-sovereign order. North Irel Leg Quart 53 (4) Livingston WS (1952) A note on the nature of federalism. Polit Sci Quart 67(1) Máiz R (2004) Nation and deliberation. In: Máiz R, Requejo F (eds) Democracy, nationalism and multiculturalism. Frank Cass, London and New York McGarry J (2007) Asymmetry in federations, federacies and unitary states. Ethnopolitics 6(1) McGarry J (2011) Asymmetric autonomy in the United Kingdom. In: Weller M, Nobs K (eds) Asymmetric autonomy and the settlement of ethnic conflicts. University of Pennsylvania Press, Philadelphia, Oxford McGarry J (2012a). The United Kingdom’s experiment in asymmetric autonomy and lessons learned. In: Seymour M, Gagnon A-G (eds) Multinational federalism: problems and prospects. Palgrave Macmillan, Basingstoke and New York McGarry J (2012b) The United Kingdom’s experiment in asymmetric autonomy and the lessons learned. In: Seymore M, Gagnon A-G (eds) Multinational federalism: problems and prospects. Palgrave Macmillan, Basingstoke and New York McGarry J, O’Leary B (2012) Territorial pluralism: its forms, flaws, and virtues. In: Requejo F, Badia MC (eds) Federalism, plurinationality and democratic constitutionalism: theory and cases. Routledge, Abingdon and New York Moreno L (1994) Ethnoterritorial concurrence and imperfect federalism in Spain. In: De Villiers B (ed) Evaluating federal systems. Juta & Company, Dordrecht, Boston and London Moreno L (1999) Asymmetry in Spain: federalism in Making? In: Agranoff R (ed) Accommodating diversity: asymmetry in federal states. Nomos Verlagsgesellschaft, Baden-Baden Obinger H, Leibfried S, Castles FG (2005) Federalism and the welfare state: new world and European experiences. Cambridge University Press, New York Palermo F (2009) Asymmetries in constitutional law—an introduction. In: Palermo F, Zwilling C, Kössler K (eds) Asymmetries in constitutional law, recent developments in federal and regional systems. Europäische Akademie Bozen/Accademia Europea Bolzano, Bozen/Bolzan Palermo F (2015) Autonomy and asymmetry in the Italian legal system: the case of the autonomous Province of Bolzano/Bolzen. In: Pola G (Ed) Principles and practices of fiscal autonomy, experiences, debates and prospects. Ashgate, Farnham and Burlington Peeters P (2007) Multinational federations: reflections on the Belgian federal state. In: Burgess M, Pinder J (eds) Multiantional federations. Routledge, London Piattoni S (2010) The theory of multi-level governance: conceptual, empirical, and normative challenges: conceptual, empirical, and normative challenges. Oxford University Press Oxford Popelier P (2014) Subnational multilevel constitutionalism. Perspectives on federalism 6(2):1–23 Popelier P, Lemmens K (2015a) The constitution of Belgium, a contextual analysis. Hart Publishing, Oxford Requejo F (2001a) Federalism and national groups. Int Soc Sci J 53(167) Requejo F (2001b) Federalism and the quality of democracy in plurinational contexts: present shortcomings and possible improvements. Paper prepared for the ECPR joint sessions of workshops 2001 workshop: centres and peripheries in a changing world, 26 Requejo F (2001c) National pluralism and federalism. Four potential scenarios for Spanish plurinational democracy. Perspect Europ Polit Soc 2(2)

266

M. Sahadži´c

Requejo F (2001d) Political liberalism in multinational states: the legitimacy of plural and asymmetrical federalism. In: Gagnon A-G, Tully J (eds) Multinational democracies. Cambridge University Press, New York Requejo F (2004) Federalism and the quality of democracy in multinational contexts: present shortcomings and possible improvements. In: Amoretti UM, Bermeo NG (eds) Federalism and territorial cleavages. Johns Hopkins University Press, Baltimore Requejo F (2011) Decentralization and federal and regional asymmetries in comparative politics. In: Requejo F, Nagel KJ (eds) Federalism beyond federations, asymmetry and processes of resymmetrisation in Europe. Ashgate, Farnham and Burlington Rolla G (2016) The development of asymmetric regionalism and the principle of autonomy in the new constitutional systems: a comparative approach. http://www.crdc.unige.it/docs/articles/rol la6.pdf. Accessed 28 Sept 2016 Rossiter C (2009) Constitutional dictatorship, crisis government in the modern democracies. Transaction Publishers, New Brunswick and London Sahadži´c M (2011) Priroda politiˇckog sistema u Bosni i Hercegovini. In: Banovi´c D, Gavri´c S (eds) Država, politika i društvo u Bosni i Hercegovini – Analiza postdejtonskog politiˇckog sistema. University Press, Magistrat izdanja, Sarajevo Sahadži´c M (2013) Ustav Hercegovaˇcko-Neretvanskog kantona o ljudskim pravima i slobodama i “Ostalim”: o postuliranju krepke (ne)konstitutivne (ne)ravnoteže nauštrb “Ostalih” i ustavnopravnom perverzitetu u Hercegovaˇcko-Neretvanskom kantonu. Centar za politiˇcke studije, Sarajevo Sahadži´c M (2017) Constitutional asymmetry vs. sovereignty and self-determination. sui-generis (50) Scheuerman WE (ed) (1996) The rule of law under Siege: selected essays of Franz L. Neuermann and Otto Kirchheimer (Weimar and Now: German Cultural Criticism). University of California Press, Berkley, Los Angeles, and London Schmitt C (2005) Political theology, four chapters on the concept of sovereignty. University of Chicago Press, Chicago Seizovi´c Z (2014a) Constituent peoples and constitutional changes. Dobra knjiga, Sarajevo Seizovi´c Z (2014b) Politiˇcko pravni uzroci nacionalne mobilizacije i dekonstitucionalizacije u Bosni i Hercegovini. Paradigma Bosna, juˇce, danas, sutra. Dobra knjiga, Sarajevo Stepan A (2004) Towards a new comparative politics of federalism, multinationalism, and democracy: beyond Rikerian federalism. In: Gibson EL (ed) Federalism and democracy in Latin America. Johns Hopkins University Press, Baltimore Swenden W (2006) Federalism and regionalism in Western Europe, a comparative and thematic analysis. Palgrave Macmillan, Basingstoke Tarlton CD (1965) Symmetry and asymmetry as elements of federalism: a theoretical speculation. J Polit 27(4) Tierney S (2006) Constitutional law and national pluralism. Oxford University Press, Oxford Watts R (1999a) The theoretical and practical implications of asymmetrical federalism. In Agranoff R (ed) Accommodating diversity: asymmetry in federal states. Nomos Verlagsgesellshaft, BadenBaden Watts RL (1999b) Comparing federal systems, 2 edn. McGill-Queen’s University Press, Montreal Watts RL, Relations QsUIoI, Studies QsUSoP (2008) Comparing federal systems. School of Policy Studies Queen’s University, Montreal Weller M (2011) Introduction. In: Weller M, Nobbs K (eds) Asymmetric autonomy and the settlement of ethnic conflicts. University of Pennsylvania Press, Philadelphia and Oxford

The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences Elias Dinas and Nikos Skoutaris

Abstract The quest for peace, democracy and political stability has led a number of divided societies in Europe to opt for arrangements that entail segmental autonomy in order to accommodate ethnic diversity, avoid secession or even civil war. Although there are various institutional devices through which this idea can be implemented, in practice, one of its typical manifestations involves the devolution of legislative competences to the regional level. This process is in turn accompanied by the establishment of subnational representative institutions: governments, parliaments and elections. Although, such decentralization of political authority aims at accommodating the centrifugal tendencies existing in a given plurinational State, it may also have long-term unintended consequences. By focusing on Spain, the paper examines how subnational elections strengthen subnational identity, disseminate views in favour of further decentralization and may potentially cultivate secessionist preferences.

1 Introduction Since the Peace of Westphalia in 1648, Europe witnessed the gradual dissolution of the plurinational Empires and the genesis of the sovereign nation-States. This historical and political trend that has favoured the building of mono-national over plurinational States in the old continent reached its peak in the aftermath of the fall of the ‘Iron Curtain’ and the subsequent dissolution of Soviet Union, Yugoslavia and Czechoslovakia. Still, there is a significant number of European multinational States whose institutional structures aim at accommodating ethno-linguistic diversity such as Belgium, Bosnia, North Macedonia and Spain. E. Dinas Political and Social Sciences, European University Institute, Florence, Italy e-mail: [email protected] N. Skoutaris (B) School of Law, University of East Anglia, Norwich, UK e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_17

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The quest for peace, democracy and political stability has led those divided societies in Europe to opt for arrangements that entail segmental autonomy in order to accommodate ethnic diversity, avoid secession or even civil war. Although there are various institutional devices through which this idea can be implemented, in practice, one of its typical manifestations involves the devolution of legislative competences to the regional level. This process is in turn accompanied by the establishment of subnational representative institutions: governments and parliaments. Although such decentralization of political authority aims at accommodating the centrifugal tendencies existing in a given plurinational state, it may have long-term unintended consequences. Instead of bridging the cleavages of a divided society and alleviating secessionist demands, it may actually exacerbate them. Representative institutions at any level of aggregation require elections, which in turn invite party competition. Such institutions do not initially enjoy redistributive competences. Consequently, parties cannot compete under conventional dimensions of political conflict. As a result, they opt for priming an identity dimension, which may gradually feed nationalist claims. This practice is further facilitated by the second-order character of these elections, which provides incentives to political actors for more polarized stances. This self-reinforcing practice institutionalises secessionist demands and transfers the identity conflict into national party competition. In order to test our theory, we focus on Spain. After analysing its system of territorial autonomy, we examine how subnational elections strengthen subnational identity, disseminate views in favour of further decentralization and may potentially cultivate secessionist preferences.

2 Territorial Autonomy in Spain While in cases such as Kosovo, South Sudan and even Scotland, partition has been understood as a way to settle the conflict over their constitutional future, in the case of Spain, such option has been vehemently rejected. Instead, the accommodation of the centrifugal tendencies has been dealt by providing territorial autonomy to the different regions while following the principle of territorial integrity. Territorial autonomy denotes ‘home rule’ by the relevant ethno-linguistic groups over issues of their exclusive concern within their own territory. States usually opt for territorial forms of autonomy when there is a clear territorial concentration of the relevant groups. In that sense, this variant of autonomy may be institutionalised in the form of federalism as is the case in Bosnia, Belgium etc. or regionalism/quasifederalism as is the case in Spain, the UK and even Italy. ‘Historically, Spain emerged from a process that involved the unification of different kingdoms and territories […] Its constituent units […] had and continue to have strong cultural identities, including different languages’ (López-Laborda et al. 2007). Especially, the Basque country and Catalonia have had a tradition of nationalist movements that fought for political autonomy (Ferreres Comella 2013, 162). This is why the Second Spanish Republic (1931–1936) tried to accommodate the

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territorial problem by the enactment of regional Statutes guaranteeing a certain degree of political autonomy (ibid.). In fact, Catalonia in 1932 and the Basque Country four years later ‘were granted self-government, after referenda [sic] were held in those regions’ (ibid., 163).1 General Francisco Franco’s dictatorship put a violent end to this ‘regionalist spring’. Franco imposed an unbending and repressive policy of state centralism in Spain for almost four decades. So, as part of post-Franco democratisation and as a means of balancing powerful regional interests fostered by the revived Basque and Catalan nationalisms, Spain pursued anew a process of regionalisation. The result of it has been a negotiated settlement that is known as the Estado de las Autonomías.2 This hybrid formula has been described by academics as a ‘unitary State that is decentralised in regions’ (García Pelayo 1984, 242–244), as a ‘regional State’ (ibid.), as a ‘federation in all but name’ (Elazar 1994, 222), as a ‘federal system in practice’ (Burgess 2012, 19) as an order that exhibits ‘virtual federalism’ (Seijas Villadangos 2014, E-164), ‘federalism in the making’ (Moreno 1999, 149) and ‘unfulfilled federalism’ (Beramendi and Máiz 2004, 123). This ambivalence with regard to the classification of the constitutional system reflects the fact that the ‘Spanish constitution of 1978 omits any reference to the form of the state’ (Ruiz Almendral 2013, 14). Article 2 of Constitution proclaims that it ‘is based on the indissoluble unity of the Spanish nation’ but also ‘recognises and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them.’ However, neither the term ‘nationalities’ nor the term ‘regions’ are defined anywhere in the Constitution (Ruiz Vieytez 2004, 136). Instead, the constitution provides for an ‘optional autonomy system’, the socalled principio dispositivo (Fossas Espadaler 2007). According to it, certain groups of ‘bordering provinces with common historic, cultural and economic characteristics, insular territories and provinces with a historic regional status’ had the right to become self-governing Communities (Comunidades Autónomas).3 If they decided to do so, they could assume the competence to legislate over a list of areas that are enumerated in Articles 148 and 149 of the Constitution. In fact, the Constitutional Court has held that the political autonomy of the Spanish regions is reflected precisely in the fact that they may have the necessary competences to manage their own interests.4 In order to assume this legislative autonomy, the Comunidades Autónomas had to adopt a Statute of Autonomy (Estatuto de Autonomía). To this effect, the Constitution provided for two ways to achieve autonomy: the ‘normal route’ (vía normal) (regulated in Article 143) and the ‘rapid route’ (vía rápida) (regulated in Article 151). The ‘normal route’ meant that the relevant Autonomous Community that would opt for it would first assume a relatively small set of competences enumerated in Article 148 of the Constitution. It could only assume further competences and thus achieve 1A

regional statute was also discussed in Galicia. However, the referendum took place just a few weeks before the Civil War started and Franco’s forces occupied Galicia. 2 See inter alia Spanish Constitutional Court, sentencia no. 32/1981. 3 Spanish Constitution, Article 143(1). 4 Spanish Constitutional Court, sentencia no. 4/1981.

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a ‘higher level’ autonomy at a later stage (at least five years afterwards) by actually amending its Estatuto. On the other hand, an Autonomous Community that followed the ‘rapid route’, could reach the highest level of self-government immediately. In order to achieve the highest level of autonomy, the relevant region had to surpass a number of procedural hurdles. Most importantly, according to Article 151, the citizens in the region had to support in a referendum the initiative to follow the ‘rapid route’. If the initiative received the necessary support, the voters would also have to ratify the Statute of Autonomy in a second subsequent referendum. However, this cumbersome procedure did not apply to the three regions that had enjoyed selfgovernment during the Second Republic. By virtue of a special transitional rule in the constitution (Disposición Transitoria 2a),5 the regions that had already approved a regional statute during the Second Republic, i.e. Catalonia, Basque Country and Galicia could achieve the highest level of autonomy by a simplified procedure that just required the approval of the Estatuto in a referendum. Unsurprisingly, those three regions opted for this procedure. Despite the fact that this was only an ‘optional autonomy system’, it actually led to the division of the whole Spanish territory into 17 Comunidades Autónomas6 and 2 ‘autonomous cities’.7 Apart from the three nacionalidades históricas that followed the exceptional transitional procedure, Andalucía opted for the cumbersome ‘rapid route’ of Article 151 as well. Finally, Navarra had access to autonomy through a special organic law adopted by the Spanish Parliament (Cortes Generales), ‘after negotiation with the Diputación foral of that province’ (Ferreres Comella 2013, 162). Notwithstanding the procedural differences that every route entailed, the approval of the Spanish Parliament (Cortes Generales) through the enactment of an ‘organic law’ was a necessary requirement for the establishment of a certain Comunidad Autónoma.8 The approval of the Cortes Generales is also necessary for the amendment of an Estatuto,9 although the initiative for the procedure to start lies with the regions. The requirement for approval from the Cortes is in accordance with the view that the drafting of a given Estatuto is an act emanating from the wills of both the State and the respective region. In fact, this is what the Tribunal Constitucional has held in a judgment on the constitutionality of the Statute of Autonomy of the Comunidad Valenciana. There, it clarified that an Estatuto is an act that cannot be disposed of by the sole will of the national State or of the respective Comunidad Autónoma.10 So, within the Spanish constitutional order, the Statutes of Autonomy are both the

5 Transitional

Provision 2 (Disposición Transitoria 2a) of the Spanish Constitution.

6 They are: Andalucía, Aragón, Asturias, Baleares, Canarias, Cantabria, Castilla-La Mancha, Castilla

y León, Catalonia, Comunidad Valenciana, Euskadi (the Basque Country), Extremadura, Galicia, La Rioja, Madrid, Murcia and Navarra. 7 The two Spanish enclaves in Africa are Ceuta and Melilla. 8 Spanish Constitution, Article 144. 9 Spanish Constitution, Article 147(3). 10 Spanish Constitutional Court, sentencia no. 247/2007.

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‘highest norm of the region11 and a government law subject to the constitution’ (Ruiz Almendral 2013, 14). In that sense, the Estatutos as the ‘basic institutional rule of each Self-governing Community’12 may include additional contents but they still have to comply with the provisions of the Constitution.13 In its famous decision on the 2006 Catalan Estatut,14 the Constitutional Court made clear that ‘statutes of Autonomy are rules subordinated to the Constitution, as it [sic] corresponds to normative provisions that are not an expression of a sovereign power, but of a devolved autonomy based on the Constitution, and guaranteed by it, for the exercise of legislative powers within the framework of the Constitution itself’ (Hanschel 2014, E-252). And although the Estatut had obtained the support of the people in a regional referendum,’ (Ferreres Comella 2013, 162) the Tribunal Constitucional ‘rejected 14 and read down 27 out of the 114 articles’ (Hanschel 2014, E-252). Concerning the division of competences, while in a number of States with legislative regions the Constitution provides for the distribution of competences between the various tiers,15 in Spain, ‘the constitutional design is neither exact nor complete’ (Argullol i Murgadas and Bernadí i Gil 2006, 244). The Constitution lists three sets of competences: those that exclusively belong to the central government16 ; those that may be assumed by the Autonomous Communities through their Statutes of Autonomy17 ; and those that may be devolved from the central government to the Autonomous Communities through organic laws.18 In addition, the Comunidades Autónomas may also assume all those powers that are not explicitly allocated to the State.19 Finally, ‘[j]urisdiction on matters not claimed by Statutes of Autonomy fall with the State’.20 Clearly, because of the ‘open’ nature of the Spanish system of competences, the Statutes of Autonomy are necessary to complement the Constitution. ‘As provided in Article 147(2)(d) of the Constitution, the Statutes of Autonomy are the rules whose role it is to establish “the competences assumed within the framework established in the Constitution”, articulating in this manner a system of competences based on the Constitution and the Statutes.’21 This is why they are considered together ‘with certain state laws to which the Constitution refers in order to frame the distribution

11 Spanish

Constitution, Article 147. Constitution, Article 147(1). 13 Spanish Constitutional Court, sentencia no. 31/2010. 14 ibid. 15 See for instance Austrian Constitution Articles 10–15; Belgian Constitution Articles 105–114 and 127–140; German Basic Law, Articles 71–74; Italian Constitution, Article 117. 16 Spanish Constitution, Article 149. 17 Spanish Constitution, Article 148. 18 Spanish Constitution, Article 150. 19 Spanish Constitution, Article 149(3). 20 ibid. 21 Spanish Constitutional Court, sentencia no. 76/1983. 12 Spanish

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of powers’ (ibid.) to form part of the so-called bloque de constitucionalidad.22 In fact, the Spanish Constitutional Court has recognised the central role of the statutes in determining jurisdiction over particular areas. According to the Court, in order to determine if an area falls within the jurisdiction of the State or of the Autonomous Community, or whether a system of concurrent jurisdiction applies, in principle it is the text of the Statute of Autonomy of the Autonomous Community, in which competences are assumed, that shall be decisive. […]23

The constitutional reliance on the Statutes of Autonomy and the political asymmetries between the nacionalidades históricas on the one hand and the other regions on the other have led to an asymmetrical power distribution. Practically speaking, this has meant that the central State might have a competence with regard to a certain part of the Spanish territory while a Comunidad Autónoma might have assumed the very same competence over another part of the State. Equally, it means that not all the regions can exercise the same amount of competences. This was particularly evident during the first years of the Transición given that the Autonomous Communities that followed the ‘normal route’ could only assume a relatively small set of competences enumerated in Article 148 of the Constitution. On the other hand, Catalonia, Basque Country and Galicia that used the Transitional Provision and Andalucía that used the ‘rapid route’ could also assume the powers provided by Article 149. As time went by, and after the period of five years elapsed, even the low autonomy regions have progressively assumed the vast majority of the available competences. So, the constitutional asymmetry has been reduced between those regions which assumed their powers through the ‘rapid route’ and the rest.

3 Theory The core premise of our argument is that the delegation model of representative democracies requires that the transfer of competences to the subnational level be accompanied by the corresponding accountability mechanisms. This process gives room to subnational governments, elected via parliaments, which operate in the same way as national parliaments, i.e. via elections. The actors that compete in these elections have incentives to prime identity for at least four reasons. First, doing so helps to motivate participation in elections where the national executive is not at stake. Such elections are characterized by lower turnout rates and are seen as mirror images of the elections for the European Parliament, used by voters as a way to punish national incumbents (van der Eijk and Franklin 1996; Franklin and 22 See,

for instance, Spanish Constitutional Court, sentencia no. 76/83. Constitutional Court, sentencia no. 18/1982. The Court goes on to say that: ‘This statement, however, does not imply that once the Statute of Autonomy has been enacted its text is the only one that should be considered in the process of interpretation required to delimit areas of jurisdiction. To proceed in such manner would be to ignore the principle of the supremacy of the Constitution over the rest of the legal system.’.

23 Spanish

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Hobolt 2011; Hobolt et al. 2009). This pattern is well-documented in the literature, giving rise to the characterization of these elections as second-order elections (Reif et al. 1997; Marsh 1998). Bringing subnational identity into the electoral fray is thus a useful device to maintain high levels of interest and to deviate support away from the national mainstream parties. Second, identity can operate as a vehicle to shift accountability from the subnational to the national level. Multi-level governance tends to blur responsibility and subnational political actors can make use of this ambiguity to deviate blame attribution (Hobolt and Tilley 2014; Johns 2011; Papadopoulos 2010). In regions above the median of income distribution, interregional redistribution can be employed as a funnel to assign responsibility to the national incumbent. In regions below median income, partisan differences between subnational and national executives can be employed to explain suboptimal transfers from the central government. In both instances, framing subnational identity as distinct from national identity helps to highlight distinct interests between the two levels of government, thus adding credibility to blame attribution (Alesina et al. 1997). Third, increasing the saliency of identity makes voters less responsive to policy shocks, such as bad socioeconomic management and corruption (Finseraas 2008; Baldwin and Huber 2010). When identity is politicisized, it typically cross-cuts existing partisan coalitions and leaves voters with fewer alternatives. This tendency is particularly evident when the identity generates polarization, because polarization blocks partisan alternatives that stand in the opposite side of the political debate (Eggers 2014). Fourth, successful inculcation of ethnic identity from elites to voters can enhance public pressure for devolution, which if successful can extend the policy domains of subnational authorities. In this respect ethnoliguistic heterogeneity serves to advance the demand for policy transfers from the centre to the periphery. Erk and Koning provide empirical evidence for this tendency, showing that in ethnolinguisitically diverse polities, political mobilization along linguistic lines has been used as a vehicle to achieve higher levels of fiscal decentralization. In expectation, this practice gives room to parliamentary actors who converge along the identity dimension (Erk and Koning 2010). Shifting our focus on supply-side explanations of peripheral nationalism does not mean that demand ceases to be important. Institutional interventions are not assigned in a haphazard fashion. More often than not, they build upon pre-existing societal demand, stemming from deeply rooted social cleavages (Amorin-Neto and Cox 1997; Lipset and Rokkan 1967; Mozaffar et al. 2003). Such pre-existing cleavage structure can thus partially account for variation in the level of inclusiveness of electoral systems. By the same token, we expect decentralization, accompanied by the introduction of subnational representative institutions, to be driven by an underlying demand for regional autonomy in the decision making process. As Beramendi puts it, ‘insofar as federal institutions reproduce the underlying tastes of the relevant political coalitions, they do not really matter per se’ (Beramendi 2007). Empirically, this process of endogenous decentralization generates a serious challenge, as it becomes very difficult to disentangle the role of supply from that of

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demand in the development of peripheral nationalism. Theoretically, however, the two processes are distinct. Demand, on the one hand, leads to institutions that aim at accommodating the underlying taste for territorial autonomy. Supply, on the other hand, serves to strengthen this process by providing resources and incentives to subnational political entrepreneurs to increase the saliency of identity in the political debate. Seen in this way, the introduction of subnational governance structures represents a critical juncture, with unintended long-term consequences (Capoccia 2007). We think of supply operating in two ways: via party discourse and political compaigns on the one hand and via policies enacted by successful political coalitions on the other. While it is notoriously difficult to measure and assess empirically the impact of political discourse on people’s attitudes and preferences, gauging the impact of institutional changes put forward by political actors appears to be more tractable. One example comes from Catalonia. Hierro finds that the school reform that took place in that region in 1983 resulted in a gradual strengthening of dual identity, with the Catalan identification becoming almost as important as the Spanish one (Hierro 2015). The reform was made possible by the transfer of competence in education to the autonomous communities. The nationalist government (pre-electoral) coalition, already elected with absolute majority in the inaugural 1979 post-Franco Catalan elections, began to implement policies to motivate the usage of the Catalan language. As a result, in 1983, the Catalan Parliament approved the Law of Linguistic Normalization, which introduced a model of bilingual Spanish–Catalan education throughout Catalonia (ibid., 467). The law made teaching in Catalan compulsory in all schools and prohibited the separation of children into different schools on the basis of language. As Hierro finds, the outcome of this policy was progressive inculcation of Catalan identity. Using survey data from 2014, the author finds that more years of schooling increase a dual identity and they do so significantly more among those cohorts whose education took place after the 1983 reform. Similar evidence is provided by Martínez-Herrera and Clots-Figueras and Masella (Martínez-Herrera 2003; Clots-Figueras and Masella 2013). An interesting comparison confirming the link between schooling and identity formation comes from Aspachs-Brachons et al., who compare Catalonia with the Basque Country. Whereas in Catalonia teaching in the vernacular language was made compulsory, in the Basque country the reform, which was also initiated in the same period, let parents choose the language in which children were educated. The authors find that schooling was more powerful in disseminating a subnational identity in Catalonia than in the Basque country (Aspachs-Brachons et al. 2008).24 More explicit attempts to delve into the impact of subnational political entrepreneurs require focusing directly on the role of regional parties and elections. 24 The expansion of mass education has been also important in explaining why Catalan identity became salient and persisted south but north to the Pyrenees. As argued by Balcells, literacy appeared in the Northern part of the region under French rule. Such scholastic revolution was absent in Spain at least until the beginning of the 20th century. This delay allowed for the successful sowing of a Catalan national identity during the first decades of that century (Balcells 2013).

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An important contribution in this respect comes from Amat, who has tried to unpack the impact of partisan actors on preferences for interregional redistribution. Looking at survey data from 2009, the author finds that inter-generational redistribution preferences are driven not only by the standard economic indicators (GDP per capita within the region and regional fiscal balance) but also by the saliency of the decentralization dimension (Amat 2012). More importantly, building on Riker’s theory of heresthetics, Amat tries to look explicitly at the role of political parties in strategically priming the identity dimension in party competition (Riker 1984). As the author finds, this strategy is followed by subnational parties of both the left and right (Amat 2012). Quite interestingly, decentralization seems to also generate incentives for identity priming among national political actors, as the example of Popular party’s Spanish nationalism discourse reveals (Maravall 2008; Fernandez-Albertos 2002). We build on this work but also try to extend it by looking at a specific feature of subnational representation that has been thus far neglected, namely the role of elections. We expect that receiving the parties’ campaign signals and actually participating in the elections for the subnational parliament signifies a key element of identity socialization. These elections offer ample room for identity to be primed, debated and exalted. Parties can outbid each other along identity lines. Receiving these cues, voters are likely to develop more rigid understandings of the political importance of their subnational identity. We thus expect that taking part in subnational elections increases a sense of belonging within the subnational community and in so doing it instils pro-devolution preferences. As decentralization deepens and the role of identity in the political debate escalates, we expect the impact of these elections to also increase. Thus, our overarching hypothesis is that elections for subnational parliaments strengthen subnational identities and shape decentralization preferences accordingly.

4 Research Design Examining the impact of subnational elections on the formation of national identities presents itself with an important methodological obstacle. People choose whether to participate in these elections and if so how to vote. Individuals with strong feelings about subnational issues are more likely to take part in these elections. These are also the people who are more likely to hold strong subnational identities. Thus, comparing participants with abstainers does not allow us to disentangle the potential effect of elections from the underlying subnational identities that have already led people to either take part or abstain in these elections. We try to overcome this methodological challenge by making use of a specific attribute associated with the act of voting. Previous evidence has identified significant learning effects stemming from individuals early socialization experiences (Gerber et al. 2003; Meredith 2009). Voting in a given election reinforces prior attitudes about the chosen candidates and parties (Mullainathan and Washington 2009; Dinas 2014). This effect seems to be particularly strong in individuals’ first eligible election. The

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impact can touch upon different attributes, depending on the underlying context. For example, voting for the first time in American presidential elections seems to increase the feeling of attachment to the chosen party. Voting in elections for the European parliament seems to leave a long shadow in people’s political preferences, making them more likely to opt for a small party (defined as none of the first two parties of the national party system) (Dinas and Riera 2018). The mechanism driving this effect stems from the fact that when people manifest an attitudinal preference into a behavioral choice often seek for rationalizations as a way of alleviating dissonance for their decision. An alternative but complementary theorization sees individuals as generating identities by observing their own overt behavior. Bringing these findings from cognitive and social psychology into the context of subnational elections, we expect those who voted for the first time in a subnational rather than a national election to denote stronger levels of decentralization preferences. Looking at the first election still does not solve the problem, however, because people can still choose whether to vote or not and they can base their decision on their prior taste for decentralization. For this reason, instead of looking at actual turnout, we only compare individuals on their basis of eligibility. Having information about their year of birth, we can detect the type of the first eligible election, i.e. national or subnational. Given that national and subnational elections alternate each other there is no reason to believe that, within a range of age groups, older people are more likely to face a national rather than a subnational election (and vice versa). The zigzagging pattern that governs the relationship between age and subnational eligibility, shown in Fig. 1, makes it feasible for us to draw a comparison that is not driven by people’s demographic characteristics (e.g. how old they are or what is the social background or gender) but only by their eligibility status: some people by accident encounter first a subnational election and then a national one; others, again by accident, become of age before a national election and thus face first a national election and then a subnational one. Based on our reasoning, we expect the first group to develop more subnational identity than the second group. Using a 2009 survey particularly designed to unpack the spatial dimension of Spanish politics, we turn our focus on the case of Catalonia. Catalonia as a region presents an interesting case for the analysis, due to its dynamic feature of decentralization. As shown in Fig. 2, the degree of self-rule in Catalonia has escalated along the party system consolidation after the democratic transition. This process seems to have been incorporated in the political debate, with various successful parties priming decentralization. As a result, Catalans register high levels of dual voting, thus making the two types of elections likely to generate distinct types of voting choices. Two additional features of the survey make it a fertile ground for an indepth exploration of the role of subnational elections on national identity formation. First, it provides a variety of survey items to unpack different aspects of identity traits and decentralization preferences. Second, Catalonia is purposely oversampled, providing in total approximately 900 respondents to use for the empirical analysis. Unfortunately, the survey does not include information about the exact date of birth of each respondent. Thus, in some cases we need to make an (informed) guess whether individual’s first election was a subnational or a national one. The problem

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Fig. 1 Density of age among regional- and national-election first-time eligibles. Note The black curve denotes the age density among national-election first-eligibles whereas the gray line denotes the age density among regional-election first-eligibles

lies with those individuals who turn eighteen on the year of the election. In this case, the respondent is coded as having been eligible to vote in that election only if the poll day is after the end of June. If the election takes place in June, the observation is not included in the analysis, whereas if it is before June the assumption is that the individual has not been eligible to vote in that election and thus next election is taken as the first eligible election. Our primary interest lies in the impact of eligibility on decentralization preferences. We also want to assess to what extent subnational elections matter more as they become more politicized, along the deepening of decentralization in the region. We thus interact (multiply) our variable that distinguishes between types of elections (those first-eligible in a subnational election are given the value one whereas those first-eligible in a national election are given the value zero) with another variable that takes values from one to nine and each value indicates how old the respondent is,

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25

RAI Score

20

15

10

1980

1990

2000

2010

Years Fig. 2 Trajectory of the regional autonomy index in Catalonia, 1979–2010. Note Estimates based on the Regional Authority Index used in Hooghe et al. (2016)

i.e. which election was the first eligible election, covering all the period from 1979 to 2008.25 We measure decentralization preferences with a multitude of indicators. Perhaps most crucial in this respect is our measure of individual-level identity. We follow previous work on this issue and use the so-called Linz measure (Amat 2012), which measures identity as a bipolar 5-point scale, with one extreme representing only one, national, identification and the other extreme denoting only one, subnational, identity. Dual identities are indicated in the intermediate categories.26 Moreover, 25 The

fieldwork for the survey take place in April 2009 and respondents were asked how old they were in their last birthday. We thus stop at 2008 as we assume that most of them had their birthday in 2008. 26 The exact wording of this question is: Which of the following sentences best describes your feelings:

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Table 1 Balance statistics between regional- and national eligibles Regional-eligibles Female Any schooling Education (11-point scale)

45.18% 99%

National-eligibles 48.28% 99%

p-value (t-test) 0.862

5.32

5.47

Unemployed

21.8%

18.2%

Employed

66.5%

Self-Catalan

85.3%

Parent Catalan

57.4%

55.1%

Catholic

52.9%

58.6%

0.262

Age (18–93)

32.05

35.02

0.001

68.3% 80.9%

p-value (KS-test)

0.4943 0.4961

0.952

0.311 0.201 0.627 0.000

Note The last column denotes the p-value for the test of differences in distributions for the two non-binary indicators used in this exercise (education and age). Average age is low because the analysis focuses only on respondents born after 1959. This is done to ensure balance in age and other confounders between regional and national eligible

we use a measure of national versus subnational authority across a range of policy domains. In particular, respondents were asked about whether central or regional authority should be enhanced in a series of policy domains, ranging from immigration and public order up to foreign affairs, welfare and economic policy (nine in total). Finally, we use a measure of interregional redistribution preferences. We assume that those voting first in a regional election are more likely to feel Catalan, hold more prodecentralization views, ask for more policies to be transferred into the subnational government and less likely to perceive interregional inequality (given that Catalonia is above the median income and thus a net contributor in such transfers). Table 1 compares the means between national eligibles and sub-national eligibles across a series of covariates. As expected, no significant differences are found between the two groups. The only exception is age, where we still find national eligible as being on average three years older than regional eligibles. Although the difference is quite small and probably non-consequential, we add age in our model to control for its potentially confounding effect.27

1. 2. 3. 4. 5. 6.

I feel only Spanish I feel more Spanish than [Region] I feel as Spanish as [Region] I feel more [Region] than Spanish I feel only [Region] DK/DA.

27 Turning into estimation issues, instead of using a linear interaction term, we relax linearity in the variation of the effect of eligibility along the election cohorts variable, by using a more flexible kernel estimator, as suggested by Hainmueller et al. (2019).

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5 Results Figure 3 presents the effect of having a regional as compared to a national firsteligible election on the identity scale, ranging from “I feel only Spanish” to “I feel only Catalan”. We find significant variation over time. Early regional elections have if anything the opposite effect, turning individuals into a more pro-Spanish identification. As the devolution process escalates, however, the impact of first eligible election turns positive, indicating that over the more recent years being first eligible to vote in a subnational election strengthens a Catalan identification. Although the lower number of observations increases uncertainty in the first and last election intervals,

Marginal effect of Eligible on Identity

1

0

−1

−2

−3 2.5

5.0

7.5

Moderator: El.Cohorts

Fig. 3 Marginal effect of a first-eligible regional election on Spanish versus Catalan identity. Note The black line denotes the average difference in the Spanish-to-Catalan identification between those first eligible to cast a vote in a regional vs national election over the election cohorts. The shaded area encapsulates the 95% bootstrapped confidence intervals and the histogram denotes the distribution of the electoral cohorts in the data

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the overall pattern indicates an upward trend, consistent with the idea that as identity becomes more salient in the political arena, elections for subnational parliaments leave a shadow upon people’s regional identities. Figure 4 shows how the same pattern applies also to perceptions of intergenerational equality. Being first-time eligible to vote in a regional election has a positive effect on the economic interregional equality scale, ranging from “high levels of inequality” (1) to “high levels of equality” (5). This effect, however, requires time as the socialization of subnational identity is forged via both formal and informal institutions. As a result, those being in position to vote for the first time in a subnational election are increasingly more likely to also perceive that there high levels of equality between regions, thus implicitly opposing to further increase in transfers from Catalonia to other regions.

Marginal effect of Eligible on Equality

1

0

−1

2.5

5.0

7.5

Moderator: El.Cohorts Fig. 4 The marginal effect of regional eligibility on perceptions of interregional equality. Note The dependent variable is a five-point scale, with higher values indicating perceptions of greater interregional equality

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Figure 5 extends the analysis to preferences about national vs subnational authority across a wide range of policy domains. In total, nine areas are asked and in six of them we find the same pattern: those eligible to vote in the first regional election come prefer with higher likelihood a transfer of competencies from national to subnational government. The three exceptions, justice, policing and the economy, are areas with particularly high levels of support for regional authorities, thus probably generating ceiling effects in the estimation. All in all, the observed pattern provides at least suggestive evidence that by increasing identity, eligibility in a regional election also implies higher levels of support for self-rule in various policy areas. Figure 6 looks more directly at attitudes towards secessionism. The dependent variable is a scale ranging from zero to ten, with zero implying an indifferent reaction to the scenario of one of the regions of Spain separating from the country. Ten denotes a reaction against this possibility. As seen in the Figure, starting from higher

Fig. 5 The marginal effect of regional eligibility on preferences over subnational versus national authority. Nine issues. Note The blue curve denotes the effect of first-eligibility in subnational election and the dashed curves cover the 95% confidence intervals (obtained via bootstrapping)

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Marginal effect of Eligible on Secession

5.0

2.5

0.0

−2.5

−5.0 2.5

5.0

7.5

Moderator: El.Cohorts Fig. 6 Regional eligibility and secessionist attitudes. Note The outcomes is a 0–10 scale ranging from “I would not be at all unhappy” to “I would be very unhappy” in front of the possibility of one of the regions of the country becoming independent

values and gradually going to negative ones, indicates that over time those eligible to vote in regional elections become more indifferent towards a secessionism scenario. The overall difference between types of eligibility seems to stay far from conventional levels of statistical significance, however. It seems that the effect of voting in a regional election might not result in more positive views towards secessionist scenarios.

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6 Implications What are the implications of the accumulation of regional elections within a political context of peripheral nationalism? Figure 7 presents the difference in subnational identity levels between Catalans and the rest of Spain, across different age groups. We see that as we move to older individuals, which were already socialized before the Estado de Autonomías, the difference between Spanish and Catalan residents in identity terms is small. It is substantive, however, for those younger cohorts that have been experiencing politics under the prism of regional elections and have been more influenced by the discourse and issues put forward by the regional political parties.

Marginal effect of Catalan on Identity

0.6

0.3

0.0

−0.3 20

40

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Moderator: Age Fig. 7 Catalan versus Spanish identity and moderating role of age. Note For a given level of age, the curve denotes the average difference in subnational identity (the Linz measure) between Catalans and the rest of Spain (excluding the Basque Country). The shaded area denotes the 95% bootstrapped CIs whereas the histogram presents the distribution of age in the sample

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Taking this line of argumentation a step further, we should expect that infiltration of identity via elections would imply that the new cohorts, introduced into politics via these elections, would weigh more decentralization issues in their voting decisions than older cohorts. To examine whether this is the case, we use a decentralization scale, which measures respondents’ preferred state of decentralization and their perceptions about where each of the parties stand in the same dimension. In particular, the decentralization dimension is captured by an 11-point scale, ranging from “maximal centralization” to “maximal decentralization”. Respondents had to locate both themselves and the parties in this scale. Following standard practice in this literature, we try to gauge the impact of decentralization concerns by applying the smallest distance criterion (Downs 1957). We obtain the absolute difference between respondent and each party in the scale and use this difference as a predictor of the Propensity to Vote (PTV) for each of the parties asked in the survey. PTVs range from 0 (very unlikely) to 10 (very likely). The results for Catalonia appear in the first panel of Fig. 8. We expect a negative coefficient, in that smaller distance is associated with higher utility for the party in question. This is what we get, but again this negative association is gradually diminished as we move to older age groups. Evidently, there is a monotone age-driven pattern which makes decentralization concerns a more salient factor in the voting choices of young Catalans than their older counterparts. As a way to assess this pattern, we replicate this analysis but looking at Spanish voters. We use the same exact measurement and estimation strategy, looking however at the sample outside Catalonia. The results appear in the second graph of Fig. 8. We find a less clear pattern, with lower, on average, weight placed to this issue and no monotone relationship between the importance of this predictor and age. It clearly cannot be just age that explains the pattern in Catalonia as it would yield a similar pattern in rest of the country. It seems at least quite plausible that this 0.00

Marginal effect of Proximity on PTVs

Marginal effect of Proximity on PTVs

0.0

−0.2

−0.4

−0.6

−0.25

−0.50

−0.75

−1.00

−1.25 20

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Moderator: Age, Catalonia

80

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Moderator: Age, Spain

Fig. 8 The impact of Decentralization on PTVs, Catalonia and the rest of Spain. Note Each graph presents the impact of perceived proximity between respondents and each party in the issue of decentralization on respondents’ voting decisions. The first panel presents the results from the Catalan sample whereas the second panel presents the results from the Spanish sample

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difference stems from the impact of regional elections and party competition have in the socialization of identity among new-coming Catalan cohorts. In expectation, this pattern should reinforce subnational identity among the society, exercises pressure for further decentralization. The mid-term consequences of this pattern have been already observed in the 2015 regional election, which was framed by the subnational political elites as a de facto referendum for the region’s future permanence as member of Spain. Finally, these results imply that subnational identity formation is not built only through informal socialization means but can be also forged via institutional means. As a consequence, we should thus expect that the impact of family socialization should diminish through the accumulation of subnational electoral experience. We try to test this expectation by looking at the impact of having a Catalan parent in the formation of subnational identity. The results appear in Fig. 9. As can be seen, for younger cohorts a Catalan family background does not seem to add much into the average identity score of respondents. As we move to older cohorts, however, the presence of a parent from the same region exerts a much stronger impact on Catalan identity. We find a relatively steep slope, whereby the difference in the identity scale ranges from less than a point (in a 5-point scale) to up to two points. It seems that for younger Catalans, institutions render part of the early family socialization less consequential for offspring’s subnational identity outlook. Without presenting the Figure here, the equivalent exercise when looking at Spain yields null findings, with younger cohorts being equally likely as older to cohorts to increase their subnational identity as a result of common parental background. Even more importantly, throughout the age range, the impact of having a parent from the same background remains much lower for the rest of Spain than for Catalans.

7 Only a Catalan Story? Without aiming at a full-fledged examination of the same argument in the Scottish case, we only provide a very small piece of suggestive evidence regarding the mechanism at play. The first panel of Fig. 10 shows the relationship between the Scottish National Party and age, in two time points, i.e. in 1983 and in 2015. SNP participates in the Westminster elections already before the 1997 devolution arrangement. Moreover it is more popular among the young. The party dynamics generated since 1997 however, and culminating with the 2015 referendum, qualify this relationship, as shown in the second panel of the figure, where we find much steeper relationship between age and support for the SNP. Although only indicative, this pattern speaks in the heart of our argument about how subnational representation in the context of self-rule generates secessionist preferences.

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Marginal effect of ParentCatalan on Identity

2.0

1.5

1.0

0.5

0.0

20

40

60

Moderator: Age Fig. 9 The diminishing impact of parental ethnolinguistic similarity in peripheral nationalist sentiments. Note The line denotes the local average difference in the identity score (from Spaniard to Catalan) among respondents in Catalonia, between those having at least one parent from the region and those who do not. The shaded areas represent the 95% bootstrapped confidence intervals and the histogram displays the distribution of age in the sample

8 In Lieu of a Conclusion In the present paper, we focused on how subnational elections strengthen subnational identity, disseminate views in favour of further decentralization and may potentially cultivate secessionist preferences. However, the paper should not be read in any way as a polemic against constitutional systems that entail segmental autonomy. In fact, it is precisely those systems that have allowed the citizens in many turbulent places in the world to enjoy a more peaceful political life. We should, however, problematize the unintended consequences of territorial autonomy. As we said in the beginning of this paper, the majority of the regional

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0.4

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SNP Vote

SNP Vote

BES 1983 0.6

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Age in Years

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Age in Years

Fig. 10 SNP vote share and respondent in 1983 and 2015. Note Each graph denotes the local average vote share of the SNP, given respondents’ age. The shaded area encompasses the bootstrapped 95% CIs. The analysis displayed in the first panel used the 1983 British Election Study, whereas the second graph comes from the 2015 BES study

parliaments do not enjoy redistributive competences. And this was definitely the case for the Spanish ones apart from the Basque Country and Navarra. As a result, political parties in the regional legislatures opt for priming an identity dimension, which gradually feeds nationalist claims. So, perhaps, a way to counter-balance those unintended consequences is exactly to devolve such competences to the regional level. A regional parliament which enjoys both tax-raising powers and significant powers over expenditure might somehow paradoxically address the problem. And the reason is that in such a parliament a significant part of the debate will not be about identity politics any more but about the proper administration of funding.

References Alesina A, Reza B, Easterly W (1997) Public goods and ethnic divisions. National Bureau of Economic Research, Cambridge, Massachussets Amat F (2012) Party competition and preferences for inter-regional redistribution in Spain. South Eur Soc Polit 17(3):449–465 Amorin-Neto O, Cox GW (1997) Electoral institutions, cleavage structures, and the number of parties. Am J Polit Sci 41(1):149–174 Argullol i Murgadas E, Bernadí i Gil X (2006) Kingdom of Spain. In: Majeed A, Watts RL, Brown DM (eds) Distribution of powers and responsibilities in federal countries. McGill-Queen’s University Press, Montreal and Kingston, pp 239–264 Aspachs-Bracons O, Costa-Font J, Clots-Figueras I, Masella P (2008) Compulsory language educational policies and identity formation. J Eur Econ Assoc 6:434–444

The Paradox of Territorial Autonomy …

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Baldwin K, Huber J (2010) Economic versus cultural differences: forms of ethnic diversity and public goods provision. Am Polit Sci Rev 104(4):644–662 Balcells L (2013) Mass schooling and catalan nationalism. Natl Ethn Polit 19(4):467–486 Beramendi P, Máiz R (2004) Spain. Unfulfilled Federalism (1978–1996). In: Amoretti UM, Bermeo N (eds) Federalism and territorial cleavages. John Hopkins University Press, Baltimore, pp 123– 153 Beramendi P (2007) Inequality and the territorial fragmentation of solidarity. Int Org 61(4):783–820 Burgess M (2012) In search of the federal spirit. New Theoretical and empirical perspectives in comparative federalism. Oxford University Press, Oxford Capoccia G (2007) The study of critical junctures: theory, narrative and counterfactuals in historical institutionalism. World Polit 59(3):314–369 Clots-Figueras I, Masella P (2013) Education, language and identity. Econ J 123(570):F332–F357 Dinas E (2014) Does choice bring loyalty? Electoral participation and the development of party identification. Am J Polit Sci 58(2):449–465 Dinas E, Riera P (2018) Do European parliament elections impact national party system fragmentation? Comp Eur Polit 51(4):447–476 Downs A (1957) An economic theory of democracy. Harper, New York Eggers A (2014) Partisanship and electoral accountability: evidence from the UK expenses scandal. Q J Polit Sci 9(4):441–472 Elazar D (1994) Federal systems of the world. Longman, Harlow Erk J, Koning E (2010) New structuralism and institutional change: federalism between centralization and decentralization. Comp Polit Stud 43(3):353–378 Fernández-Albertos J (2002) Votar en dos dimensiones: el peso del nacionalismo y la ideología en el comportamiento electoral vasco, 1993–2001. Revista Española de Ciencia Politica 6:153–181 Ferreres Comella V (2013) The constitution of Spain: a contextual analysis. Hart Publishing, Oxford Fossas Espadaler E (2007) El principio dispositivo en el Estado autonómico. Marcial Pons-IVAP, Madrid, Barcelona, Buenos Aires Finseraas H (2008) Immigration and preferences for redistribution: an empirical analysis of European survey data. Comp Eur Polit 6(4):407–431 Franklin MN, Hobolt SB (2011) The legacy of lethargy: how elections to the European Parliament depress turnout. Electoral Stud 30(1):67–76 García Pelayo M (1984) Derecho constitucional comparado. Alianza Universidad Textos, Madrid Gerber A, Green D, Shachar R (2003) Voting may be habit-forming: evidence from a randomized field experiment. Am J Polit Sci 47(3):540–550 Hainmueller J, Mummolo J, Xu Y (2019) How much should we trust estimates from multiplicative interaction models? Simple tools to improve empirical practice. Unpubl Manus Polit Anal 27(2):163–192 Hanschel D (2014) The role of subnational constitutions in accommodating centrifugal tendencies within European states: Flanders, Catalonia and Scotland compared. Perspect Fed 6:E-244–E-271 Hierro MJ (2015) Crafting identities in a multinational context: evidence from Catalonia. Nat Natl 21(3):461–482 Hobolt S, Spoon J, Tilley J (2009) A vote against Europe? Explaining defection at the 1999 and 2004 European Parliament elections. Br J Polit Sci 39(1):93–115 Hobolt S, Tilley J (2014) Blaming Europe?: responsibility without accountability in the European Union. Oxford University Press, Oxford Hooghe L, Marks G, Schakel AH, Niedzwiecki S, Osterkatz Chapman S, Shair-Rosenfield S (2016) Measuring regional authority: a postfunctionalist theory of governance, vol I. Oxford University Press, Oxford Johns R (2011) Credit where it’s due? Valence politics, attributions of responsibility, and multi-level elections. Polit Behav 33(1):53–77 Lipset SM, Rokkan S (1967) Cleavage structures, party systems, and voter alignments: an introduction. In: Lipset SM, Rokkan S (eds) Party systems and voter alignments: cross-national perspectives. Free Press, New York p, pp 1–27

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López-Laborda J, Martínez J, Monasterio C (2007) Kingdom of Spain. In: Shah A (ed) The practice of fiscal federalism: comparative perspectives. McGill-Queen’s University Press, Montreal and Kingston, pp 287–315 Maravall JM (2008) La confrontanción política. Taurus, Madrid Marsh M (1998) Testing the second-order election model after four European elections. Br J Polit Sci 28:591–607 Martínez-Herrera E (2003) From nation-building to building identification with political communities: consequences of political decentralization in Spain, the Basque country, Catalonia and Galicia, 1978–2001. Eur J Polit Res 41(4):421–453 Meredith M (2009) Persistence in political participation. Q J Polit Sci 4(3):187–209 Moreno L (1999) Federalisation in the making. In: Agranoff R (ed) Accomodating diversity. Asymmetry in Federal States. Nomos, Baden-Baden, pp 149–167 Mozaffar S, Scarritt JR, Galaich G (2003) Electoral institutions, ethnopolitical cleavages, and party systems in Africa’s emerging democracies. Am Polit Sci Rev 97(3):379–390 Mullainathan S, Washington E (2009) Sticking with your vote: cognitive dissonance and political attitudes. Am Econ J Appl Econ 1(1):86–111 Papadopoulos Y (2010) Accountability and multi-level governance: more accountability, less democracy? West Eur Polit 33(5):1030–1049 Reif K, Schmitt H, Norris P (1997) Second-order elections. Eur J Polit Res 31:109–124 Riker W (1984) The heresthetics of constitution-making: the presidency in 1787, with comments on determinism and rational choice. Am Polit Sci Rev 78(1):1–16 Ruiz Almendral V (2013) Asymmetrical Federalism in Spain: the challenges of financing the autonomous communities. In: Ruiz Almendral V, Vaillancourt F (eds) Autonomy in subnational income taxes: evolving powers, existing practices in seven countries. McGill-Queen’s University Press, Montreal and Kingston, pp 13–42 Ruiz Vieytez EJ (2004) Federalism, subnational constitutional arrangements, and the protection of minorities in spain. In: Tarr GA, Williams RF, Marko J (eds) Federalism, Subnational Constitutional Arrangements And The Protection Of Minority Rights. Praeger Publishers, Westport, pp 133–153 Seijas Villadangos E (2014) Answers to centrifugal federalism: Asymmetrical federalism versus coercive federalism. Perspect Fed 6: E-164–E-190 van der Eijk C, Franklin MN (1996) Choosing Europe? The European electorate and national politics in the face of union. Michigan University Press, Ann Arbor

Elias Dinas holds the Swiss Chair in Federalism, Democracy and International Governance (joint SPS/RSCAS chair)—while on leave from the University of Oxford, where he is Associate Professor in Comparative Politics and a Tutorial Fellow at Brasenose College. Nikos Skoutaris is Associate Professor in EU Law at the University of East Anglia.

Entrenching Hegemony in Cyprus: The Doctrine of Necessity and the Principle of Bicommunality Nasia Hadjigeorgiou and Nikolas Kyriakou

Abstract When Cyprus became an independent state, newly-drafted constitutional provisions sought to safeguard the rights of the different communities that made up its population – Greek Cypriots, Turkish Cypriots, Maronites, Armenians and Latins. Nevertheless, most political power since then has been concentrated in the hands of the Greek Cypriot majority, with the other groups remaining largely marginalised. This hegemony of the Greek Cypriot political elite has been the result of a dual, and rather contradictory approach. On the one hand, the constitutional protections for the different groups have been eroded through the application of the doctrine of necessity, a mechanism intended to keep the Constitution up to date with the political developments in the country. Conversely, in cases where the doctrine could be used to safeguard the minorities’ rights, the government has highlighted the unamendable nature of the Constitution and relied on the obsolete constitutional provisions that the doctrine of necessity was designed to avoid.

1 Introduction The 1960 Constitution of the Republic of Cyprus (henceforth, RoC or Republic),1 with its rigid and numerous unamendable provisions intended to protect the two communities that live on the island, has been described as one of the strictest constitutions in the world.2 In addition to its community-specific protections, the Constitution

1 Constitution 2 de

of the RoC, signed on 16 August 1960 (henceforth, ‘Constitution’). Smith (1964), 296.

N. Hadjigeorgiou (B) School of Law, University of Central Lancashire (Cyprus), Pyla, Cyprus e-mail: [email protected] N. Kyriakou Court of Justice of the European Union, Luxembourg City, Luxembourg e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_18

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includes a long Bill of Rights, which should be read alongside the Republic’s obligations as a signatory to the European Convention on Human Rights (ECHR) and the Framework Convention for the Protection of National Minorities. Yet, even a cursory look at Cyprus’ sociopolitical scene today shows a very different picture from the one envisioned by the drafters of the Constitution. Rather than the Republic’s state bodies reflecting the letter and spirit of the Constitution by protecting the communities and religious groups that make up its population – Greek Cypriots (GC), Turkish Cypriots (TC), Maronites, Armenians and Latins – the political power is largely exercised by the GC majority, with the three smaller religious groups being mostly marginalised and the members of the larger, TC community being almost completely ignored. This hegemony of the GC political elite is not an accident; rather, the erosion of the rights of TC and the religious groups has partly been the result of a dual, and rather contradictory, strategy.3 On the one hand, the legislature has restricted their rights by arguing that the special political circumstances that exist on the island justify the departure from constitutional protections through the doctrine of necessity. On the other, and in cases where the doctrine of necessity could have been used as a tool to promote, rather than restrict, human rights, the argument has been that any limitations on these rights are mandated by the Constitution itself, whose relevant provisions are impossible to amend. The article supports this argument by examining in a critical light the jurisprudence of the Supreme Court of Cyprus and the country-specific reports of the Advisory Committee on the Implementation of the Framework Convention for the Protection of National Minorities. Section 2 briefly outlines Cyprus’ political and constitutional context and Sect. 3 explains how the rigid constitutional provisions, coupled with the unstable political situation on the island, led to the birth and development of the doctrine of necessity. Section 4 discusses the theoretical criticisms that have been made against it, while Sect. 5 explores the way in which it has been applied in practice. Combined, these two sections contend that the use of the doctrine has indeed been necessary and can be defended from principled criticisms, but that its practical application over the years has been problematic. In particular, the uncritical use of the doctrine has contributed to the erosion of human rights and other constitutional provisions that were designed to protect the rights of TC and members of the three religious groups. Finally, Sect. 6 explores the other side of the coin by showing how, in cases where the doctrine of necessity could have been used for the protection of human rights, the government has chosen to rely instead on the bicommunal and unamendable nature of different constitutional provisions. As a result, these provisions, which were originally intended to protect the rights of minorities, have backfired and been used to their detriment.

3 It

has also partly been the result of the invasion and ongoing occupation of the island by Turkey.

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2 The Constitutional Background of Cyprus The Constitution of the Republic was negotiated and drafted by the governments of Greece, Turkey and the UK, together with the involvement of GC and TC representatives. 4 In 1960, Cyprus ceased being a British colony and was declared a sovereign and independent state.5 The Constitution’s main consideration and objective was to balance the competing interests of the different groups in the population, and especially the GC and TC, who make up the two larger communities on the island.6 An estimated 1 million people live in Cyprus, with approximately 80% being GC and 18% TC.7 The remaining 2% consists of religious minorities, which are officially acknowledged as ‘religious groups’ in the Constitution. There are three such recognised religious groups in Cyprus, namely Maronites, Armenians and Latins. In light of the above, Article 2 of the Constitution defines the constituency of the two communities in the following terms: the Greek Community comprises all citizens of the Republic who are of Greek origin and whose mother tongue is Greek or who share the Greek cultural traditions or who are members of the Greek-Orthodox Church,8

while: the Turkish Community comprises all citizens of the Republic who are of Turkish origin and whose mother tongue is Turkish or who share the Turkish cultural traditions or who are Moslems.9

Contrary to the classical liberal tradition, which endows individuals with the capacity of ‘citizen’ based solely on their relationship to the State and is colourblind to other identities they may have, the Cypriot paradigm is premised on an ethnically mediated citizenship.10 In other words, to be a citizen of the Republic, an individual must first demonstrate possession of at least one characteristic that places him or her within one of the two communities. This division of the population along ethnic lines is not only limited to Article 2; it runs through the entire text of the Constitution and is prevalent in every aspect of its provisions. To give but one example, recruitment to the public service is regulated on a ratio of 7:3 for GC and TC respectively.11 Allocation by quotas is also the rule of thumb for independent institutions and other 4 Polyviou

(2015), 6. (2006), 242. 6 For a theoretical analysis of the challenges faced by multinational societies and the responses they tend to adopt to these, in the form of constitutional asymmetry, as in the case of Cyprus, see in this volume Sahadži´c (2020). 7 Department of Statistics and Research (1963). This is the last reliable census that took place in Cyprus. 8 Constitution, Article 2(1). 9 Ibid., Article 2(2). 10 For a discussion and partial challenge of the classical liberal tradition, see Kymlicka (1995). 11 Constitution, Article 62(2). 5 Crawford

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public offices.12 Moreover, the system includes many checks and balances, such as the veto power granted both to the (GC) President and the (TC) Vice-President,13 and the requirement for double majorities in the House of Representatives on a range of issues that seek to protect the interests of the numerically smaller TC community.14 While the Constitution pays sufficient – or even, one could say, excessive – attention to the protection of GC and TC, it adopts a diametrically opposite approach to the rights of Maronites, Armenians and Latins. Most problematically, it does not envision the option of non-participation in either of the two dominant communities. Citizens are free to opt to belong to the community of their choice and exit from it, but should they decide to exit one, they would automatically be delegated to the other community.15 Due to this, soon after independence, the three religious minority groups were asked to choose membership in either of the two dominant communities, with all three opting for inclusion in the GC majority.16 The principal repercussion of this was that the political participation of the three groups was mediated solely through the dominant segment of the population. However, since their members could not fully satisfy the definitions of either of the two dominant communities found in Article 2, the requirement that they participate in the polity through one of these, put a straightjacket to the development of their identity.17 The operation of such strict constitutional provisions rendered necessary the existence of a surplus of goodwill and mutual trust, as sine qua non conditions. Due to the lack thereof, soon after the Constitution’s adoption, and before it even became fully operational, problems arose between the governing GC and TC elites and poisoned inter-communal relations.18 Reflecting the GC dissatisfaction with the then state of affairs, in 1963, President (and Archbishop) Makarios submitted a proposal for amendments to the Constitution that are widely referred to as the ‘13 points’.19 The main thrust of this proposal, which sought to radically change the Constitution, was the abolition of the TC Vice-President’s veto and of the double majorities in the House of Representatives, as well as a downward revision of TC representation in the public service and security forces to reflect the actual population ratio. In response to this proposal for amendments, towards the end of 1963, all TC civil servants and officials ceased to attend their posts, and an estimated 25,000 TC moved to various geographical enclaves created around the island, which were controlled by their community. At this point, the TC community started creating separate administrative structures, parallel to those of the RoC, while disputing the 12 See,

for example, ibid., Part 6. Articles 50 and 57. 14 Constitution, Article 78(2). 15 Constitution, Article 2(5). 16 Constitution, Article 2(3). 17 This criticism should not be interpreted as support for the inclusion of even more extensive group rights in the Constitution. Rather, more nuanced and less crude protections could have been adopted; the question of what such protections should look like, falls outside the ambit of this chapter. 18 Soulioti (2006). 19 Polyviou (2015), 27. 13 Constitution,

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legal claim of GC over the Republic.20 It is through this volatile context that the doctrine of necessity emerged.21

3 The Birth of the Doctrine of Necessity The non-participation of TC in the affairs of the State in 1963, which continues to this day, created a constitutional conundrum: how to ensure the survival of the RoC and the smooth running of government when the Constitution itself is premised on the cooperation of the two communities? The solution to this was given in The AttorneyGeneral of the Republic v. Mustafa Ibrahim and Others, in which the Supreme Court decided that the doctrine of necessity could be used to essentially amend or disapply constitutional provisions that could no longer be complied with.22 Ibrahim has been cited with approval by apex courts around the world and the doctrine of necessity is today the unwritten cornerstone of the Cypriot legal order.23 However, the effects of the doctrine should be assessed in light of the developments that have taken place in the Republic over the years. In particular, it should be recalled that the majority of the population has been identifying itself and the RoC, not as Cypriot, but as Greek. As a result, the survival of the state, which the doctrine of necessity sought to achieve, has often been attained to the detriment of those who have a different identity to the Greek one, namely TC and members of the three religious minorities. The facts that gave rise to Ibrahim are interlinked with Cyprus’ legal and political history. From 1963 to 1974, TC remained isolated in enclaves around the island, while GC were in exclusive control of the Republic. One of the first actions of the (now exclusively GC) House of Representatives was to pass the Administration of Justice (Miscellaneous Provisions) Law 33 of 1964. The Law established a new Supreme Court and provided that temporarily and ‘until such time as the people of Cyprus may determine such matters’,24 this Court would exercise the jurisdiction of both the Supreme Constitutional Court and the High Court. These two Courts, according to Articles 133 and 153 of the Constitution, were staffed by GC, TC and international

20 Drousiotis

(2008), 151. (2020) in this volume argues that a constitution-making (or constitution-amending) process can be reconciliatory when it entails the participation of the communities and relies on a national dialogue based on principles of mutual respect, inclusivity, deliberation and justice. Neither of these conditions were satisfied in 1960 or 1963. 22 The Attorney-General of the Republic v. Mustafa Ibrahim and Others (1964) CLR 195 (henceforth, Ibrahim). 23 Ibrahim has been cited in Canada (Re Manitoba Language Rights [1985] SCR 721), Pakistan (Bhutto v. The Chief of the Army Staff and the Federation of Pakistan PLD 1977 SC 710), Lesotho (Mokotso and Others v. King Moshoeshoe II and Others, 5 Aug. 1988, (1992) 90 ILR 427) and Grenada (Mitschell and Others v. Director of Public Prosecutions and Another 45 (1986) LRC 86). 24 Preamble of the Administration of Justice (Miscellaneous Provisions) Law 33/1964. 21 Mahmoud

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judges. Since their international members had either retired or resigned,25 the concern was that their incomplete composition would render them unable to function; thus, the rationale of the Law was to device a solution that addressed this.26 Ibrahim arose when a TC defendant argued before the newly merged Supreme Court that it had no jurisdiction to hear the criminal case against him, since its existence was not provided by the Constitution. In their seminal judgments, the three (GC) judges that heard the case justified the existence of the Court and the constitutionality of the Law by relying on the doctrine of necessity. Referring to the Latin legal maxim salus populi suprema lex esto, Judge Triantafyllides argued that a Constitution operates for the well-being of the State, rather than the other way round; ‘to hold otherwise’, he concluded, ‘would amount to the absurd proposition that the Constitution itself ordains the destruction of the State which it has been destined to serve.’27 Thus, it was imperative to use the doctrine of necessity in order to make the Constitution and the country functional again. Similarly, Judge Josephides read the doctrine of necessity in the constitutional architecture in the following terms: I interpret our constitution to include the doctrine of necessity in exceptional circumstances, which is an implied exception to particular provisions of the constitution; and this in order to ensure the very existence of the State. The following prerequisites must be satisfied before this doctrine may become applicable: (a) an imperative and inevitable necessity or exceptional circumstances; (b) no other remedy to apply; (c) the measure taken must be proportionate to the necessity; and (d) it must be of a temporary character limited to the duration of the exceptional circumstances.28

As a result of this decision, the doctrine of necessity has been used to fill vacant TC governmental positions in two ways. Generally speaking, positions that are elected have remained vacant and those that are appointed have been filled by GC. Both are instances where the bicommunal character of the Constitution has been restricted through the doctrine of necessity. Moreover, Ibrahim was the first of many cases in which the doctrine was used to address unforeseen situations that do not have to do with the bicommunal nature of the Constitution.29 It has been employed, inter alia, to justify the abolition and/or replacement of bodies found in the Constitution,30

25 Contrary to all other TC officials who resigned their posts in 1963, TC judges stayed in their positions until 1966. See Pikis (2006), 26. 26 Ibrahim. 27 Ibid. 28 Ibrahim. 29 E.g. Chimonides v. Manglis (1967) 1 CLR 125; Alloupas v. National Bank of Greece (1983) 1 CLR 55; Adrian Holdings Ltd v. The Republic [1999] 3 CLR 828. Also, see the case law discussed in Emilianides (2013), 38–50 and Pikis (2006), 27–36. 30 Bagdassarian v. Electricity Authority of Cyprus (1968) 3 CLR 736.

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to make fundamental changes to the family courts in the country31 and to lower the voting age for legislative elections from 21 to 18 years of age.32 Nevertheless, despite the practical importance, and indeed necessity of Ibrahim, the doctrine has been criticised as being unprincipled and fundamentally flawed. We address this issue in the next section.

4 Principled Disagreements with the Doctrine of Necessity The first criticism, voiced by TC academics, is that the changes that took place in 1963 in the country were so drastic that the doctrine of necessity could not justify them sufficiently.33 Rather, the argument goes, only Kelsen’s (1961) theory of revolution could be used to legitimate the continued existence of the RoC.34 Since this was not used, and indeed doubts are raised as to whether it could be used, the Republic has ceased to exist; Ibrahim, and all of the Republic’s actions since then, lack both legality and legitimacy. Yet, this argument fails to take into account the realities on the ground: since 1963, Cyprus has joined international organisations, participated in international forums and been the subject of numerous UN resolutions, all of which confirm its existence as a state.35 Moreover, state practice in international law, and in particular the events that unfolded after the collapse of the USSR, suggest that even fundamental constitutional changes do not necessarily affect an entity’s status as a recognised state.36 The second principled argument against Ibrahim is that it carves out a hole in the overall legal regime by overriding Article 183 of the Constitution. Article 183 allows for a declaration of a state of emergency, which in turn, can result in the suspension of certain of the Constitution’s guarantees. Thus, the fallacy of the doctrine of necessity is premised on the argument that the Constitution already provided an available legal route to the GC community, that of declaring a state of emergency, which was not put to the test. This argument draws support from The Turkish Communal Chamber v. Council of Ministers, a case that was decided by the Constitutional Supreme Court

31 Nικ oλα ´ oυ

και αλλων ´ v. Nικ oλα´ oυ και αλλ ´ oυ (1992) 1 CLR 1338 [Nicolaou and Others v. Nicolaou and Other (1992) 1 CLR 1338]. 32 Π ρ o ´ εδρ oς τ ης Δημoκρατ ι´ας ν. Boυλης ´ τ ων Aντ ιπ ρ oσ ωπ ´ ων [1986] 3 CLR 1439 [President of the Republic v. House of Representatives [1986] 3 CLR 1439]. 33 Necatigil (1993), 64–65; Özersay (2004–2005), 31. 34 Kelsen (1961). 35 For a selection of UN documents and resolutions on Cyprus, see Security Council Report, ‘UN Documents for Cyprus’ available at http://www.securitycouncilreport.org/un-documents/cyprus/ [accessed 27/05/2019].). 36 For instance, the USSR underwent significant constitutional changes in the beginning of the 1990s, but the Russian Federation, as its successor, remained an internationally recognised state and maintained its permanent seat at the UN Security Council.

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a few months before the withdrawal of the TC officials from the government.37 In that case, the majority of the Court unequivocally stated that under a written Constitution, such as that of the Republic of Cyprus, which expressly provides for extraordinary competences to overcome certain defined situations of emergency, there can be no implied power, outside of such express constitutional provisions, of any organ of the Republic to override, in a case of ”necessity”, competences of other organs, and to step beyond the limits of its own competences or to act without the basis of a law.38

However, the problem with relying on Article 183, rather than the doctrine of necessity, is that it is itself dependent on the cooperation of the two communities. The power to issue a Proclamation of Emergency under Article 183 belongs to the Council of Ministers, which consists, according to the Constitution, of 7 GC and 3 TC members.39 Moreover, the decision of the Council of Ministers is subject to the veto power of the President and/or the Vice President.40 Considering that by the time Ibrahim was decided, both the Vice-President and the TC Ministers had already left their posts, it was practically impossible to use Article 183. The final principled criticism of the doctrine of necessity is that while it is based on the premise that the State is faced with a calamity of such magnitude that it is permissible to ignore certain provisions of the Constitution, no declaration of emergency has been made to the Council of Europe under Article 15 of the ECHR. Thus, the use of this doctrine creates a judicially sponsored situation, which justifies derogation from, or non-application of, human rights without following the internationally prescribed legal path. Despite the merit of this argument, it is not something that has been picked up by the European Court of Human Rights itself. In fact, the Court has implicitly approved the existence of the doctrine in Aziz v. Cyprus when it referred to, and accepted the need for, legal mechanisms designed to address ‘the anomalous situation that began in 1963’.41 It appears therefore that the problem with the doctrine of necessity is not so much one of principle; rather, as the next section suggests, it is one of application.

5 Applying the Doctrine of Necessity Judge Josephides had made it clear in Ibrahim that any derogation from the Constitution would have to be necessary and proportionate to the need that has arisen. Despite the Courts mentioning these conditions in all subsequent cases where the doctrine was used, they have only paid lip service to them, thus essentially giving the legislative and executive a carte blanche as to when they could depart from the provisions of the Constitution. Illustrative of this is the case of Ibrahim itself: after 37 The

Turkish Communal Chamber v. Council of Ministers [1963] 5 CLR 59.

38 Ibid. 39 Constitution,

Article 46.

40 Ibid. 41 Aziz

v. Cyprus (2005) 41 E.H.R.R. 11, para 26.

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exhaustively analysing the existence of ‘an imperative and inevitable necessity or exceptional circumstances’, the judges paid no attention to the question of whether it was indeed proportionate, or even necessary, to merge the Constitutional Supreme and High Courts into a single Supreme Court. Thus, it is to this day still unclear why the House of Representatives could operate and pass laws with only its GC members in attendance, but the two Courts could not deliver judgments in the same way. A similar example where the strict conditions set out by Judge Josephides were not followed, resulting in serious problems with the application of the doctrine, is Ambrosia Oils v. Bank of Cyprus.42 The case concerned the constitutionality of the Debtors’ Relief (Temporary Provisions) Law 24 of 1979, which was passed in order to address the calamities that took place in 1974. In the summer of 1974, the Greek Junta government and right-wing GC paramilitaries orchestrated an unsuccessful military coup against President Makarios. A few days later, and with the pretext that it was protecting the TC and that it was exercising its rights as a guarantor power, Turkey invaded Cyprus. As a result of the Turkish invasion, a population transfer ensued and more than 200,000 Cypriots became displaced: as 165,000 GC were fleeing to safety in the south of the island, 45,000 TC trekked to the Turkish-controlled north.43 In response to these facts, Law 24/1979 provided that the right of creditors to recover debt from displaced debtors and to charge interest was suspended during the period between 1974 and 1982. The Court, deciding on the constitutionality of the Law, held that even if these provisions entailed limitations beyond the acceptable ones to the creditors’ right to property, they were justified by the doctrine of necessity. While fundamental rights should be respected ‘during a period of normality’, the exceptional circumstances that existed (and still do exist) in Cyprus because of the 1974 invasion, called for their restriction.44 Ambrosia Oils developed the doctrine of necessity in two important new ways: first, it established that the ‘Turkish invasion threatened the existence of society and social institutions with collapse’; as a result, like the events of 1963, it warranted, and in fact justified to an even greater degree than before, the use of the doctrine of necessity.45 On the face of it, this is a persuasive argument: the 1974 war resulted in an unprecedented humanitarian catastrophe, to which the state’s institutions were asked to respond. If ever there was an emergency and a necessity to address it, this was it. Nevertheless, despite the significant human cost of the Turkish invasion, there were no additional legal or institutional changes to the ones that took place in 1963 that made it even harder to comply with the Constitution. Constitutionally speaking, after the war, the Cypriot state institutions could – and should – continue operating using the same procedures and respecting the same safeguards as they did before the war. While therefore the Supreme Court was right to use the doctrine of necessity after the events of 1963, it was wrong to extend the same reasoning to those of 1974.

42 Ambrosia

Oils v. Bank of Cyprus [1983] 1 CLR 55. IDP Database (2003), 6. 44 Ambrosia Oils. 45 Ibid. 43 Global

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The second, and more fundamental, way in which the Supreme Court developed the doctrine of necessity in Ambrosia Oils was by accepting that it could be used, even if this resulted in a restriction of human rights. Failing to take into account the anti-majoritarian features that characterise human rights, the Court brushed aside concerns that Law 24/1979 resulted in undue restrictions of the right to property by reasoning that ‘[f]rom these measures everybody stood to gain.’46 The use of the doctrine of necessity in this novel, rights-limiting way becomes even more surprising when one considers that the Court was originally persuaded to rely on it in Ibrahim precisely because this was to the benefit of human rights protection, and in particular the right to a fair trial.47 Moreover, this development is also problematic in that it ignores Article 33 of the Constitution, which provides that fundamental rights shall not be subject to any restrictions other than those that are explicitly stated therein. It is the Court’s failure to take into account these considerations that has resulted in a problematic application of the doctrine of necessity, especially in cases that concern the rights of non-GC. The tendency of the judiciary to downplay the corrosive effects of the doctrine of necessity and offer less than satisfactory protection to the rights of TC was apparent from the attitude of the Supreme Court in Ibrahim itself. One of the arguments that had been presented to the Court was that the Law in question was unconstitutional because it had only been published in Greek and had not been translated in Turkish, as per the requirements of Article 3 of the Constitution. The government’s position was that it was difficult to translate official documents since Turkish-speaking officials were no longer working for the government. Of the three members of the Court, Judges Triantafyllides and Josephides quickly dismissed this as a procedural argument of little importance.48 Only Judge Vasiliades pointed to the fact that many TC still lived in the Republic-controlled areas, thus making it possible to accept the government’s argument only with the greatest of difficulties.49 Nevertheless, ultimately, he, too, dismissed the argument. At a theoretical level, the doctrine of necessity has configured into a metaconstitutional value that is the ultimate guarantor for the existence and operation of the Constitution. By consequence, the checks and balances provided for in the constitutional text are altered or set aside in the name of this meta-value, thus changing in a profound, fundamental and not always warranted for way, the original constitutional design and mechanics. The doctrine therefore, signifies a departure from the original agreement, while claiming at the same time, abidance by the spirit of the Constitution. Thus, although the Republic officially claims that it is representing all Cypriots,50 since the population under its effective control is almost exclusively 46 Ambrosia

Oils.

47 Reference was made to the fact that, due to the resignation of the international judges, there were

more than 400 cases pending, thus potentially resulting in unreasonable delays (Ibrahim). 48 Ibid. 49 Ibrahim. 50 It is because of this reason, for example, that TC vote in the European Parliament elections, irrespective of whether they reside in the RoC-controlled areas of Cyprus or not. (O ερ´ι της Eκλoγης ´

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Greek-speaking, it has become easier to marginalise and further restrict the rights of non-GC. This, coupled with the judiciary’s unwillingness to properly examine the necessity and proportionality of the use of the doctrine has resulted in an even greater unchecked limitation of the rights of TC and members of the religious minorities.

5.1 The Doctrine of Necessity and the TC’s Right to Property Perhaps the clearest illustration of the detrimental effects that the ill-application of the doctrine of necessity has had on the rights of TC emerges through the Supreme Court’s jurisprudence on the right to property. The population transfer that took place in 1974 meant that there were (empty) TC properties in areas in which the RoC government exercises effective control.51 Law 139/1991, which was promulgated to manage these properties, assigns their protection and administration to the RoC Minister of the Interior, as their ‘Custodian’.52 This arrangement does not affect the ownership, which remains de jure with the TC original owner. The Custodian, however, restricts the return to, and use of, these properties by their owners until the end of the ‘abnormal situation […] created as a result of the Turkish invasion’.53 The enforcement of this Law has prompted a number of applications before the Supreme Court by TC owners wishing to challenge its constitutionality and alleging a violation of their right to property.54 The Supreme Court has consistently rejected these applications basing its reasoning on the doctrine of necessity. The authority for the proposition that the doctrine can limit the property rights of TC, which has been cited in subsequent challenges since, is Solomonides v. Minister

των Mελων ´ τoυ Eυρωπα¨ικo´ Koινoβoυλ´ιoυ N´oμoς (10(I)/2004), o´ πως τρoπoπoιηθηκε ´ απ´o τoν 35(I)2014 [The Election of Members of the European Parliament Law (10(I)/2004), as amended by 35(I)2014)].). 51 While Cyprus remains a single recognised state, the European Court of Human Rights (ECtHR) has confirmed that the RoC is only in effective control of, and therefore legally responsible for, the south of the island. The north of the island is under the military, economic and political control of Turkey. (Loizidou v. Turkey (Preliminary Objections) (1995) 20 E.H.R.R. 99.). 52 O περ´ι Toυρκoκυπριακων ´ εριoυσιων ´ (ιαχε´ιριση και 'Aλλα šματα) (ρoσωρινšς ιαταξεις) ´ N´oμoς [The Law Concerning Turkish-Cypriot Properties (Administration and Other Matters) (Temporary Provisions)] 139/1991. 53 Ibid., Section 2. 54 See, for example, Ahmet Mulla Suleyman (Mšσ ω τ ης Π ληρεξ o ´ σ ιoυ Aντ ιπ ρ oσ ωπ ´ oυ τ oυ Sahiba Ahmet Suleyman) v. Kυπ ριακ ης ´ Δημoκρατ ι´ας, μšσ ω (1) Υ π oυργ o´ Eσ ωτ ερικ ων ´ (Υ π o´ τ ην Iδι´oτ ητ α τ oυ Kηδεμ´oνα Toυρκ oκυπ ριακ ων ´ Π εριoυσ ιων), ´ (2) Διευθυντ η´ Υ π ηρεσ ι´ας Διαχε´ιρησ ης Toυρκ oκυπ ριακ ων ´ Π εριoυσ ιων ´ (2007) 4A A.A. 312 [Ahmet Mulla Suleyman v. the Republic of Cyprus, through (i) the Minister of the Interior as the Custodian of Turkish-Cypriot properties; and (ii) the Director of Management of Turkish-Cypriot properties (2007) 4A CLR 312].

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of the Interior as the Custodian of Turkish Cypriot Properties.55 The Court, adopting a prima facie liberal approach, started by declaring that there can be no question of subjecting, during a period of normality, the fundamental rights and liberties guaranteed in Part II of the Constitution to any limitations or restrictions other than those provided in such Part, in a manner contrary to Article 33 of the Constitution.56

Like in Abrosia Oils however, it went on to add that the situation that exists in Cyprus since 1963, and more so since 1974, is not normal. As a result of this abnormal situation, the State, through the Custodian, had the duty to take measures in order to protect the properties of TC, which laid abandoned.57 According to the Court therefore, the doctrine of necessity not only justified, but in fact mandated the restriction of TC’s property rights. Nevertheless, three gaps in the Court’s reasoning have led to a problematic application of the doctrine of necessity, with detrimental consequences for the well-being of the property right-holders. The first lies with the fact that although the Court in Solomonides accepted the paternalistic argument that it was necessary to restrict TC’s rights for their own protection, it never made clear what these properties were being protected from. In turn, this lack of clarity has made it very difficult for the Court to engage in a proportionality analysis. Thus, even if it could be accepted that it was necessary to protect TC properties, the Court never seriously questioned whether Law 139/1991 achieved this objective. Moreover, even if the Custodian was indeed the best institution to protect the properties in the absence of their owners, it was never explained why this remained the case, even after they declared their wish and ability to take up this responsibility themselves. These questions became increasingly difficult to answer when the Supreme Court accepted in a subsequent case, that Law 139/1991 was justified under the doctrine of necessity, not only because it protected TC properties, but also because it was in the interest of GC displaced people, who were housed there.58 The argument here is not that the Court’s ultimate conclusion in Solomonides was necessarily wrong. It might indeed be the case that restricting the TC’s property rights was both a necessary and proportionate response. However, the Court’s open-ended reasoning in reaching this conclusion was unpersuasive because it did not explain why this was the case. It did not clarify whether Law 139/1991 sought to protect the interests of TC or GC and, crucially, it did not question whether these two objectives contradicted with each other. In turn, this made it even more difficult to delineate and tightly control the restriction of the right to property in subsequent cases, with even more detrimental effects for the right holders themselves. The second problem with the Court’s reasoning in Solomonides relates to the claim that the doctrine’s restrictions on the right to property were proportionate 55 Σ oλoμων´ιδης

ν. Υ π oυργ o´ Eσ ωτ ερικ ων ´ ως Kηδεμ´oνα Toυρκ oκυπ ριακ ων ´ Π εριoυσ ιων ´ (2003) 1B A.A. 1275 [Solomonides v. Minister of the Interior as the Custodian of Turkish-Cypriot properties (2003) 1B CLR 1275]. 56 Ibid. [authors’ translation]. 57 Solomonides. 58 Suleyman.

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because they were temporary, imposed only until the end of the abnormal situation.59 However, in reaching this conclusion, no acknowledgement was made of the fact that Solomonides was decided in 2003, some 40 years after Ibrahim. While the judiciary was justified in considering the doctrine a temporary measure in the 1960s and 1970s, as the decades passed, this argument became less persuasive. Arguably, the Court could have upheld the constitutionality of the Custodian’s powers by reasoning that the limitation of the right to property was necessary and proportionate for the public interest, without invoking the doctrine of necessity, and its temporary nature, at all. Therefore, the judges’ decision to rely on the doctrine, rather than Article 33 of the Constitution, potentially detracted from, rather than enhanced, the persuasiveness of their argument. The final criticism of Solomonides concerns the Court’s assertion that the restriction on the applicants’ rights was a minor one because TC remain the legal owners of their properties; accordingly, all the Law is doing, is limiting the way in which this legal right can be used by them.60 However, this is an artificial way of conceptualising the problem since the Law prevents the owner from legally residing, selling, renting, mortgaging or, in fact, using the property in any way at all; the only thing that s/he retains is a property title on paper.61 Thus, when making this argument and relying on the doctrine of necessity, the Court did not satisfy the required rigorous observance of the principles of proportionality. Rather, it impliedly accepted that the continuing occupation of the northern part of Cyprus suffices as a justification for the introduction and validity of the impugned Law and failed to consider the RoC’s obligation to seek new mechanisms to avoid the deprivation of the effet utile of the right.62

5.2 The Doctrine of Necessity and the Rights of Religious Minorities The unchecked use of the doctrine of necessity does not only operate to the detriment of the rights of TC, but also of the members of the three religious minorities. As mentioned already, Maronites, Armenians and Latins had to assert their citizenship by joining one of the two larger communities. Since all three groups opted for membership in the GC community, they were given the right to be represented in the GC Communal Chamber.63 This Chamber, like its TC counterpart, was made up of 20 members of the House of Representatives and had the authority to decide on 59 Solomonides. 60 Ibid. 61 Hadjigeorgiou

(2013), 103. challenges of the Custodianship legislation eventually reached the ECtHR (Kazali v. Cyprus (App no 49247/08) (ECtHR, 6 March 2012)), which found the case inadmissible due to the applicants’ failure to exhaust domestic remedies. 63 Constitution, Article 109. 62 TC

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matters that were of particular importance to each community, such as religion and education.64 By being allowed to participate in one of the two Communal Chambers, the representatives of the three religious minorities could be easily consulted as to whether proposed legislation was contrary to the interests of their members. While the TC Communal Chamber ceased to exist in 1963 after the withdrawal of its members from the House of Representatives, the GC one continued with business as usual until 1965, at which time its members voted to dissolve it. Representatives of the religious minorities had a right to be consulted during the proceedings of the Communal Chamber, but did not have any voting rights65 ; the Chamber’s selfdissolution therefore, was exclusively the decision of its GC members. As a result of this decision, the (GC) House of Representatives decided to allocate the Chamber’s powers partly to itself and partly to a newly formed Ministry of Education.66 The Supreme Court has ruled on several occasions that the self-dissolution of the GC Communal Chamber was justified under the doctrine of necessity.67 Yet, this is a surprising conclusion considering that the GC Communal Chamber did not consist of any TC and it could – and in fact did – continue operating even after the events of 1963.68 When deciding on the matter, the Court has limited itself to declaring that the House of Representatives has relied on the doctrine of necessity. Yet, it has not engaged in even a rudimentary assessment of whether the criteria set out in Ibrahim have been satisfied. Moreover, the Court has never mentioned, let alone evaluated using the Ibrahim proportionality test, how the dissolution of the Communal Chamber has affected the interests of the Maronites, Armenians and Latins, who were relying on it to communicate their views. Nowadays, the three religious groups can each elect one person to the House of Representatives, a much larger body than the Communal Chambers were, and one where their voices are more likely to be drowned out by those of the majority.69 Moreover, since 2011 the representatives have been given the right to present the views of their respective groups to any public body of the RoC.70 However, they cannot cast a vote or address the House of Representatives, a fact that leaves them with no effective political power and marginalises their role. Thus, when interviewed for the purposes of a report by Minority Rights Group International, the Maronite 64 Ibid.,

Article 87. (Boυλη´ των Aντιπρoσωπων ´ και Koινoτικα´ι υνελεσεις) ´ N´oμoς τoυ 1959 [Election (House of Representatives and Communal Chambers Law) of 1959]. 66 Mεταβ´ιβασης της 'Aσκησης των Aρμoδιoτητων ´ της Eλληνικης ´ Koινoτικης ´ υνšλευσης και περ´ι ϒπoυργε´ιoυ αιδε´ιας N´oμoς [Law concerning the Transfer of Exercise of Responsibilities of the Greek Communal Chamber and the Ministry of Education] 12/1965. 67 Cypiom Ltd. v. Aσ τ υν oμ´ιας (2003) A.A.. 459 [Cypiom Ltd v. Police [2003] 2 CLR 459]. See also Georghiades v. The Republic [1966] 3 CLR 252; President of the Republic v. House of Representatives [1985] 3 CLR 2801; Π ρ o´ εδρ oς τ ης Δημoκρατ ι´ας ν. Boυλης ´ τ ων Aντ ιπ ρ oσ ωπ ´ ων [1994] 3 A.A.. 167 [President of the Republic v. House of Representatives [1994] 3 CLR 167]. 68 This argument was put to the Court in Cypiom (ibid.), but the Court did not address it at all. 69 O περ´ι ρησκευτικων ´ Oμαδων ´ N´oμoς [Law on Religious Groups] 58/1970. 70 Tρoπoπo´ιηση 66(I)/2011 τoυ ρησκευτικων ´ Oμαδων ´ (Eκπρoσωπηση) ´ N´oμoυ 58/1970 [Amendment 66(I)/2011 of Law 58/1970 concerning Religious Groups (Representation)]. 65 Eκλoγης ´

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representative regretted the fact that decisions on affairs affecting his group were taken even before he had been consulted.71 While the doctrine of necessity did not have such a direct role in limiting the rights of religious minorities as it had with the property rights of TC, it was still used to legitimise a decision that made the consultation requirements included in the Constitution, which were intended to safeguard their interests, a lot less effective.

6 Using Bicommunality as a Sword While the Cypriot Constitution is in theory a very rigid one, in practice the doctrine of necessity has been used to depart from its strict letter and allow it to reflect the changing political situation on the ground since 1963.72 The extensive use of the doctrine by the legislature and its unchecked application by the judiciary have resulted in a considerable interference with the rights of non-GC. Yet, the Supreme Court has maintained that such departures from constitutional protections are necessary for the continued survival of the State. At the same time, neither the Supreme Court nor the executive have been as quick to depart from the letter of the Constitution or extensively use the doctrine of necessity when this would have led to the protection, rather than restriction, of these groups’ members’ rights. This has resulted in a double standard with state authorities oscillating between strictly adhering to, and virtually ignoring the Constitution, depending on the political background of each case. The first example of this contradictory application of the doctrine concerns the right of TC to vote in all elections of the Republic. The 1960 Constitution, with its emphasis on the protection of GC and TC, included quotas and reserved seats for the elected representatives of the two communities.73 In order to make their election possible in practice, it called for the creation of two electoral rolls – one for GC and the other for TC voters.74 When the Vice-President and TC members of the House of Representatives left their positions in 1963, and the Supreme Court decided that the Republic could operate without them, the TC electoral roll became obsolete and stopped being used.75 Conversely, over the years, its GC counterpart came to include, in addition to the GC and members of the three religious minorities, all naturalised citizens of the Republic. It is in light of these facts, that one applicant, a Cypriot citizen residing in the areas controlled by the Republic and belonging to the Turkish community, requested his registration to the GC electoral roll. The argument was that the applicant’s continued registration in the TC electoral register, coupled with the fact that that this remained inactive since 1963, essentially resulted in his 71 Kyriakou

and Kaya (2011). ‘basic articles’ of the Constitution, which can never be amended, are listed in Article 182 and Annex III of the Constitution. 73 Constitution, Articles 46, 62, 123 and 130. 74 Constitution, Article 94. 75 Aziz, para 26. 72 The

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disenfranchisement. His request was rejected by the Minister of the Interior, who chose to adhere to the obsolete constitutional provisions, thus signaling in essence that the applicant was an equal citizen of the Republic only on paper. The case eventually reached the Supreme Court where the applicant argued that since there was for all intents and purposes a single electoral roll in the Republic, it would be a violation of his right to vote under Article 31 of the Constitution, if he was not allowed to register.76 He accepted that his request was contrary to the letter of the Constitution, but contended that departing from it could be justified using the doctrine of necessity. The Court, rather surprisingly considering its extensive use of the doctrine in the TC right to property cases, rejected the application by using two arguments. The first focused on the fact that the Constitution already provided mechanisms through which TC could be allowed to vote.77 Little attention was paid to the substance of the applicant’s claim, namely that these mechanisms had not been used – and indeed could not have been used because of the application of the doctrine of necessity – since 1963. While in its right to property case law the Court did not refer to the need to maintain the bicommunal character of the Constitution, here it was quick to point out that ‘the right to vote is directly related to the communal provisions that provide for the creation of separate electoral rolls and separate elections for the representatives from each community.’78 The ideal of one person-one vote, the Court continued, did not allow it to amend the Constitution. The Court’s second argument related directly to the doctrine of necessity. It held in essence, that it was impossible to rely on this legal mechanism because the only body that could signify the existence of a need to be addressed using the doctrine, was the legislature. Since the House of Representatives was aware of the applicant’s – and others’ in a similar position – disenfranchisement, yet decided to do nothing, the judiciary could not use the doctrine of necessity on its own to fix the problem. Exhibiting a newly-found attachment to the Constitution, the Court concluded that ‘the nature of the doctrine of necessity does not intend the bending or setting aside of the Constitutional order, but only its support.’79 Thus, instead of the bicommunality provisions in the Constitution being used as a shield to protect the rights of TC, they were transformed into a sword and in effect justified the restriction of these very rights.80 It is not only the rights of TC that have been limited due to a strict adherence to the Constitution. While the RoC is a signatory to the Framework Convention for the Protection of National Minorities (FCNM), it has resisted any calls for change in the status of the three religious groups by pointing to the rigidness and unamendability of Aζ ι´ζ ν. Kυπ ριακ ης ´ Δημoκρατ ι´ας, μšσ ω Υ π oυργ ε´ιoυ Eσ ωτ ερικ ων ´ (2001) 3A A.A. 501 [Ibrahim Aziz v. Republic of Cyprus, through the Ministry of the Interior (2001) 3A CLR 501]. 77 Ibid. 78 Ibrahim Aziz [authors’ translation]. 79 Ibid., 502 [authors’ translation]. 80 The case was eventually heard by the ECtHR, which held that the disenfranchisement of TC residing in the areas controlled by the Republic on the ground of their ethnic origin constitutes both a violation of the right to vote and of freedom from discrimination (Aziz.). 76 Iμπ ραχ ι´μ

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certain constitutional provisions.81 One of the most long-standing complaints of these groups, for which the FCNM Advisory Committee has also expressed concern, is that the constitutional requirement to be considered members of either the GC or TC community, unduly restricts their right to self-identify.82 Linked to this, is the additional concern that because of this provision, the Constitution does not include effective mechanisms through which Maronites, Armenians and Latins can be effectively consulted for matters that relate to them. The Republic’s response to these criticisms, which are equally applicable to the full spectrum of different groups on the island, and not only to the three recognised minorities,83 has evolved around the argument that this state of affairs is mandated by the Constitution, which is impossible to amend due to the specific situation that exists on the island. Illustrative of this is the response of the government to the first report of the FCNM Advisory Committee, which acknowledges the restrictions on the right to self-identify, explains them through the prism of the bicommunal nature of the Constitution, yet ultimately concludes that ‘[t]he issue of affiliation cannot be a priority at present, but it could be examined in any future revision of the Constitution’.84 Such a revision however, ‘is definitely inappropriate at this point in time in view of the fact that in the case of Cyprus there are, admittedly, particular circumstances to be taken into account’85 (meaning the unresolved Cyprus issue). A similar adherence to the letter of the Constitution is recorded, even when the religious groups make mere symbolic demands that would have been easy to meet, had the political willingness been present. For example, the Latins have requested that they are referred to in a term that reflects their Roman Catholic religion more accurately.86 Similarly, the Maronites and Armenians have argued that they should be regarded as ethnic groups or national minorities rather than religious groups, since religion is not their only distinguishing characteristic.87 The FCNM Advisory Committee has noted that these demands could be met even without constitutional amendments, yet this possibility has not been entertained by the Cypriot government.88 In any case, despite the RoC’s statements to the contrary, it is possible to amend, or at least circumvent the Constitution, through the doctrine of necessity. This was the view of the Supreme Court, which, following a long saga of cases, 81 The Convention applies to the three religious groups, which are considered a ‘minority’, but not the TC because under the Constitution, they have a different status as a ‘community’. 82 FCNM Advisory Committee (2010), para 187. 83 For example, the Roma citizens of the Republic. 84 Comments of the Government of Cyprus on the Third Opinion of the Advisory Committee on the Implementation of the FCNM by Cyprus (2010), para 14. 85 Comments of the Government of Cyprus on the First Opinion of the Advisory Committee on the Implementation of the FCNM by Cyprus (2001) Concluding Remarks. 86 FCNM Advisory Committee, para 31. 87 Ibid. Maronites, Armenians and Latins are defined as ‘religious’, instead of ‘ethnic’ groups under Article 2 of the Constitution. 88 FCNM Advisory Committee. The recommendation of finding a solution through a route that does not require the amendment of the Constitution is not something that is discussed in the RoC’s response.

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concluded that the doctrine could be used to amend the Constitution itself, rather than merely pass legislation that was not in line with constitutional provisions.89 It is ironic that, rather than choosing this route, the RoC has justified the restrictions on minority rights by effectively invoking the most essential and prominent bicommunality provisions that exist in the text of the Constitution. Therefore, the practice of the RoC, taken as a whole, is arguably contradictory. On the one hand, since the proposal to amend the Constitution on the basis of the ‘13 points’, the GC political elite has mostly attempted to sideline the bicommunal facets of the Constitution by using the doctrine of necessity. On other occasions, it has invoked the very bicommunal nature of the Constitution in order to confront the criticism addressed to the State for its refusal to amend problematic constitutional provisions.

7 Concluding Remarks What emerges from the judicially sanctioned application of the doctrine of necessity is that it has often been used to provide a legal gloss for the exclusion of non-GC from the public sphere, as well as deprive them of their individual constitutional rights. Following the events of 1963 and 1974, the automatic application of the doctrine has resulted in asymmetrical results. Although on the domestic plane it was initially used as a shield, devised to safeguard the effective functioning of the institutions of the Republic, it was later transformed into a sword, serving the assertive exclusion of non-GC from participating in the structures and being protected by the laws of the RoC. At the same time, internationally, and particularly when addressing the rights of religious minorities, the doctrine has remained completely dormant with all attention being focused on the need to respect the bicommunal character of the Constitution. Especially after the failed reunification referenda for the adoption of a UN-sanctioned comprehensive peace settlement,90 the feeling of ownership of the Republic has been on the rise within the GC community, which has lent support to the phenomena described above.91 In this sense, (GC) President Papadopoulos’ statement on the eve of the referenda is both telling and emblematic of this turn: ‘I was given an internationally recognised state. I am not going to give back a community’.92 In Cyprus’ case, monopolising power and dominating the law were conflated into a single mechanism and were inextricably linked to each other. Arguably, the majority’s attempt to rid of the ‘dysfunctional’ parts of the 1960 Constitution by sidelining the principle of bicommunality, initially through the ‘13 points’, was later transformed into the doctrine of necessity. In other words, the doctrine was not a value-free judicial choice made in the course of the criminal proceedings for the Ibrahim case, but the 89 Koυλoυντ η´

v. Boυλη´ τ ων Aντ ιπ ρ oσ ωπ ´ ων και 'Aλλων (1997) 1 A.A. 1026 [Koulounti v. House of Representatives and Others (1997) 1 CLR 1026]. 90 UN Secretary-General (2004), para 72. 91 Loizides (2007), 172. 92 Televised speech of the President of the Republic, Tassos Papadopoulos (2004).

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continuation of the politics of ethnic antagonism by other means. The doctrine of necessity has indeed served the existence and effective operation of the institutions of the Republic, but it has also provided a justification for the implicit claim over the whole Republic by the GC political elite.93 Little, if any, of these problems concern, or are even noticed by, the average GC. The Constitution and the practices that stem from it ‘though illiberal, [are] experienced as liberal by those who benefit from’ them.94 This state of affairs has gone unnoticed, undiscussed and unchallenged for so long precisely because it has, slowly but surely, entrenched the position, power and sense of entitlement of the majority.

References Journals and Articles Constantinou C (2008) On the Cypriot states of exception. Int Polit Soc 2:145–164 Hadjigeorgiou N (2013) Case note on Kazali and Others v. Cyprus. Cyprus Human Rights Law Rev 2:103–112 Loizides N (2007) Ethnic nationalism and adaptation in Cyprus. Int Stud Perspect 8:172–189 Özersay K (2004–2005) The excuse of state necessity and its implications on the Cyprus conflict. Perceptions 9:31–71

Books and Chapters Adamides C, Constantinou C (2012) Comfortable conflict and (Il)liberal peace in Cyprus. In: Richmond O, Mitchell A (eds) Hybrid forms of peace: from everyday agency to post-liberalism. Palgrave Macmillan, Houndmills, pp 242–259 Crawford J (2006) The creation of states in international law, 2nd edn. Oxford University Press, Oxford De Smith SA (1964) The new commonwealth and its constitutions. Stevens & Sons, London Drousiotis M (2008) The first partition: Cyprus 1963–1964. Alfadi Publications, Nicosia Emilianides A (2013) Cyprus. Wolters Kluwer, Surrey Kelsen H (1961) General theory of law and state. Russell and Russell, New York Kymlicka W (1995) Multicultural citizenship: a liberal theory of minority rights. Clarendon Press, Oxford Necatigil Z (1993) The Cyprus question and the Turkish position in International law. OUP, Oxford Pikis G (2006) Constitutionalism—human rights—separation of powers: the Cyprus precedent. Martinus Nijhoff, The Hague Polyviou P (2015) Cyprus—a study in theory, structure and method of the legal system of the Republic of Cyprus. Cryssaffinis & Polyviou, Nicosia Soulioti S (2006) Fettered independence: Cyprus 1878–1964. University of Minnesota Press, Minneapolis 93 Constantinou

(2008), 145. Similarly, Kuo M-S (2020) in this volume makes the case that “The ‘state of exception’ appears to be turning into a permanent condition […]”. 94 Adamides and Constantinou (2012).

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Judgments by Cypriot Courts Adrian Holdings Ltd v. The Republic [1999] 3 CLR 828 Ahmet Mulla Suleyman (Mšσω της ληρεξoσιoυ ´ Aντιπρoσωπoυ ´ τoυ Sahiba Ahmet Suleyman) v. Kυπριακης ´ ημoκρατ´ιας, μšσω (1) ϒπoυργo´ Eσωτερικων ´ (ϒπ´o την Iδι´oτητα τoυ Kηδεμ´oνα Toυρκoκυπριακων ´ εριoυσιων), ´ (2) ιευθυντη´ ϒπηρεσ´ιας ιαχε´ιρησης Toυρκoκυπριακων ´ εριoυσιων ´ (2007) 4A A.A. 312 [Ahmet Mulla Suleyman v. the Republic of Cyprus, through (i) the Minister of the Interior as the Custodian of TurkishCypriot properties; and (ii) the Director of Management of Turkish-Cypriot properties (2007) 4A CLR 312] Alloupas v. National Bank of Greece (1983) 1 CLR 55 Ambrosia Oils v. Bank of Cyprus [1983] 1 CLR 55 Bagdassarian v. Electricity Authority of Cyprus (1968) 3 CLR 736 Chimonides v. Manglis (1967) 1 CLR 125 Cypiom Ltd. v. Aστυνoμ´ιας (2003) A.A.. 459 [Cypiom Ltd v. Police [2003] 2 CLR 459] Georghiades v. The Republic [1966] 3 CLR 252 Iμπραχ´ιμ Aζ´ιζ ν. Kυπριακης ´ ημoκρατ´ιας, μšσω ϒπoυργε´ιoυ Eσωτερικων ´ (2001) 3A A.A. 501 [Ibrahim Aziz v. Republic of Cyprus, through the Ministry of the Interior (2001) 3A CLR 501] Koυλoυντη´ v. Boυλη´ των Aντιπρoσωπων ´ και 'Aλλων (1997) 1 A.A. 1026 [Koulounti v. House of Representatives and Others (1997) 1 CLR 1026] Nικoλαoυ ´ και αλλων ´ v. Nικoλαoυ ´ και αλλoυ ´ (1992) 1 CLR 1338 [Nicolaou and Others v. Nicolaou and Other (1992) 1 CLR 1338] ρ´oεδρoς της ημoκρατ´ιας ν. Boυλης ´ των Aντιπρoσωπων ´ [1994] 3 A.A.. 167 [President of the Republic v. House of Representatives [1994] 3 CLR 167] President of the Republic v. House of Representatives [1985] 3 CLR 2801 oλoμων´ιδης ν. ϒπoυργo´ Eσωτερικων ´ ως Kηδεμ´oνα Toυρκoκυπριακων ´ εριoυσιων ´ (2003) 1B A.A. 1275 [Solomonides v. Minister of the Interior as the Custodian of TurkishCypriot properties (2003) 1B CLR 1275] The Attorney-General of the Republic v. Mustafa Ibrahim and Others (1964) CLR 195 The Turkish Communal Chamber v. Council of Ministers [1963] 5 CLR 59

Judgments by the European Court of Human Rights Aziz v. Cyprus (2005) 41 E.H.R.R. 11 Kazali v. Cyprus (App no 49247/08) (ECtHR, 6 March 2012) Loizidou v. Turkey (Preliminary Objections) (1995) 20 E.H.R.R. 99

Other Judgments Re Manitoba Language Rights [1985] SCR 721 [Canada] Mokotso and Others v. King Moshoeshoe II and Others, 5 Aug. 1988, (1992) 90 ILR 427 [Lesotho] Mitschell and Others v. Director of Public Prosecutions and Another 45 (1986) LRC 86 [Grenada] Bhutto v. The Chief of the Army Staff and the Federation of Pakistan PLD 1977 SC 710 [Pakistan]

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Other Constitution of the Republic of Cyprus, signed on 16 August 1960 Department of Statistics and Research (1963) Census of Population and Agriculture 1960. RoC Department of Statistics and Research Security Council Report, ‘UN Documents for Cyprus’ available at http://www.securitycouncilrep ort.org/un-documents/cyprus/ Global IDP Database (2003) ‘Profile of Internal Displacement: Cyprus’. Norwegian Refugee Council/Global IDP Project Kyriakou N, Kaya, N (2011) Minority Rights: Solutions to the Cyprus Conflict. London: Minority Rights Group International FCNM Advisory Committee, Third Opinion on Cyprus adopted on 19 March 2010. Strasburg. 8 October 2010 Comments of the Government of Cyprus on the Third Opinion of the Advisory Committee on the Implementation of the FCNM by Cyprus. Strasbourg. 8 October 2010 Comments of the Government of Cyprus on the First Opinion of the Advisory Committee on the Implementation of the FCNM by Cyprus. Strasbourg. 19 November 2001. Concluding Remarks UN Secretary-General (2004) Report of the Secretary-General on his Mission of Good Offices in Cyprus. New York: United Nations

Cypriot Laws O περ´ι Eκλoγης ´ (Boυλη´ των Aντιπρoσωπων ´ και Koινoτικα´ι υνελεσεις) ´ N´oμoς τoυ 1959 [Election (House of Representatives and Communal Chambers Law) of 1959] O περ´ι Aπoνoμης ´ της ικαιoσνης ´ (oικ´ιλες ιαταξεις) ´ N´oμoς τoυ 1964, N. 33/1964 [The Administration of Justice (Miscellaneous Provisions) Law 33/1964] O περ´ι Mεταβ´ιβασης της 'Aσκησης των Aρμoδιoτητων ´ της Eλληνικης ´ Koινoτικης ´ υνšλευσης και περ´ι ϒπoυργε´ιoυ αιδε´ιας N´oμoς [Law concerning the Transfer of Exercise of Responsibilities of the Greek Communal Chamber and the Ministry of Education] 12/1965 O περ´ι ρησκευτικων ´ Oμαδων ´ N´oμoς [Law on Religious Groups] 58/1970 Tρoπoπo´ιηση 66(I)/2011 τoυ ρησκευτικων ´ Oμαδων ´ (Eκπρoσωπηση) ´ N´oμoυ 58/1970 [Amendment 66(I)/2011 of Law 58/1970 concerning Religious Groups (Representation)] O περ´ι Toυρκoκυπριακων ´ εριoυσιων ´ (ιαχε´ιριση και 'Aλλα šματα) (ρoσωρινšς ιαταξεις) ´ N´oμoς [The Law Concerning Turkish-Cypriot Properties (Administration and Other Matters) (Temporary Provisions)] 139/1991 O περ´ι της Eκλoγης ´ των Mελων ´ τoυ Eυρωπα¨ικo´ Koινoβoυλ´ιoυ N´oμoς (10(I)/2004), o´ πως τρoπoπoιηθηκε ´ απ´o τoν 35(I)2014 [The Election of Members of the European Parliament Law (10(I)/2004), as amended by 35(I)2014)] ρ´oεδρoς της ημoκρατ´ιας ν. Boυλης ´ των Aντιπρoσωπων ´ [1986] 3 CLR 1439 [President of the Republic v. House of Representatives [1986] 3 CLR 1439]

Dr. Nasia Hadjigeorgiou is an Assistant Professor of Transitional Justice and Human Rights at the University of Central Lancashire (Cyprus campus). Her research focuses on the protection of human rights in post-violence societies. She has published several articles, among them in the Cambridge Yearbook of European Legal Studies and the European Human Rights Law Review, edited a volume on Identity, Belonging and Human Rights (Brill, 2019) and is the author of Protecting Human Rights and Building Peace in Post-violence Societies: An Underexplored Relationship (Hart Publishing, 2020).

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Nikolas Kyriacou holds an LL.M. from the University of Leiden and a Ph.D. from the EUI. His doctorate thesis was on the practice of enforced disappearances, viewed from an international human rights law perspective. He worked in private practice as human rights lawyer and as lawyer for the government of Cyprus. Currently, he works as legal administrator at the Court of Justice of the EU.

Constitution-Making and Constitutional Change

Introduction: Constitution-Making and Constitutional Change Tom Gerald Daly

Abstract All moments of profound constitutional change are extraordinary: the choice to replace or overhaul an existing text may be spurred by a variety of circumstances, including perceived failure of a previous iteration of the state, the end of an authoritarian regime, the cessation of internal or inter-state conflict, a ‘coming together’ of various political units into a larger federal entity, or conversely, secession of one unit from a larger state. All produce a highly charged political environment, which inevitably impacts the constitutional reform process. The chapters in this section, throwing open a window onto this subject in its theoretical, legal, political, and comparative complexity, emphasise that moments of wholesale constitutional renewal under extreme conditions render what is already a difficult and complex process a legal, political, social, practical and logistical challenge of the highest order.

This section addresses the process of constitution-making and constitutional transformation under extreme conditions. Of course, all moments of profound constitutional change are extraordinary: the choice to replace or overhaul an existing text may be spurred by a variety of circumstances, including perceived failure of a previous iteration of the state, the end of an authoritarian regime, the cessation of internal or inter-state conflict, a ‘coming together’ of various political units into a larger federal entity, or conversely, secession of one unit from a larger state. All produce a highly charged political environment, which inevitably impacts the constitutional reform process. Yet, the conditions under which a new constitution is produced may be viewed as lying on a spectrum, from overall stability to serious and multi-dimensional instability. At one end of the spectrum we have, for instance, constitution-making in postfinancial crisis Iceland in 2010–13 or preparations for the constitution of an independent Scotland in 2014 – both of which drew on firmly rooted democratic constitutional T. G. Daly (B) Melbourne School of Government, Melbourne, Australia e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_19

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traditions, an entrenched culture of political deliberation, and an overall context of peace. Located much farther down the spectrum we have, today, the stymied process of major constitutional reform in post-war Sri Lanka, with its fragile peace and unresolved ethnic tensions,1 the contested constitution-drafting process in the Philippines, proceeding alongside a peace process to end a long insurgency in the south, a ‘war on drugs’ that has seen thousands killed, and sustained government attacks on the country’s democratic institutions,2 or the ‘peace-at-any-cost’ approach to drafting a constitution for Libya, in a context where rival governments and dozens of militias compete for legitimacy and control over resources, provoking an intense humanitarian crisis that has seen hundreds of thousands internally displaced, many more lacking access to basic services, and civilians subjected to extrajudicial executions and sieges.3 The latter examples are extreme instances, but underscore the reality that the conditions for achieving significant constitutional change are often far from ideal. As Manar Mahmoud observes in her chapter on Tunisia and Egypt, contemporary framing of constitutional change tends toward the idealistic notion of “the opportunity to create a new future” despite the often severe practical challenges in reaching that future, or even agreeing on what it should look like. This echoes David Landau’s caution elsewhere: “Constitution-making moments should not be idealized; they are often traumatic events.”4 Moreover, as the chapters herein suggest, such periods of fundamental transformation can be fraught with danger by reopening the constitutional settlement, possibly to the advantage of enemies of constitutionalism.5 The chapters in this section, throwing open a window onto this subject in its theoretical, legal, political, and comparative complexity, emphasise that moments of wholesale constitutional renewal under extreme conditions render what is already a difficult and complex process a legal, political, social, practical and logistical challenge of the highest order. Andreas Braune’s leading chapter, on constitution-making in the name of democracy, provides a useful theoretical and historical framing for the country-specific studies that follow, and poses a number of fundamental questions: Who should get to make or amend the constitution? Does founding a new constitutional settlement require dispassionate, paternalistic, even non-democratic intervention? Do extreme conditions change our answers to these questions? In the following chapter Fatih Öztürk’s analysis underscores just how complex our understandings of ‘true’ democracy can be in the face of strong élite veto actors, as well as the need to appreciate the historical context of reforms – a challenge I faced firsthand while working in Turkey for the Council of Europe. Mahmoud’s analysis of 1 See

e.g. the website of the Centre for Policy Alternatives (CPA), a key policy actor in the constitutional reform process: http://www.cpalanka.org/. 2 See e.g. Thompson (2016). 3 See Al-Ali Z (2017) Report: Libya’s final draft constitution – A contextual analysis. 4 October 2017 http://bit.ly/2BZsyRd. See generally ‘Libya’ in Human Rights Watch, World Report 2018: Events of 2017 (Human Rights Watch, 2017). 4 Landau (2012). 5 See Andreas Braune’s chapter below. See also Partlett (2012).

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constitution-making processes in Tunisia and Egypt underlines the crucial impact of political constellations and attitudes to constitutionalism on the process, while Ricardo Sousa da Cunha’s chapter on security reform in East Timor demonstrates the path-dependent impact of certain constitutional choices as constraints on State actors, and how different modes of constitutional practice can give the constitution ‘teeth’. This introduction cannot cover all aspects of the chapters to follow. Instead, it picks out two trends in contemporary constitution-making processes, which have gathered pace in recent decades, and which are raised in different ways by the chapters here. The first is a greater focus on public participation as a core source of constitutional legitimacy (‘inclusiveness’). The second is the increasing role of international actors in domestic constitution-making and amendment (‘internationalisation’). Taking each trend in turn, first, the increasing focus on public participation in constitution-making and constitutional change has developed to the point that it has been described as “a new norm”.6 In this section, the issue arises in Braune’s sustained critique of the orthodox position that, in order to be legitimate, the founding of a democratic constitution must itself be democratic in nature. It also arises more concretely in Mahmoud’s chapter in the comparison between the Tunisian constitution-drafting process, where political fragmentation produced a dynamic toward consensus-seeking and the design of the constituent assembly and input of civil society actors ensured an inclusive process, and the Egyptian experience, where the dominance of one political force produced a top-down, zero-sum, winner-takesall approach to the exercise, excluding women, Coptic Christians, students, and trade unions (and in the second drafting process, Islamist political forces). It is understandable that the participation norm holds significant intuitive appeal, as a way to bolster the perceived legitimacy of the constitutional change and its connection to all sectors of society, and as a form of deliberative process that can serve as a good model for political deliberation under the new constitution.7 Highly exclusionary drafting processes, such as Egypt’s processes or Hungary’s “iPad Constitution” of 2011 (so-called because the drafting process was so opaque that at one point the only detail known was that it had been partly drafted on an iPad8 ), have rightly been criticised for making no real attempt to consult the public, reflect areas of overlapping societal consensus, or produce a text over which all sectors of society can feel ownership. However, despite its potential benefits in many contexts, the ascendancy of the participation norm nevertheless raises a host of questions that are acutely problematic, especially in the context of constitutional transformation under extreme conditions. First, the very question of public participation implies a need to identify who ‘the people’ are. In some states this is relatively straightforward: as Sousa da Cunha’s chapter on East Timor indicates, successive experiences of defending the territory 6 See

chapter 1, Saati (2017). See also e.g. Gluck and Brandt (2015). e.g. Suteu (2015). 8 See e.g. ‘Hungary’s iPad Constitution’ Common Sense Society 11 March 2011 http://bit.ly/2GK MkDz. 7 See

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(and cultural expressions of that experience) forged a common identity where previously none existed. As Mahmoud observes, producing a new constitution (or constitutional settlement) is commonly viewed as one way of reconciling different peoples within the state and forging a common identity. However, Mahmoud also recognises the “problematization of the constitutional identity of the society”. In some states, especially those with serious ethnic, religious or national cleavages, addressing the very question of who ‘the people’ is – as a necessary precondition to ensuring an inclusive constitutional transformation process – may lead to contestation that could overwhelm the constitution-making or amendment process as a whole. This is especially so where recognition of separate peoples or nations within the state is viewed as a threat to the legitimacy or continued existence or nature of the state itself. It can also arise in other contexts, such as involvement of a diaspora and recognising multiple constituent peoples. At a practical level, in some contexts, and for a variety of reasons, the state may also simply lack the capacity to ensure a fully inclusive process, as a recent book on public participation in African constitution-making and amendment processes recounts.9 For instance, the overlapping security, social and political crisis in Libya placed severe constraints on the possibility of a widely inclusive constitution-drafting process by the Constitution Drafting Assembly (CDA), with a particular impact on the participation of women.10 In Egypt, as Mahmoud’s chapter discusses, the stifling of political participation under the ancien régime left an “unbalanced” political landscape in which parties aligned with swathes of the electorate of a secular disposition were far less able to effectively represent their interests than parties of an Islamist cast, unlike the more balanced Tunisian political landscape. More generally, in highly challenging socio-political contexts, an excessive focus on inclusiveness in the constitutional reform process could render the attempt to seek consensus even more difficult, may frustrate necessary élite bargaining, may provide ammunition for ‘spoilers’ (i.e. actors who refuse to engage in the process and attempt to destabilize it through violence) to deny the legitimacy of a text whose content is generally approved and whose ownership is adequately broad-based, or may be overtaken by ‘ordinary’ politics (as seen in Kenya’s constitutional referendum of 2005, where a popular referendum scuppered a new constitution due to a lack of confidence in the sitting government).11 There is also some evidence for the contention that, depending on how such input is managed, significant public participation may hamper the quality of the resulting constitution. The 250-article Brazilian Constitution of 1988, for instance, drafted through a highly inclusive process, is a bloated text stuffed with promises, rights, policy statements and serious contradictions.12 9 Abbiate

et al. (2017). Hammady (2017). 11 See Ojielo (2013). 12 As Oscar Vilhena Vieira states: “The participation of social movements, civil society organisations and interest groups was massive. More than 20 000 people circulated through the [Constituent] Assembly every day, in a process that is considered the most democratic moment of Brazilian political life.” Vilhena Vieira (2013). 10 See

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The final popular approval of the text by referendum can leave a sense of contested legitimacy, as seen in the thin 52% margin by which the reform package ushering in a system of strong presidentialism in Turkey was passed, discussed here by Öztürk. This is not in any way to argue that constitution-making and amendment under extreme conditions should simply be left exclusively to élites, or more narrowly, the government of the day. However, it also appears important to avoid elevating public participation to the status of a rigid principle, especially in the context of extreme conditions. Rather, it appears sensible to recognise that participation should be pursued only where it does not lead to greater conflict in the process of constitutional transformation or threaten the entire project, can be adequately inclusive (and not only partially inclusive or based on ‘cherry-picking’ of participants), and where input is properly channelled toward, and balanced alongside, expert drafting (which may be provided by a range of domestic and international actors). It certainly should not overwhelm or obscure other principles, not least the need for a coherent constitutional text that is workable, realistic, and which addresses the very particular challenges faced in the state. As Cass Sunstein has argued, in any state “a constitution should be ‘negative’ in the sense that it should be directed against the deepest risks in the relevant nation’s political culture”, which is a crucial insight for constitutional transformation under extreme conditions, and which speaks to Braune’s focus on output-legitimacy as well as input-legitimacy.13 It suggests a very careful balancing of internal and external expertise and knowledge, as well as public involvement. The last two points, in referring to the actors involved in constitutional transformation, raises the second trend on which the chapters in this section prompt reflection: namely, increasing international involvement in constitution-making and amendment. This trend is raised, albeit in an oblique manner, in Braune’s discussion of the external legislator as a framer of the constitution being a central element of Aristotelian political theory, and more generally, his reference to “the necessity of some anchor point outside the sovereignty of the demos and its constituent power”. As a practical reality, as Mahmoud observes, such engagement has become the norm. This is particularly obvious in the intervention of intergovernmental bodies such as the International Institute for Democracy and Electoral Assistance (International IDEA) and the United Nations (UN), but includes a much wider array of actors.14 Overlapping with such external assistance (but not interchangeable with it), there is also a discernible uptick in the migration of constitutional ideas and constitutional borrowings from elsewhere, and as Christine Bell has observed regarding post-conflict states, the ‘pull’ of international law (and international norms of constitutional law). may be particularly strong in transitional societies where a context of conflict can no longer be invoked to justify departure from international standards. Equally, the intimate oversight relationship between international institutions and such societies creates powerful incentives for such state [sic] to ‘play ball’ (or be seen to) with international legal norms.15 13 See

Sunstein (1993). Ginsburg (2017). 15 Bell et al. (2007). 14 See

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This insight holds, not just for post-conflict states, but for a variety of states embarking on significant constitutional change under extreme conditions. Indeed, of the four case-studies analysed in this section – Egypt, Tunisia, East Timor, and Turkey – the latter three are good examples of the influence of international actors and norms in constitution-making under extreme conditions. The Tunisian drafting process was shaped not only by the practical intervention of international actors – not least the Venice Commission’s opinions on the Constituent Assembly and draft text16 – but also by an openness among the drafters themselves to international norms. In East Timor, the domestic-international relationship was much more intense. The 2002 Constitution was drafted at breakneck speed under the aegis of a transitional governing body, the United Nations Transitional Administration in East Timor (UNTAET) established by a Security Council resolution following international military intervention to restore peace after conflict spurred by the Timorese vote to secede from Indonesia in 1999.17 The recent Turkish shift to a presidential system raised serious concerns from the EU and Venice Commission, the latter warning of a possible “dangerous step backwards” for democracy due to excessive empowerment of the president and “further weakening the already inadequate system of judicial oversight of the executive”.18 Of course, highly internationalised constitution-drafting processes can lead to charges of a standardised “cookie-cutter” approach to constitution-making. That said, what looks like cookie-cutter language in a new constitution can have real life depending on how it is implemented. For example, Sousa da Cunha’s chapter on East Timor highlights that the reference in Article 1 of the Constitution to the “State based on the rule of law” has been invoked to place significant constraints on security forces – through the globalised device of a proportionality test (mentioned nowhere in the constitutional text) to achieve stricter scrutiny of military action. Here, we see how international influence and constitutional borrowing has been crucial in how the constitution holds up under times of severe stress. It is also interesting to note that international involvement does not necessarily go hand in hand with greater inclusiveness, and the perception of extreme conditions can be a decisive factor in how the process unfolds. While in Tunisia international involvement did support greater inclusiveness (although it seems that it was domestic actors’ preference in any case19 ), in East Timor the UN governing body’s preference for a rapid transition and installation of a new order, in which adoption of a constitution was viewed as a key milestone (and, some have argued, due to pressure from the international community to bring a costly UN mission to an end) was viewed

16 The

list of opinions is available on the Venice Commission website at http://bit.ly/2E1Clbd. the chapter ‘Overview of the Constitution-Making Process’ in Devereux (2015). 18 CDL-AD(2017)005-e Turkey – Opinion on the amendments to the Constitution adopted by the Grand National Assembly on 21 January 2017 and to be submitted to a National Referendum on 16 April 2017 (Venice, 10–11 March 2017) http://bit.ly/2n04vhN. 19 Cherif (2017). 17 See

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by civil society actors as cutting across a longer, more inclusive process in which a range of different options could be fully considered.20 Unhelpfully, there often appears to be a form of inchoate assumption among scholars and policymakers that both trends will always pull in the same direction toward more effective constitutional government and stable constitutional settlements. Indeed, a greater degree of international involvement in constitution-making may increase pressure on domestic actors to conform to the developing norm of public participation. However, these trends have significant potential to cut across one another, diminishing the effectiveness of the resulting constitutional structure as a whole. First, in terms of the fundamental capacity of the constitution to act as an accepted settlement, each trend reaches out to different sources of legitimacy, which are not necessarily compatible, or at least fully reconcilable. In terms of process and product (i.e. the resulting constitutional text), an inclusive process may result in a text that deviates from best international practice (although ‘best practice’ models are themselves problematic), while strong international involvement may tend toward the adoption of ‘best practice’ models, but may have no local ownership with élites or the people, or connection with local conceptions of public power and individual rights. Not every process will manage to blend and reconcile the resulting tensions. Second, in terms of substance, the two trends may produce a constitution lacking in coherence. By way of example, inclusiveness may tend toward a greater presence, or greater use, of direct democracy mechanisms in the constitution, whereas stronger international influence tends toward a more central status accorded to international law. This has the potential to ‘build in’ unresolved and unacknowledged tension between different sites of authority (e.g. the people, parliament, courts, and international bodies and courts) and raises again the question of who ultimately ‘owns’ the constitution. This, in turn, speaks to Braune’s discussion of the argument for a ‘constitutionalizing dictatorship’ and a deferral of true democratic ownership of the constitution in order to secure the implementation of a democratic constitution where the societal soil is not yet conducive to its flourishing. This tutelary role has tended to fall to the courts in contemporary constitution-making (which is touched on in Sousa da Cunha’s chapter, and which is also reflected in the plan to establish a strong constitutional court in the 2014 Tunisian Constitution), but in practice has rarely succeeded where excessive reliance is placed on courts.21 These are just some reflections prompted by the four chapters, which provide a host of other insights, and which each amply demonstrate not only the importance of the discussion pursued in this section, but the real need for further research in this area.

20 Devereuz 21 See

(2015). Daly (2017).

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References Abbiate T, Böckenförde M, Federico V (eds) (2017) Public participation in African constitutionalism. Routledge, London Bell C, Campbell C, Ní Aoláin (2007) Transitional justice: (re)conceptualising the field. IJLC 3(2):81, 84 Cherif N (2017) Participation in the Tunisian constitution-making process. In: Abbiate T, Böckenförd M, Federico V (eds) Public participation in African constitutionalism. Routledge, London, p 83 Daly TG (2017) The Alchemists: questioning our faith in courts as democracy-builders. Cambridge University Press, Cambridge Devereux A (2015) Timor-Leste’s bill of rights: a preliminary history. ANU Press, Canberra Devereuz A (2015) Overview of the constitution-making process. In: Devereux A (ed) Timor-Leste’s bill of rights: a preliminary history. ANU Press, Canberra Ginsburg T (2017) Constitutional advice and transnational legal order. UC Irvine JITCL 2(101):5 Gluck J, Brandt M (2015) Participatory and inclusive constitution making: giving voice to the demands of citizens in the wake of the Arab spring Hammady O (2017) The role of civil society in the Libyan constitution-making process. In: Abbiate T, Böckenförd M, Federico V (eds) Public participation in African constitutionalism. Routledge, London, p 168 Landau D (2012) Constitution-making gone wrong. Alabama L Rev 64(923):923 Ojielo O (2013) Justice versus reconciliation: the dilemmas of transitional justice in Kenya. In: Omeje K, Redeker Hepner T (eds) Conflict and peacebuilding in the African great lakes region. Indiana University Press, Bloomington, p 111 Partlett W (2012) The dangers of popular constitution-making Brooklyn. JIL 38(1):1 Saati A (2017) Participation—to unveil a myth. In: Abbiate T, Böckenförde M, Federico V (eds) Public participation in African constitutionalism. Routledge, London Sunstein C (1993) The negative constitution: transition in Latin America’. In: Stotzky I (ed) Transition to democracy in Latin America: the role of the judiciary. Westview Press, Boulder, pp 367–8 Suteu S (2015) Constitutional conventions in the digital era: lessons from Iceland and Ireland. BC ICL Rev 38(251):255 Thompson MR (2016) Bloodied democracy: Duterte and the death of liberal reformism in the Philippines. J Curr SE As Aff 35(3):39, 42 Vilhena Vieira O (2013) Descriptive overview of the Brazilian constitution and Supreme Court. In: Vilhena Vilheira O, Viljoen F, Baxi U (eds) Transformative constitutionalism: comparing the apex courts of Brazil, India and South Africa. Pretoria University Law Press, Pretoria, p 76

Tom Gerald Daly is Deputy Director of the University of Melbourne School of Government, Director of the global online research platform Democratic Decay & Renewal (DEM-DEC: www. democratic-decay.org), Co-Convenor of the Constitution Transformation Network (Melbourne), and Associate Director of the Edinburgh Centre for Constitutional Law. Recent publications include The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (Cambridge University Press, 2017).

Authoritative Constitution-Making in the Name of Democracy? Andreas Braune

Abstract As various historical examples from the French Revolution to the Arab spring show, founding a democratic polity is a tricky task. In a highly politicized situation, which is at the same time prone to violence, the constituent power of the people is easily misused or dangerously fragmented. The usurpation of power by a particular group, the re-establishment of an authoritarian order or even civil war may be the unintended consequences. On the other hand, democratic constitutions know provisions for states of exception which allow to cope with such situations with authoritative means in order to preserve the constitutional order. Why should they then be banned to create one? That might suggest that authoritative constitutionmaking could be an effective alternative to democratic constitution-making for the establishment of a well-ordered polity. This hypothesis is formulated on the basis of Aristotelian political philosophy, the theory of constitutions as rational precommitments and some aspects of the political theories of John Rawls and Jean-Jacques Rousseau. Even though it is formulated in terms of normative political theory, it is primarily meant to be an empirical hypothesis.

1 Paradoxes of Constitutionalism and Democracy The history of the relation between constitutionalism and democracy is full of paradoxes and antinomies. Even though constitutional democracies are today widely regarded as the normatively most satisfying form of government, there already lies a deep paradox in the denomination ‘constitutional democracy’. On the one side, the term democracy stands for the government of, by and for the people, which is rooted in the people’s sovereignty to govern itself (as opposed to being governed by someone else). Yet sovereignty implies unrestrained self-rule. If a people is not free to choose freely from all alternatives open at a given moment, it is not sovereign in the literal meaning of the term. On the other hand, it is exactly this notion of restraining A. Braune (B) Weimar Republic Research Center, Friedrich Schiller University Jena, Jena, Germany e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_20

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the sovereign – be it the demos or a sovereign prince – which is essential to constitutionalism. Horizontal and vertical separation of powers, institutional arrangements to slow down decision making, a bill of rights and judicial review of legislation are core features of modern constitutionalism and at the same time restraints on the demos which prevent it from doing as it pleases, from being sovereign. Conversely, “if the sovereign can change the law at will, then law cannot possibly bind or restrict the sovereign.” (Holmes 1995, 145) Being sovereign entails being legibus solutus, as early modern thinkers such as Bodin and Pufendorf emphasized. What follows for a democratic political order is a sort of zero-sum game between democracy and constitutionalism. In that zero-sum game the scope of majority rule or “the extent of equal political liberty” is dependent on “the degree to which the constitution is majoritarian. […] Whenever the constitution limits the scope and authority of majorities, […] equal political liberty is less extensive.” (Rawls 1971/1999, 197) This is the reason why proponents of radical democracy formulate fundamental objections against constitutionalism and regard its tools as essentially anti-democratic.1 In political and constitutional theory, this paradox is (seemingly) dissolved by the notion that constitutions represent a restraint on the sovereignty of the demos which it imposes on itself (just as 19th century monarchs did when they ‘accepted’ or enacted a constitution restraining their power and sovereignty). They are not imposed on the demos by some heteronomous agent but are an expression of the autonomy of the people (see e.g. Bellamy 2007, 90). In opposition to sovereignty as the ability to do as one pleases, the term autonomy refers to the ability to give oneself (auto) rules (nomoi) which one is inclined to abide to in the future. The constitution then appears to be a manifestation of the will of the demos, as self-imposed precommitments, as Stephen Holmes called it. Hence the only democratically legitimate source of constitutions lies in the constituent power of the people, both at the moment of the foundation of a polity as well as during its constitutional existence. While the constituent power of the people is widely uncontested when it comes to the founding of a polity,2 the continued existence of the constituent power of the people after that act raises the same dilemma as just described: If the demos as constituent power has the right to alter or amend the constitution at will, why should it feel bound to that constitution at all? “In relations between an individual and himself the power to bind entails the power to loose. Legally, what you freely promise yourself, you can freely fail to deliver. The same rule must logically apply to collectivities. What we the people give ourselves, we the people can take away.” (Holmes 1995, 146) The constitution is therefore nothing more than a convention of the demos which it might follow during a certain period of time, but which it can reject at any time, too. Not legally, but legitimately with recourse to its constituent power (see Michelsen 2017).

1 See

e.g. Wolin (2016). Turner (2015) tries to reconcile radical democracy with constitutionalism. there is another paradox associated to this situation: If the demos is constituted only through the act of constitution, as the French conception of the nation suggests, the question is raised who the demos is before that act. And if the demos does not exist before the act of constitution, how can it then be regarded as the agent of constitution?

2 However,

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I do not want to discuss that dilemma any further in this paper. I rather would like to come back to the rather uncontested observation that for legitimately founding a polity it is necessary to do this in the mode of the pouvoir constituant of the people. Because this is exactly what I wish to do: to contest that assumption. I will do this by exploring deeper into the nature of the act of founding by constitution-making and by referring to a specific theory of state and constitution which can best be termed as neo-idealistic. We will then see that giving a constitution in a democratic manner bears several risks for its failure and that there are certain hints that the recourse to non-democratic means of constitution-making might reduce these risks. The major argument is part of a normative theory of state and constitution and goes as follows: While the order to be established has to meet the demands known for constitutionally structured democratic polities (separation of power, rule of law & basic freedoms, some sort of majority rule, judicial review of legislation and executive action), the mode of constituting the constitution does not necessarily need to be democratic. There is some sort of output-legitimacy in constitution-making: If a democratic constitution is successfully established and applied, it is of few importance how that constitution came into being. Constitution-making can thus make use of means which are normatively incommensurable with the normative order the constitution is supposed to establish, given the recourse to these means increases the chances of a successful foundation of a constitutional democracy compared to the use of more democratic means. Constituting the constitution consists of two distinct steps: its drafting and its implementation. The heavy normative weight of popular sovereignty suggests that constitutions need both be drafted and implemented democratically. The paradigmatic forms of these two steps consist, first, in the election of a constitutional assembly under universal suffrage with the mandate to draft a new constitution3 and, second, in the acceptance of that new constitution by a poplar referendum. Both acts articulate the will of the people as sovereign and as constituent power. However, even if the implementation of a new constitution does not take the form of a popular referendum, a constitution for a democratic polity is necessarily implemented democratically. For its actual and practical implementation consists in the holding of democratic elections to its directly elected branches of government. If it is conducted peacefully and under a sufficiently high participation rate, the first parliamentary election under a new constitution can usually be seen as a tacit acceptance of the new constitution with (almost) the same implementory force as a popular constitutional referendum. While it can be regarded as successfully adopted by the demos at this moment (and the constitution-making process as formally terminated), the new constitution is not fully practically implemented yet. For the success of a democratic constitution is not discernable at the first election establishing the new political power 3 In

fact, this mode of constitution-making through representation is already non-democratic, because “der verfassunggebende Willen des Volkes kann nicht repräsentiert werden, ohne daß die Demokratie sich in eine Aristokratie verwandelt.” (Schmitt 1928, 80). (Representing the constituent will of the people leads to the transformation of democracy into aristocracy. [my translation]) To be drafted democratically in the actual sense, it would be necessary to draft it on the agora by all citizens.

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and ‘loyal opposition’, but at the first democratic, peaceful and constitutional change in power and the transformation of the old powerholders into a new loyal opposition. Only then has a democratic constitution proven to be a success. Hence, the practical implementation of a democratic constitution cannot be but democratic. Otherwise, it is not fully implemented (yet). The primary importance of distinguishing between the drafting and the implementation of a constitution lies in the possibility to open the drafting-phase for authoritative elements while a constitution can still gain democratic output-legitimacy during and after the implementation phase by making democratic use of it.

2 The Art of Constitution-Making as Law-Making So let us now take a closer look at the act of constitution-making itself, the act of drafting a constitution. What are its characteristics? What sort of action is it? From a judicial point of view, it is not an illegal act in the term’s literal meaning, but an extra-legal act. It is not illegal because at the moment the demos acts as a founding constituent power, it is not bound to preexistent legal norms. It is an extra-legal action because it creates a new “political order ex nihilo” (Preuss 2006, 365) and gives it a new legal form. This is the reason why legal positivists are troubled with this sort of action because it is not reducible to judicial categories or explicable within a legalist framework. The constitution does not derive from or is not dependent on other positive legal norms. For legal theorists with an eye for the difference between law and the political, such as Carl Schmitt (see Kennedy 2004), it was therefore clear that constitution-making by the sovereign is not a legal, but a political act. The constitution represents the expression of the political will of the people. It gives the ontological mode of being it wishes for itself a legal form (see Schmitt 1928, 20–25). Schmitt – in his unique Schmittian parlance – spoke of a “existentielle Totalentscheidung” (ibid., 24) of the demos. If it wills so, it can give a slave-owner society a constitutional form, as the framers of the US-constitution at least partially did with the constitutional compromise of 1787. In that perspective, making a constitution is a political act just as any other majoritarian decision of the people. It may establish rules which demand highly qualified majorities for its modification, but these decisions remain political in nature just as any other majoritarian decision (now, however, more or less bound to the principle of legality and constitutionality). Contrary to this view of legal theory, political theorists of a certain strand refuse to regard constitution-making as a political act. For Hannah Arendt, acting politically means speaking and acting together with others on issues of common interest within a polity which is already constituted. It is a distinctively Aristotelian view (see Aristotle, 1326a1) which puts constitution-making outside the realm of actual politics. Arendt follows Aristotle and “the Greeks” when she underlines that “the laws, like the wall around the city, were not results of action but products of making” (Arendt 1958, 194, my emphasis) and hence products of homo faber and not the zoon politicon. Designing a constitution is poiesis, not praxis. “Before men began

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to act, a definite space had to be secured and a structure built where all subsequent actions could take place, the space being the public realm of the polis and its structure the law; legislator and architect belonged in the same category.” (ibid. 194–195) Hence constitution-making is a pre-political action in that view.4 Acting politically is something different from creating a constitution. Framers and politicians and their actions are of distinct quality (see Elster 2000, 172). While only citizens of a polity are – in virtue of their citizenship – entitled to act politically, framing the constitution is not necessarily their task. The lawmaker, i.e. the constitution-maker or the legislator as a framer “was someone who had to do and finish his work before political activity could begin. He therefore was treated like any other craftsman or architect and could be called from abroad and commissioned without having to be a citizen.” (Arendt 1958, 194) The legislator is supposed to set up the institutions and a stable framework for political action. The quest for the good political order becomes a matter of an appropriate design of its fundamental laws: “Law is a form of order, and good law must necessarily mean good order.” (Aristotle, 1326a1) What follows is the assertion that political and constitutional stability in a polity are the results of a well-designed constitution (see Weingast (2006), Rasch and Congleton 2006). Conversely, badly designed constitutions fail to secure that stability (as has long and falsely been asserted for the Weimar constitution). Constitution-making in that view becomes an art or a craft which can – as any other art or craft – be done with more or less ability, competence and preciseness. A skillful legislator knows to work with the ‘material’ he finds in the future polity: its size, temper, culture, history (including its constitutional traditions where there are some) and geographic circumstances etc. He creates fundamental laws whose ‘spirit’ (Montesquieu) is in accordance with that of the inhabitants of the polity. The introduction of a non-political and possibly external legislator as a framer of the constitution is thus a central element of Aristotelian political theory. It describes this action as apolitical because political action takes place only after the basic laws of the polity are constituted. At the same time, this strand of political theory also judges this sort of constitution-making as normatively preferable. The existence of rule of law as constitutionality is preferable to its absence, because it is regarded as a safeguard against the domination of men over men and the appropriate form for a polity of free and equal citizens. “He therefore that recommends that the law shall govern seems to recommend that God and reason alone shall govern, but he that would have man govern adds a wild animal also.” (Aristotle 1287a) (Constitutional) Law is seen as the neutral set of rules which regulate social and political interaction within the polity and which guarantee the free and equal status of its citizens. If (groups of) citizens are entitled to make these laws, they can impose their particular interests on others which is destructive of political equality. In the Aristotelian view, the sovereignty of law has to replace the sovereignty of the people because its unchecked rule tends to be despotic and to suppress minorities: This is the case when “the multitude is sovereign and not the law; and this comes about when the decrees of the assembly over-ride the law. This state of things is brought about by the demagogues; 4 Critical

on that interpretation: Förster (2009), 251–272.

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for in the states under democratic government guided by law a demagogue does not arise […], but where the laws are not sovereign, the demagogues arise. […] A democracy of this nature is comparable to the tyrannical form of monarchy, because their spirit is the same, and both exercise despotic control over the better classes, and the decrees voted by the assembly are like the commands issued in a tyranny.” (ibid., 1292a) Even though this opposition between the ‘multitude’ which is “sovereign not as individuals but collectively” on the one hand, and ‘the better classes’ on the other hand reminds us of the aristocratic fear of the tyranny of the majority (from Tocqueville over Mill to Hayek), the important argument for the art of constitutionmaking is the following: We can find two different types of law in modern democratic societies: First, there are those laws which are ‘decrees of the assembly’ in Aristotle’s terms and which he would not call laws. They are products of the legislative branch of government and hence instruments of politics. In a constitutional polity they have to be formulated in accordance with the constitution and the principles of rule of law, but can – at the same time – be an expression of the political will of the democratic majority. If majorities change, they can alter these laws and ‘make politics’ through new parliamentary legislation in various fields of policy. Second, there are the basic laws of the polity which constitute the different branches of government, regulate their interaction and secure the general status of the polity’s citizens as free and equal persons (usually, through a Bill of Rights). Rousseau calls these laws “fundamental laws”5 because they determine “the relation of the whole to the whole, of the Sovereign to the State.” (Rousseau 1763/1782, 2/12) In a constitutional polity they are higherranking than political laws and describe the framework of constitutionality the latter have to respect. These fundamental laws are neutral, apolitical and at best not dependent on shifting political majorities. For if they were, political factions could mold institutional design to their advantage, suppress minorities and hence usurp power and behave despotically – a despot being someone “who usurps the sovereign power” and “who sets himself above even the laws.” (ibid. 3/10) If the political majority can alter the basic laws at will, it can transform the political order in a way which perpetuates its power position and hence abolishes the democratic competition between the majority and its loyal opposition. This is not only observable in Poland or Turkey these days, but does for instance also play a role when the majority has the right to tailor electoral constituencies. Rousseau follows that “he, therefore, who draws up the [fundamental] laws has, or should have, no right of [political] legislation.” For “the legislator occupies in every respect an extraordinary position in the State. […] This office, which sets up the Republic, nowhere enters into its constitution. […] He who holds command over men ought not to have command over the laws, he who has command over the laws ought not any more to have it over men; or else his laws would be the ministers of his passions and would often merely serve to perpetuate his injustices.” (ibid. 2/7)

5 He

also calls them political laws. However, I wish to distinguish between basic and political laws in the way described here, underlining the neutral and apolitical character of fundamental laws.

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The difference between these two types of laws – constitutional laws and political laws – is taken into account when changes of constitutional law require highly qualified majorities while absolute majorities are sufficient for passing political laws. The difference is also present in the terminological difference between legislator and legislature, the first being the actor who gives and changes the constitution, the second being the branch of government passing political laws.6 And even though both institutions are usually identical in an existent democratic polity (in contrast to Rousseau’s claim for a strict separation), we often find a symbolic differentiation depending on whether the parliament comes together as legislature or as legislator. In France for instance, Senate and Assemblée Nationale hold a joint session in Versailles under the name of Congrès du Parlement français when acting as legislator. This is supposed to show that the doing of parliament at this moment is something categorically different from its usual doing when politics are done through legislation. It does not articulate a particular political will but acts as a representative of the people’s constituent power.7

3 Ideal Constitution-Making in a Non-ideal World The main argument the Aristotelian tradition wants to make is that for the necessary distinction between politics and basic laws, i.e. constitutionalism. This separation is highly compatible with liberal constitutionalism, for a liberal constitution sets up a neutral framework for politics but does not favor one political opinion before the other or give structural preferences to one group or the other (which it fails to achieve, as its opponents from the left argue). The constitution is constitutive of equal political liberty and the institutions for its enjoyment, and not itself political. Yet constitutions and their constitutional laws have to come into being somehow. So, the question arises which procedure or which mode of constitution-making suites best for guaranteeing the establishment of such rules. At this point, certain reflections of neo-idealistic political theory come into play and add to the assumptions of Aristotelian political theory and liberal constitutionalism so far described. First, the constitution must be drafted in a certain mindset 8 – no matter who does it. The power of constitution-making must not be misused for particular political interests, it must not be used in a politicized fashion.9 If it is so used, it is likely to erect a despotic political order. The mindset required for constitution-making is described by John Rawls in A Theory of Justice when he introduces his four-stage 6 Wandan (2015)

argues that even though legislation and constitution making are two distinct kinds of actions, they both follow the same logics of action, namely those of representation. 7 Carl Schmitt argues that the parliament even in these moments acts as legislature, not as legislator. It changes the constitutional text, not the constitution. See Schmitt (1928), 91–92, Sect. 10/I. 8 On the importance of a specific constitutional mindset, see in this volume Ming-Sung Kuo, From Institutional Sovereignty to Constitutional Mindset. 9 A similar mindset is required for certain constitutional actors within a constitutional system. See Vermeule (2001).

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sequence to establish just institutions in accordance with his principles of justice. Each stage of this sequence describes a particular ‘mindset’ the actors have to have in order to act justly. The first stage and its particular mindset are well known as the veil of ignorance which is supposed to put actors in the position to find the basic (and universal!) principles of justice. “After the parties have adopted the principles of justice in the original position, they move to a constitutional convention.” (Rawls 1971/1999, 172) At this second stage, the parties “are to decide upon the justice of political forms and choose a constitution.” The next stages describe the ‘mindsets’ for a just legislature (3rd stage) and a just judiciary and executive administration (4th stage). Apparently, Rawls follows the distinction between constitutionalism and politics, between constitutional and political law, for each represents a distinguished stage in this sequence.10 At each stage, “the veil of ignorance is partially lifted.” (ibid. 172) “The flow of information is determined at each stage by what is required in order to apply these principles intelligently to the kind of question of justice at hand, while at the same time any knowledge that is likely to give rise to bias and distortion and to set men against one another is ruled out.” (ibid. 175/76) The four stages thus represent a “series of points of view from which the different problems of justice are to be settled. […] Thus, a just constitution is one that rational delegates subject to the restrictions of the second stage would adopt for their society.” (ibid. 176, my emphasis) The mindset of ideal legislators is thus a modification of the veil of ignorance which is supposed to guarantee that they “arrive at their choice together as free and equal rational persons” and to deprive them “of the knowledge that would enable them to choose heteronomous principles.” (ibid. 222) But what is that point of view or mindset? Well, delegates to the constitutional convention of course know those things which persons behind the veil of ignorance already know, especially the general circumstances of human social life and an “understanding of the principles of social theory.” (ibid. 172) But in addition, “they now know the relevant general facts about their society, that is, its natural circumstances and resources, its level of economic advance and political culture, and so on. […] Given their theoretical knowledge and the appropriate general facts about their society, they are to choose the most effective just constitution.” (ibid. 172–73, my emphasis) They still do not know their particular place in society or dispose of any other particular information about themselves or others in society, for this would make them act like politicians, not like framers. But even though they do not know their particularities, ideal framers may and must know that citizens of a modern society will hold different political views and pursue different political interests. While framing the constitution, they must be aware of the factuality of a reasonable pluralism as described in Political Liberalism by Rawls. All this actually 10 However, there is a somehow cryptical statement to be found which seems to undermine the strict

separation between the second and the third stage: “By moving back and forth between the stages of the constitutional convention and the legislature, the best constitution is found” (Rawls 1971/1999, 174). This seems to suggest that Rawls regards practical constitution-making as an act of legislature which demands a different mindset of actors than normal legislature but which can be done by its actors as well.

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sums up to the Aristotelian and Rousseauean legislator: a de-contextualized and prepolitical rationality framing the constitutional laws for a particular polity, but which remains unpolitical itself. In Rawlsian terms, this mindset or point of view is the one which delegates to a constitutional convention ideally have. It is part of what he described as ideal theory. “This scheme is part of the theory of justice as fairness and not an account of how constitutional conventions […] actually proceed.” (ibid. 176, my emphasis) It is desirable that they do so, but far from sure that they do in a non-ideal world. At the same time, members of a real constituent assembly should possess the ability to take this point of view actively: they are required to act as framers, not as politicians – and they should know this. They should be able to ask themselves whether proposed regulations are just norms for their polity, not whether or not they correspond to or support their particular political interest or worldview, or worse, their particular group. Ideally, constitution-making follows the principle of public reasoning and is not a form of political bargaining or of finding some political compromise.11 Another aspect must be added here in order to count these Rawlsian reflections as being part of neo-idealistic political theory, for they sound more analytical and less normative than they actually are. The reason for this is that the question of the ‘mindset’ of framers of a just constitution is not only one of knowledge or information, but also one of the normative standpoint they have to take. As rational actors at the second stage of the four stage sequence, they already agreed on the general principles of justice which they share and wish to realize in their polity. So the legislators do not have to find any constitutional scheme suitable for their society, but a scheme which suits it and most perfectly embodies these principles, especially the first principle of equal personal and political liberty.12 A legislator who knows he has to frame constitutional laws for a society without any democratic or human rights tradition or with a rather authoritarian political culture will – in light of his acceptance of the principles of justice – still be inclined to make laws which at least enable a transition to a ‘more perfect union.’ So even though an ‘overlapping consensus’ for basic rights and equal liberty is usually and practically a consequence of free and just institutions in a society, he who sets them up must still be guided by its principles in advance. An ideal framer does not only take a particular epistemological point of view at the stage of a constitutional convention, he also takes a particular normative standpoint expressing the principles of equal liberty. 11 See especially Chap. 4 “A Rational Reconstruction of the Practice of Constitution Making” in Patberg (2016). In comparison to my account, Patberg sketches out a Habermasian ideal theory of constitution making and constitutional amendment. See also Habermas (2001). 12 This priority of the first principle derives not only from the lexical order of the two principles which gives priority to the first to the second principle, but also from a “division of labor” which Rawls sees in the four-stage sequence and the ‘responsibility’ of each stage to realize the two principles: “The first principle of equal liberty is the primary standard for the constitutional convention. […] Thus the constitution establishes a secure common status of equal citizenship and realizes political justice. The second principle comes into play at the stage of the legislature. It dictates that social and economic policies be aimed at maximizing the long-term expectations of the least advantaged under conditions of fair equality of opportunity.” Rawls (1971/1999), 174–175.

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Altogether, traditional idealistic political philosophy in the tradition of Rousseau, Kant and Hegel regarded this standpoint as being one of reason. Not men, laws shall govern,13 and consequently, not men, reason shall draft these laws. Second, we have to raise the question what happens with these ideal-theoryconsiderations when they are confronted with the real, non-ideal world. Ideally, every member of the demos who elects a constituent convention and who will later ratify the constitution, as well as every member of that convention can effectively take that position of a reasonable and just legislator. However, real-life constitution-making usually takes place in contexts and under circumstances which prevent these principles for ideal constitution-making from being applied effectively. Usually, drafting a new constitution occurs in situations of revolutionary change after the breakdown of an ancien régime. These situations are characterized by strong political emotions and an extraordinarily high degree of politicization. The beneficiaries of the old order stand against the proponents of change, while that group is more often than not united only through its opposition against the old order and itself divided along various political, social and cultural cleavages. Each of these groups assigns its particular political hopes to that situation in which a new political order can be established from scratch. It is too tempting to try to inscribe their particular political positions into that new order. The danger is therefore high that the process of constitution-making gets politicized as well. In its worst case this may lead to the usurpation of political power by one particular group as described above. At best, various groups form some more or less stable balance of power and find some more or less reasonable political compromise. Yet such compromises easily collapse with the dissolution of their underlying balances of power. In the parlance of the theory of constitutions as rational precommitments, “constitutions are chains with which men bind themselves in their sane moments that they may not die by a suicidal hand in the day of their frenzy.” (Elster 2000, 89)14 They are some sort auf “auto-paternalism” (Thomas Schelling) which the demos uses in its ‘sober’ moments against itself to prevent itself from acting irrationally when it is less clearheaded: “A constitution is Peter sober while the electorate” – sometimes – “is Peter drunk.” (Holmes 1995, 235) The legislator is supposed to act like Ulysses before he is tempted by the sirens. Unfortunately, revolutionary situations are usually not exactly situations of calm temper. The sirens chant loud and clear. At the same time, these are exactly the situations in which that quality of putting oneself in a reflective mindset is required if the demos is supposed to draft a constitution in that sense. Historically, constitutions are rarely drafted during peaceful phases of stability and prosperity, or in circumstances with a vast time budget for careful reflection and thorough discussion. So in the heat of revolutionary situations chances decrease significantly that people will act as ‘reasonable’ legislators. It’s like asking Peter to work out some clever precommitment-strategy to prevent himself from driving drunk while being drunk.

13 …and

guarantee that people govern themselves through reasonable principles. on that account: Waldron (1998).

14 Critical

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There are three further aspects which worsen the prospects of a successful and stable constitution-making in such situations. First, they are usually marked by a high degree of violence. When old regimes collapse during a war (as was the case before the constitution-making of the Weimar Republic), this is apparent. But it is of course also observable in ‘normal’ revolutions when the old regime is removed by force. Violence is thus widely regarded as a legitimate means of politics in such moments. And even if the collapse of the old regime happens in a non-violent way, the recourse to violence is in the air as the fear of violent counter-revolution or violent usurpations of the revolution by particular groups. Moments of (re-)founding a polity are thus marked by a high degree of explicit and tacit violence. The negative emotion of fear is very present – and it is no good guidance for calm reflection. Constitution-making in such situations must go hand in hand with the confirmation or the reestablishment of the state’s monopoly to the use of force and prevent the revolution to slide into civil war. This is historically and empirically observable from Weimar to the Arab spring revolutions. A central threat to the establishment of a constitutional democracy lies in the widespread demand for security and the preparedness to have it satisfied by some sort of authoritarian savior, such as the Egyptian generals in the course of the Egyptian Revolution after 2013.15 At the same time, constitution-making with various competing factions may lead to a competition for the support of the armed forces and may hence increase the danger and fear of a usurpation of the revolution by the group which succeeds in that competition. Second, – and this is also very well observable in the countries of the Arab spring and in prior historical examples – successful constitution-making in revolutionary situations is dependent on economic success. Revolutions are often not actually caused, but driven by economic need and injustices and supported by social groups suffering from both. They attach high hopes for economic improvement to the change of the political system and are ready to withdraw support for the new system with its continued incapacity to alleviate their economic situation. This readiness can easily be augmented by the fear of actual and tacit violence just described. Even though priority must be given to the questions of political order which are raised during a revolution – as Hannah Arendt argued in her book On Revolution (Arendt 1963, 59–114) – the founding of the republic will not succeed if economic improvement for the least advantaged fails to appear or if the economic situation of the middle classes deteriorates significantly under the new system. Third, – and this is a crucial point which will lead us back to idealistic political theory – ‘liberal-democratic’ revolutions rarely occur in well-ordered societies but usually in rather despotic, authoritarian countries. Some abstract wish for equal rights and liberties, for just political and social institutions may drive some, maybe even all revolutionary groups. But they are not and cannot be motivated by strong attitudes which result from the enjoyment of these freedoms and such institutions. On the other hand, citizens of rather well-ordered societies tend to share an overlapping consensus about the importance of equal rights and liberties and democratic institutions. Many 15 See in this volume Fatih Öztürk, Again: From 1867 to Today. Making a Constitution under an Elite Umbrella in Turkey.

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of them will dispose of a “morality of principles” (Rawls 1971/1999, 414) rather than of moralities of authority or association. And they will rather hold “reasonable comprehensive doctrines” (Rawls 1993)16 in their private and public lives instead of unreasonable or even fanatic doctrines. The pluralism in a nearly well-ordered society will be a reasonable pluralism, not a dogmatic or agonistic pluralism. In short: Its citizens are quite well-prepared to be good legislators – which they do not need to be. This preparedness, which is an effect of the socializing force of just and reasonable institutions, cannot be found to the same extent where those institutions never existed and unfolded that force. In despotic countries we rather find a lack of this sort of overlapping consensus, strong affiliations to moralities of authority or association (such as strong ties to ethnicity, tribalism, nationalism, clan-structures), strong ties to rather unreasonable comprehensive doctrines (in the Rawlsian sense) and quite often a public sense of justice which is dominated by one of these (religious and authoritarian) doctrines or by moralities of association (nationalism). That does not mean that every single person in such societies is a hardcore authoritarian personality, but that these structures tend to prevail in comparison to an open society (which knows authoritarian characters as well, see D. Trump). Hence many citizens and members of the elite of formerly despotic countries will lack the ability to actively take the standpoint of an ideal legislator (or even come close to it). This is of course the case for those who actively reject these values, but often enough also for those who are driven by that abstract want for equal rights and liberties and democratic structures. When fighting for ‘democracy’, such actors tend to overemphasize majority rule and to underestimate constitutionalism (for they knew authoritarian constitutionalism in advance) and to misuse majorities for one-sided constitutional policies.17 The paradox of founding18 a constitutional democracy can therefore be formulated as follows: While citizens of a constitutional democracy tend to benefit from the socializing force of just institutions and would therefore frame a constitution creating such institutions, citizens of a ‘less perfect union’ are handicapped in taking the position of good legislators. Constitution-making in the mode of the constituent power of the people in a well-ordered society is feasible but not necessary, while it is desirable but not feasible during the transition from badly-ordered to well-ordered societies. This paradox was first described by Rousseau in the Social Contract in exactly that chapter in which he introduces the legislator as the external “engineer who invents the machine” (Rousseau 1762/1782, 2/7) and thereby follows the Aristotelean tradition of seeing the framing of the constitution as ‘making’, not as political acting. But more importantly, Rousseau emphasizes exactly that ‘transforming’ nature of the institutions the legislator is supposed to create: “He who dares to undertake the making of a people’s institutions ought to feel himself capable, so to speak, 16 See

John Rawls, Political Liberalism (Columbia University Press 1993). for instance Victor Orbán’s or Jarosław Kaczy´nski’s references to their democratic support and ‘democratic majorities’ for their questionable constitutional policies. 18 Taking up the debate between Jürgen Habermas and Frank Michelman, a closely related paradox is described by Olson (2007). 17 See

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of changing human nature, […] of altering man’s constitution for the purpose of strengthening it. […] He must, in a word, take away from man his own resources and give him instead new ones alien to him, and incapable of being made use of without the help of other men.” (ibid.) In that idealistic strand of political philosophy, creating a just constitution is some sort of a paternalistic intervention which helps people to leave the state of nature and live a civilized life under just and reasonable institutions. The legislator must apply a sort of reason which the masses cannot have yet but which will be open to them once his work is finished: “For a young people to be able to relish sound principles of political theory and follow the fundamental rules of statecraft, the effect would have to become the cause; the social spirit, which should be created by these institutions, would have to preside over their very foundation; and men would have to be before law what they should become by means of law.“(ibid.) So the external or authoritative legislator solves the hen-egg-problem of reason and constitutionalism because he is a bearer of that reason which the demos needs but cannot have yet. He makes reasonable laws which then, after his work is done and while people live and do politics by these laws, make people reasonable too. But in Rousseau’s considerations the legislator has to solve another problem: How should he convince people of the reasonableness of constitutional laws which restrain their natural freedom and whose beneficence becomes apparent only after their implementation? Rousseau – in contrast to Hegel who knows a heroic right to create just institutions by force – rules out force, apparently, because force is a means of the state of nature itself and not suitable for leaving it. But he needs to rule out appeals to reason too, because the right sort of reason to appeal to is not there yet. “The legislator therefore, being unable to appeal to either force or reason, must have recourse to an authority of a different order, capable of constraining without violence and persuading without convincing.” (ibid.) Rousseau seems to be a bit clueless at this moment because he knows not how to help himself but by taking recourse to divine authority. Within ideal theory, the legislator as a bearer of reason has “nothing in common with human empire.” (ibid.) Practically, “this is what has, in all ages, compelled the fathers of nations to have recourse to divine intervention and credit the gods with their own wisdom, in order that the peoples, submitting to the laws of the State as to those of nature, and recognizing the same power in the formation of the city as in that of man, might obey freely, and bear with docility the yoke of the public happiness.” (ibid.) This is the only external anchor point Rousseau can imagine which gives the legislator the authority he needs to ‘persuade without convincing’ by reason. This is of course not very satisfactory. Still, these reflections pave the way for finding a possible solution of the reason-constitutionalism-dilemma which we also find when contrasting Rawlsian ideal theory with constitution-making in a nonideal world. Apparently, constitution-making cannot be done by public reasoning or by a democratically elected assembly if the institutional and normative preconditions for such procedures do not exist yet, and if their application increases the chances of authoritarian misuse, violent turmoil and the failure to set up a just polity. What we learn from Rousseau is that some sort of authoritative, quasi-paternalistic constitution-making might solve that dilemma.

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I am well aware that this conclusion is not very popular in the light of various objections and that its implications run against widespread calls for more democratic, more inclusive, more discursive constitution making processes.19 Furthermore, radical democracy and its theory of revolution highly estimate the high degree of politicization in revolutionary situations, because exactly this constitutes the demos in ‘democracy’. The demos actually comes into being in these moments through politicization. Constraining the demos through constitution-making cuts it off from its political self-empowerment it just won in the liberation from an exclusionary system. Proposing a rather authoritative than democratic constitution-making process even aggravates this re-disenfranchisement. While I appreciate that view very much, I cannot see what is won for reaching the goal of justice if the degree of politicization in combination with a contested monopoly of force rises to a degree which threatens the polity to disrupt into civil war. In these moments, it can be wise for the demos to ‘commission’ (Arendt) a legislator who secures the achievements of the revolution in its name by making a workable democratic constitution. It might even be helpful to abide to a revolutionary usurper who defends these achievements against potential particular usurpers or against counter-revolution and who authoritatively drafts and implements such a constitution. High risks are attached to these procedures as well, but they are probably not higher than to hustle a society into turmoil and civil war.

4 Ideal Types of Authoritative Constitution-Making In what remains in this paper I wish to sketch out three ideal types of authoritative constitution-making. I intentionally call them ideal types, for authoritative constitution-making and democratic constitution-making practically never occur in pure form. Real life constitution-making processes combine elements of both. They represent a particular mixing ratio of both. What is constitutive for authoritative modes of constitution-making is the necessity of some anchor point outside the sovereignty of the demos and its constituent power. And if it is to serve as an anchor point to constitute a democratic polity, this anchor point has to be acceptable by the demos. Otherwise, the so imposed constitution can and will not gain legitimacy. 19 See

Hart (2003), Eisenstadt et al. (2015), Elkins et al. (2008). I am grateful to Solonga Wandan who currently has a paper under review, entitled ‘Do Citizens Influence Constitutional Content? Mechanisms of Popular Constitution Making in Comparative Perspective’. See in this volume Manar Mahmoud, Constitution-Making, Political Transition and Reconciliation in Tunisia and Egypt: A Comparative Perspective. Our papers are contradictory only at first sight. We both agree as political scientists that the mode of the constitution making process is of high importance for the legitimacy and effective implementation of a democratic constitution. While I agree that constitution making processes can have the reconciliatory effect Manar Mahmoud suggests, her comparison between Tunisia and Egypt shows that more inclusive and more discursive modes of constitution making (i.e. a more ‘ideal’ process) are based on certain normative and institutional preconditions. Citizens and their society must be ‘fit for discourse’ in order to engage in that type of deliberation. In that regard, her findings support my hypothesis.

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Consequently, the successful use of modes of authoritative constitution-making depends on certain preconditions which must prevail. First and in line with Rousseau, there is divinely assisted constitution-making. It is not exactly a technical mode of constitution-making, for rarely Gods or beings of their kind draft constitutions and send them to earth. If one believes, they sometimes do something similar through Moses, Jesus or Mohammed, but their action did not constitute a democratic polity for a given society. However, secular constitutions often take recourse to some divine formula at their beginning; or to some natural rights formula which fulfills the same function as an ‘external’ anchor point. They do this to ‘root themselves’ in something outside the constituent power of this particular demos and its polity. The German Grundgesetz for instance knows such a formula when it starts with Article 1: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.” (Basic Law, 1(1)) This human dignity is preexistent to the constituent power and hence not tangible by it. However, in secular, post-religious or multi-religious societies, appeals to some divine authority are at least problematic, if not unfeasible. They are especially problematic when formulated too narrowly or with recourse to a particular god or ‘comprehensive doctrine’ (Rawls). An explicitly Christian formula would, for instance, fail to bind adherers to other faiths. In that light, the hidden divine formula of the Grundgesetz is very intelligently designed, because many religions and even non-religious groups can accept it as the normative and somehow ‘transcendent’ rooting of the constitution. At the same time, it is important to notice that the use of some divine authority for this sort of ‘rooting’ is not equivalent to designing a religious constitution. A particular religion does not necessarily become a structuring structure for the constitution only because some credit is given to it at the beginning of the constitution. Divine authority and secular constitutions (i.e. securing freedom of religion etc.) are indeed compatible. And it might even be advisable to use a narrow religious formula taken from one particular doctrine. If there is one dominant religion in a society and if it is strongly believed in by its members, why should the authority of a secular constitution not be enhanced with such a formula? It might prove helpful in order to open up the ‘overlapping consensus’ for strong adherers of that ‘comprehensive doctrine’ and to bind them to the constitutional order. It might even prove helpful to transform a doctrinarian pluralism into a reasonable pluralism in the Rawlsian sense if it helps to unite the major doctrines in a society under the umbrella of a secular constitution. Second, there is internal expertocratic and authoritative constitution-making. Even very democratic constitution-making procedures know expertocratic elements for very practical reasons. It is rare that a constitution is actually drafted by the entire demos which meets on the fields outside the city. And it is unfeasible in larger territorial states. The Philadelphia convention was a highly expertocratic (and aristocratic) body. Representative national assemblies with a constitution-making mandate often know constitutional committees, which themselves often know one individual ‘father’ of the constitution like Hugo Preuss for the Weimar constitution. All these steps are steps away from a truly ‘democratic’ mode of constitution-making. As

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it is an act of craftsmanship (as argued above), judicial experts are the dominant craftsmen who do the actual ‘making’ of a constitution. If there is a widespread trust into the judicial elite of a country (and its democratic reliability), this mode of constitution-making is easily accepted, especially if this elite is democratically ‘commissioned’ to draft a constitution and if their product is accepted democratically afterwards. Ideally, the members of the constituent committee draft the constitution in the mindset as described by Rawls. This is the usual course of events of a very democratic constitution-making process which tolerates expertocratic elements for practical reasons. However, the needle may show to the rather authoritative side of the spectrum too. A council of experts may be nominated less democratically than through a national election for a constituent convention.20 It may be called into existence by current or revolutionary power holders or it may nominate itself if it has the power and authority to do so (like de Gaulle did more or less in 1958). In all these and other imaginable ways it comes into being without the will of the demos being explicitly expressed. And yet it can do the same work and yield the same results. If trust into such a council (or some other form of tacit acceptance) is high and if its product is accepted and democratically implemented, a constitution can gain sufficient output legitimacy even though its input legitimacy is deficient from a democratic point of view. This was for instance the case in Germany, where the “Parlamentarische Rat” which drafted the Grundgesetz in 1948/49 was not directly elected by the demos and hence less democratically legitimized than the national assembly of Weimar and its constitutional committee. Yet it drafted a constitution which proved to be more successful in the long run. While the establishment of an expert council can be quite authoritative, the implementation of its product can be so too, at least at the beginning of the establishment of a democratic order. Some sort of ‘constitutionalizing dictatorship’ may be legitimate, if it secures the implementation of a democratic constitution – ‘dictatorship’ being used here in the Roman tradition of a Republican institution and in the sense of a “provisional dictatorship” as described by Schmitt (1921/1994, 1–41).21 The power of bad will and the preparedness to use force of anti-constitutional and antidemocratic minorities (which in sum may even represent a majority) may present an existential threat to a young constitutional order. It may hence be necessary that it starts its existence with a state of exception, even to the degree that the realization of some democratic or basic civil rights is postponed until this threat is banned. (They are not ‘suspended’ in the literal meaning, because they were not effectively applied yet.) Various Western constitutions know provisions for emergency and even 20 In that regard, the Philadelphia Convention was less democratically constituted than the National

Assembly of Weimar. At its time, it was probably the most democratic attempt to draft a constitution for it was the first time such an assembly was elected through universal – male and female – suffrage. Hence every establishment of a constitutional convention can be spotted at a particular point of an authoritative-democratic-spectrum. 21 See also the debate about the, guardian of the constitution “between Carl Schmitt and Hans Kelsen during the Weimar Republic: Vinx (2015).

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an individual right to resistance to preserve their constitutions in cases of constitutional emergency. The Grundgesetz for instance states in Article 20/4: “All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.” (Basic Law, 20(4)) Articles like this are conservative in nature, because they authorize the use of authoritarian – or even violent – means for the preservation of democratic constitutions. Conversely, there might be a right to use such means to create them and put them into action. If it is allowable to suspend basic freedoms and democratic procedures to save democracy and rule of law, why should this be banned for their implementation? The Weimar constitution for instance only survived its turbulent beginning thanks to the much-maligned Article 48, which was also used to protect the Republic against an attempted putsch by Hitler and Ludendorff in 1923 (see Dreyer 2012). However, as the example of the Weimar constitution and its ending shows, a great danger comes with associating the establishment of a democratic constitution with the possibility to suspend it. For it presents exactly the same opportunity for the usurpation of the state and the revolution it is supposed to ban. Sometimes, one simply cannot know in advance whether some particular dictatorship represents a constitution-saving state of exception and withdraws itself from power to establish democratic normalcy, or whether the party so acting turns into a real dictatorship and (re-)establishes an authoritarian political order. Once the results of a revolution have to be secured by authoritarian means, this risk seems to be inevitable, and only history can tell, which side the actors were on. In the aftermath of the military coup d’état in Egypt in 2013 it was for instance quite unclear whether or not it served to save the revolution or to reestablish a new dictatorship by the army. We only learned afterwards that Abdel Fattah el-Sisi led Egypt into a new era of authoritarianism, not into democracy (see Zwitter 2015). But as the case of Myanmar/Burma shows, it is not completely unrealistic to see a military dictatorship hand over power to democratic normalcy and put a democratic constitution into action, even if it takes some time and compromise. This process was – in various forms – supported and enhanced from abroad, which leads us to the final ideal type of authoritative constitution-making. So third, there is external authoritative constitution-making, which follows the Aristotelian notion that a legislator can be ‘commissioned’ from abroad. Most in line with the idea of commissioning some external, uninvolved ‘craftsman’ for constitutional design is the invitation of judicial experts from abroad. There is a long tradition to consult experts for constitutional law from countries with an established constitutional democracy, which represents a regular expertocratic element in rather democratic constitution making processes. However, the idea of ‘commissioning’ is also crucial in a precommitment perspective. Peter sober always needs some third party for his autopaternalism: He hands over his car keys to a friend and tells him not to give them back to him, no matter how much he insists after various drinks. Ulysses needs his crew, an addict someone who locks him up when getting weak, and so on. Equally, a demos might need some help of that sort when it comes to making and implementing a democratic constitution. The explicit commissioning of an external legislator would thus be an expression of the autonomy of the demos. However, this is rarely the case. At best, there is some tacit demand for external

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support or a loud minority articulates it explicitly. At the same time, this topos gives rise to dangerous opportunities for misuse. Did the Iraqi people want to be liberated and benefit from the blessings of a democratic re-founding of their polity? It is the old objection against all forms of paternalism: Nobody knows what the other really wants and whether or not the paternalist is as altruistic as he pretends to be. So arguing for external authoritative constitution making indeed helps to open Pandora’s box of what James Tully called the imperialism of modern constitutional democracy (Tully 2007). However, it is not impossible that some help or some pressure from abroad facilitate the drafting and implementation of a democratic constitution, which then gains quite some output legitimacy. For instance, the Parlamentarische Rat in Germany was established by the victorious allies and not by some articulation of the political will of the German people. When speaking of external authoritative constitution-making, I wish to distinguish between two forms: political and judicial. Affecting constitution-making politically from abroad is the ‘traditional’ form and reaches from very drastic varieties (first invasion, then occupation, then imposition of a constitution) to rather tacit forms like NGO democracy promotion or the granting of economic or symbolic benefits. This political version is not automatically a means of imperialism as described by Tully, but it is very prone to become one, because it can easily be used strategically. This is not the case to the same degree for the judicial version of external authoritative constitution-making. Judicial external authoritative constitution-making is comparatively new, because it necessitates the constitutionalization of inter- and supranational relations (see Patberg 2013; Walker 2010; Wouter 2010). Quasi-constitutional norms on these levels (such as global or continental human rights regimes, the European Union) can have an influence on domestic constitution-making processes. They represent some judicial external anchor point which has to be respected by the demos of a signature state of these conventions. In a multilevel constitutional order, inter- and supranational constitutional constraints can represent a judicial framework restraining the sovereignty of the demos before it actually begins to frame a new constitution. The constitution is then not actually made by some external authority, but framed by it. Of course, this will rather lead to merely normative pressure and not to imperative mechanisms. But this pressure can make quite a difference. And it can be amplified with the help of political pressure and incentives. European Union’s enlargement process gives a good example for a successful combination of both forms, while even respecting the autonomy of the demoi in question. For various political and economic reasons, they wanted to join the Union and hence declared to abide by the rules the European treatises embody. During the admission procedure, they were ‘forced’ to legal, political and even constitutional reforms to put their constitutional and legal systems in conformity with the treatises and their democratic and rule of law principles (see Fruhstorfer and Hein 2016). These supranational norms hence unfolded constitutionalizational force on these domestic constitutions. Whether or not this conformity is enforced against a demos which does not want to abide to it any more, will be seen in the current Commission’s Rule of Law Framework process against Poland. So here this supranational constitutional framework even

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seems to produce some pressure during the implementation or working phase of a democratic constitution and to externally help to protect it against the mischiefs of the constitutionalism-democracy-dilemma. These kinds of supranational assistance to create, implement and secure democracy and rule of law were not available to the Weimar Republic but would have doubtlessly been helpful between 1930 and 1933. And in the light of the positive experiences of the enlargement process it is worthwhile asking whether an entrance option for transitional polities such as Tunisia could not serve as an important tool to assist and secure its transition to democracy and rule of law.

5 Conclusion: An Open Empirical Hypothesis All three ideal types of authoritative constitution-making almost never occur in pure form, as is the case for democratic constitution-making. The secret for success to draft and implement a democratic constitution rather seems to lie in a wise and often lucky mixture of the constituent power of the people, expertocratic and authoritative means, and some assistance from abroad and from above. The hypothesis I wanted to present here, is that in certain situations, in which the recourse to rather democratic means of constitution-making bears the risks of failure (which tends to be a bloody failure), authoritative means might reduce these risks and help to achieve a goal which more ideal means could not yield. This is of course a highly controversial and normative hypothesis. But it is not meant to be a normative assertion as such. It is rather formulated as an empirical hypothesis, raising the question whether it is true – in the light of historical evidence of given constitution-making processes over time – that the mode of constitution-making actually influences the success of a constitution. The arguments I presented here give some reasons drawn from certain schools of normative political theory why this might be the case, but it remains open if this is actually true. So instead of giving normative guidance to practical constitution-making, this paper invites for historical and empirical research in the form of comparative studies of constitution-making processes to test this hypothesis.

References Arendt H (1958) The human condition. University of Chicago Press, Chicago Arendt H (1963) On revolution. Faber and Faber, London Aristotle (2005) Politics (=Loeb Classical Library: Aristotle in twenty-three volumes). Harvard University Press Cambridge, Mass Basic Law for the Federal Republic of Germany. https://www.gesetze-im-internet.de/englisch_gg. Accessed 13 Jan 2017 Bellamy R (2007) Political constitutionalism. A republican defence of the constitutionality of democracy. Cambridge University Press, Cambridge

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Dreyer M (2012) Weimar as a ‘Militant Democracy’. In: Hung J, Weiss-Sussex G, Wilkes G (eds) Beyond Glitter and Doom: the contingency of the Weimar Republic. Iudicium, Munich, pp 62–79 Eisenstadt TA, LeVan AC, Maboudi T (2015) When talk Trumps text: the democratizing effects of deliberation during constitution-making, 1974–2011. Am Polit Sci Rev 109:592–612 Elkins Z, Ginsburg T, Blount J (2008) The citizen as founder: public participation in constitutional approval. Temple Law Rev 81:361–382 Elster J (2000) Ulysses unbound: studies in rationality, precommitment and constraints. Cambridge University Press, New York Förster J (2009) Die Sorge um die Welt und die Freiheit des Handelns: Zur institutionellen Verfassung der Freiheit im politischen Denken Hannah Arendts. Königshausen & Neumann, Würzburg Fruhstorfer A, Hein M (eds) (2016) Constitutional politics in Central and Eastern Europe. From post-socialist transition to the reform of political systems. Springer, Wiesbaden Habermas J (2001) Constitutional democracy: a paradoxical union of contradictory principles? Polit Theory 29:766–781 Hart V (2003) Democratic Constitution Making, Special Report 107 of the United States Institute of Peace, July 2003. http://www.constitutionnet.org/files/Module%204_5.1A.pdf. Accessed 13 Jan. 2017; Elkins Z, Ginsburg T, Blount J (2008) The Citizen as founder: public participation in constitutional approval. Temple Law Rev 81, 361–382. I am grateful to Solonga Wandan who currently has a paper under review, entitled ‘Do Citizens Influence Constitutional Content? Mechanisms of popular constitution making in comparative perspective’ Holmes S (1995) Passions and constraint. On the theory of liberal democracy. University of Chicago Press, Chicago Kennedy E (2004) Constitutional failure: Carl Schmitt in Weimar. Duke University Press, Durham Michelsen D (2017) Die Fortführung des Gründungsmoments in der Verfassungsordnung. Arendt, Jefferson und popular constitutionalism. Zeitschrift für politische Theorie 8(2):141–158 Olson K (2007) Paradoxes of constitutional democracy. Am J Polit Sci 51:330–343 Patberg M (2013) Constituent power beyond the state. An emerging debate in international political theory. Millenn J Int Stud 42:224–238 Patberg M (2016) Constituent power: a discourse-theoretical solution to the conflict between openness and containment. Constellations, http://onlinelibrary.wiley.com/doi/10.1111/1467-8675. 12253/full. Accessed 13 Jan. 2017. https://doi.org/10.1111/1467-8675.12253 Preuss UK (2006) Constitutional powermaking for the new polity: some deliberations on the relation between constituent power and the constitution. In: Bellamy R (ed) Constitutionalism and democracy. Ashgate Dartmouth, Aldershot, pp 365–386 Rasch BE, Congleton RD (2006) Amendment procedures and constitutional stability. In: Congleton RD, Swedenborg B (eds) Democratic constitutional design and public policy. Analysis and evidence. MIT Press, Cambridge, Mass., pp 319–342 Rawls J (1971/1999) A theory of justice, rev. ed. Harvard University Press, Cambridge, Mass Rawls (1993) Political liberalism. Columbia University Press, New York Rousseau JJ (1762/1782) The social contract, or principles of political right. http://www.constitut ion.org/jjr/socon.htm. Accessed 13 Jan 2017 Schmitt (1921/1994) Die Diktatur: Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf, 6th edn. Duncker & Humblot, Berlin Schmitt C (1928/2010) Verfassungslehre, 10th edn. Duncker & Humblot, Berlin Tully J (2007) The imperialism of modern constitutional democracy. In: Loughlin M, Walker N (eds) The paradox of constitutionalism: constituent power and constitutional form. Oxford University Press, Oxford, pp 315–338 Turner J (2015) The constitution of radical democracy. Polity 47(4):558–565 Vermeule A (2001) Veil of ignorance rules in constitutional law. Yale L.J. 111:399–433 Vinx L (2015) The guardian of the constitution. Hans Kelsen and Carl Schmitt on the limits of constitutional law. Cambridge University Press, Cambridge

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Waldron J (1998) Precommitment and disagreement. In: Alexander L (ed) Constitutionalism. Philosophical foundations. Cambridge University Press, Cambridge, pp 271–299 Walker N (2010) Constitutionalism and the incompleteness of democracy: an iterative relationship. Rechtsfilosofie & Rechtstheorie 39:206–233 Wandan S (2015) Nothing out of the ordinary: constitution making as representative politics*. Constellations 22(1):44–58 Weingast BR (2006) Designing constitutional stability. In: Congleton R D, Swedenborg B (eds) Democratic constitutional design and public policy. Analysis and evidence. MIT Press, Cambridge, Mass., pp 343–366 Wolin SS (2016) Norm and form: the constitutionalizing of democracy. In: Wolin SS (ed) Fugitive democracy and other essays. Princeton University Press, Princeton, pp 77–99 Wouter WG (2010) Democracy, constitutionalism and the question of authority. Rechtsfilosofie & Rechtstheorie 39:267–275 Zwitter A (2015) The Arab uprising: state of emergency and constitutional reform. In: Lamont CK, van der Harst J, Gaenssmantel F (eds) Non-western encounters with democratization: imagining democracy after the Arab spring. Ashgate, Farnham, pp 103–127

Again: From 1867 to Today, Making a Constitution Under an Elite Umbrella in Turkey Fatih Öztürk

Abstract Turkey is a country which is rich in culture and history. It is also called one of the few modern states that practices Islam, yet also has an established democratic system. This democracy, however, is flawed due to non-involvement from the masses. The country currently needs a new constitution, which was promised by the government that was re-elected on November 1st, 2015, ever since its rise to power on November 3rd, 2002. It seems that a new constitution which will eliminate the imbalance between state elites such as bureaucrats, high military officers and academics vs. the nation. In conclusion, the author recommends that in any case, that the new constitution should lead to the participation of the public before and after political events which take place in the administration of the country.

This paper is an original thesis written for of LLM at Queen’s University in Kingston, Canada in July of 2005. It has also been fully published in Turkey twice under the title of “Turkish Military Interventions and Building Constitutions: the Bulwarks of an Unstable Democracy” as a chapter in Filiz Kitabevi’s two books published in Istanbul: Constitutional Law Readings for Turkey, 2008 and Essays in Turkish and Comparative Law, 2013. This version has been revised, shortened and updated of the mentioned publications. In addition, the author made a new argument concerning Turkish and similar types of democracy, after his own account of witnessing the corruption and political turmoil amongst the elite of Turkey. His conclusion is that these styles of democracy run via the influence of elite groups’ power. None of the said groups of politicians aim to bring justice to society. They string together pleasing words to the majority of the country’s populace and repeat claims of self-justice that will repair the endless problems the country faces. The author believes that the Turkish nation will soon realize the recurring cycles of power struggles that are tossed off as a game of false hope for the people, and in doing so establish a system based on personal and institutional checks and balances. Undoubtedly, absolute power corrupts those that obtain it. F. Öztürk (B) Istanbul University, Istanbul, Turkey e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_21

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1 Introduction The Turkish parliamentary system has been in a state of crisis since the Republic of Turkey was established in 1923. Most Turkish people feel that their system has been ailing and has arrived at an impasse. Since the early 1990’s, Turkey has been in search of an “effective” government, which, to many requires the stabilization of democracy and the removal of the Turkish Armed Forces from the political arena. Many politicians, and a few legal scholars, believe a presidential system should replace Turkey’s current parliamentary system. They see this as a natural and democratic option for Turkey, one that will help satisfy the expectations for an “effective” government and a solution to better cope with the challenge of containing the role of the Turkish Armed Forces. Many legal scholars claim that, thus far, Turkey and its people have not built the historical foundations of democracy like that of most Western democracies. In this light, it can be argued that Turkey needs to focus more on the process of building democratic institutions from the ground up. There has been considerable debate of the suitability of either the Presidential or the Parliamentary system for Turkish politics. A minority of legal scholars believes that the problem of Turkey’s unstable democracy lies in the fact that it currently has two executive branches, the Prime Minister and the President, creating problems for the Turkish parliamentary system. They believe that adopting the American presidential system could resolve most, if not all, of Turkey’s problems. However, most Turkish legal scholars prefer the parliamentary system for Turkey. They claim that if Turkey adopts the presidential system, the country’s political system will resemble those of Latin America, where government suffers from their own inherent instability problems. Both sides agree that Turkey needs an “effective” government. But, the main question remains… How can Turkey establish an “effective” government? While the debates on Presidential versus Parliamentary systems generate considerable attention, both sides seem surprisingly unaware of the role that the Turkish Armed Forces plays in the country’s politics. Turkey’s most chronic problem, beginning in the 17th century Ottoman era, has been the role of the Turkish Armed Forces in Turkish politics. From this perspective, the real question should be how could the Turkish government control the Turkish Armed Forces? Under parliamentary or a presidential system is a less significant area of concern. But, what kind of rule of law has to be established to overcome this chronic problem? Turkey’s bourgeoisie, including its legal scholars, must address this question in order to establish a stable democracy. For democracy to truly take hold, the power of the Turkish Military needs to be removed from the Turkish legal system. Under Turkey’s current system, which has operated for nine decades, the country has not been able to establish a stable democratic regime. Since the beginning of the republic, Turkey has created three constitutions. In addition, over the past 40 years, Turkey has faced five military coups or attempts of them, the most recent in 2016. Moreover, here I will explore the historical weaknesses in the Turkish democratic model and highlight what the nation should do to build up and codify civil-military or public-elitist relations under the

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Constitution. This is a necessity, I argue, to achieve a model of “effective” government which will then stabilize its democracy. Examples around the world show that a democracy can and will function properly in both a presidential and parliamentary system such as in the US, the UK, Canada, and Germany. These countries were able to establish strong democratic systems because their armed forces were placed under the control of civilians. At least, it seems that those countries had established some balance between public and elitists. These are the essential steps that need to take place in Turkey. Arguably, civilian-military and public-elitist relations in Turkey are not true to democratic tradition. Civilians do not have authority over any military action, thus, military intimidation is vividly apparent within the general population resulting in a scared, silenced society that ultimately makes the establishment of a stable democracy in Turkey nearly impossible.

2 Brief History of Turkish Constitutions The Constitution of 1867 provided for the first time a Western-styled constitution. The so-called “Young Turks,” a strong intellectual group during this time, had prepared the Constitution.1 In the late nineteenth century the religious basis of Ottoman sovereignty became unstable. Western powers had been trying to eliminate the Ottoman state from the historical arena.2 The “Young Turks” believed that a Western-styled administration would prevent attacks from the Western world towards the Ottoman state.3 Ultimately however, this would not prove to be true. Historically, the Turks have great expectations of its legal movements. Ironically if there is no belief in the rule of law, how can a legal system cure social problems? What was the significance of the Constitution of 1876? According to Berkes, an eminent sociologist and historian in Turkey, the Constitution of 1876 was the first constitutional experiment performed in Islamic history.4 The Constitution of 1876 was framed by the administration through an elite group of bureaucrats, not by the representatives of people. The people were never involved in the constitution making procedures and this tradition continues in modern day Turkey. Turkey formed constitutions in 1876, 1921, 1924, 1961, and 1982. In the following section, I will explore the constitutions of 1876, 1908, 1921, and 1924.

1 Erdo˘ gan

(2003), pp. 13–14. (1964), p. 202. 3 Ibid. Many “Young Turks” fled to Europe around the 1860’s to 1900’s in order to escape the hands of the state. 4 Ibid. at 223. The first constitutional experiment was the Medina Constitution prepared by Messenger Mohammed during Islamic history. The Constitution of 1876 was the first constitution prepared based on a Western model. Professor Berkes believes that this constitution was carried out under the pressures of international politics. 2 Berkes

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2.1 The Constitution of 1867 (Kanun-i Esasi)5 The 1867 Constitution, adopted from the 1830 Belgian Constitution, would be considered as the beginning of the parliamentary institution for the Turks.6 It created a Monarchical Parliamentary system which effectively limited the Sultan’s authority. This Constitution consisted of a Parliament made up of a Senate (Heyet-I Ayan) and a Chamber of Deputies (Heyet-i Mebusan).7 A council of Ministers (Heyet-i Vukela) was appointed by the Sultan himself and each minister was individually responsible to the Sultan.8 Senate members were appointed by the Sultan, however, the Chamber of Deputies was to be elected by holding a public election, which then took place in 1877.9 This Constitution legitimated personal freedoms, guaranteed the freedom of the press, provided for the security of tenure for judges, as well as freedom of education, religious liberties, the prohibition of torture and related actions, and voting rights.10 The constitution clearly stated that Islam was the state religion; however, the state guaranteed the protection of all faiths and continued to uphold all religious privileges. During the Ottoman era, non-Muslims could be exempted from military service; some opted to pay an exemption tax. Jews and Christians were also exempt from the jurisdiction of the Imperial courts in terms of religion and personal status, including family law, legitimacy, inheritance… They fully enjoyed self-government within their religious communities and they also operated their own schools. The Sultan had the last word in many provisions of the Constitution. In 1877, due to the Ottoman- Russian War, martial law was declared in May, and in June, Parliament was suspended until 1908.11 Without a parliamentary culture, there is no way to structure institutions within Parliament. With the Constitution of 1867, the Ottoman Turks began to develop a national parliamentary system.12 It was the first constitution which established the first parliament in Turkish political life. After this largely unsuccessful experience, in the Constitution of 1867 there were three constitutional documents; the Sened-i ˙Ittifak of 1808, the Tanzimat of 1839 and the Hatt-ı Humayun of 1856. All of documents provided a charter of personal liberties in writing. Some legal scholars considered these as the Magna Carta of the Ottoman State. 6 Edward Mead Earle, The New Constitution of Turkey, 40 Pol. Sc. Q. (1925): 77. 7 Article 42; see Kuzu (1992), p. 265. 8 Article 31, ibid. at 264. 9 Article 60 and 65, ibid. at 267-8. 10 Article 9, 12, 81, 15, 11, 25 and 65, ibid. at 262-3, 270, and 268. (Voting rights are provided for men only). 11 See Editorial Comment (1908), pp. 842–3. 12 See Erdo˘ gan (2003), according to Prince Sabahattin (during this age, he was one of the rare liberals of the Ottoman state) the Ottoman state was in crisis, because Ottoman society was living under the belief of collectivistic formation (cemaat) like other Eastern cultures. Thus, this society had to build and develop individualism in order to support a western individual based notion of freedom into the Ottoman society. Özbudun, a renowned Professor of Constitutional Law, observes that Turks were a minority group in the chamber because the Ottoman Turks contributed to approximately 10–15% of the population within the Ottoman state. Fifty-six members the chamber were Muslim, 40 were non-Muslim. The Senate had 32 members: 24 Muslims, 8 non-Muslims. Some historians 5 Before

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1908 military officers in the Ottoman military amplified their power in Macedonia, in the Balkan Region, and threatened the Sultan in order to reinstate the Constitution of 1876.13 The Sultan restored the constitution and in the same year, elections provided a majority for the Society for Union and Progress in the Chamber of Deputies (Parliament).14 However, this term did not last long. New wars with Italy (the Tripoli War, 1911–1912) and the Balkan Wars (1912–1913) destroyed social and political developments. The new administration then transformed the second constitutional experience from one of freedom to totalitarianism.15 Turkish political life began to take on a culture of “coups, countercoups, political assassinations, martial law courts, government manipulation of elections, repression of the opposition, and party dictatorship.”16 At least, at this time, there were competitive elections, parliamentary process, and political parties.17 However, in my view, the 1908 military involvement was the beginning of today’s Turkish military tradition: organizing groups underground, watching the system, and intervening with the operations of the elected administration. The Ottoman constitutional movements began in good faith; unfortunately because of wars and the ensuing social environment, they shifted into an autocratic form. They began with chaos and ended with chaos. Professor Aslan lists three reasons for why the Ottoman constitutional movement did not succeed: first, the traditional system was destroyed and a centralized system was built. Second, movements were controlled by bureaucratic elites, and these elites did not bring the people into their movements. Third, the Reformists had a militaristic point of view.18

believe that Sultan II. Abdulhamid had shut down Parliament so as to not face the independence movements by non-Muslim parliamentary members but not excluding those Muslim members from other ethnicities such as Arabs, Albanians, Bosnians and many others. See Özbudun (1989), p. 191. 13 Erdo˘ gan (2003), p. 25. These officers belonged to the Society for Union and Progress (˙Ittihat ve Terakki). This group was organized by bureaucratic elites. In his early military career, Atatürk was a member of this group. However, later, because of some disputes between Atatürk and the members, he left the group. During this time, the Ottoman intellectuals had three schools of thought: Westernists, Islamists, and Nationalists. See more Berkes (1964), pp. 337–346. In the 19th century, Turkish intellectuals began to travel Europe, especially to France to adopt European culture while the nation was still living according to Islamic norms and traditions. The elites initiated the view of the general population as representative of undeveloped culture. See Heper (2000), p. 67. Unfortunately, today’s Turkey’s elites still have the same attitude about country’s people. 14 See Özbudun (1989), p. 193. 15 Ibid. at p. 2. 16 Ibid. 17 See Erdo˘ gan (2003), pp. 26–38. 18 Ibid. at 37.

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2.2 The Constitution of 1921 Due to their alliance with Germany, the Ottoman territories were occupied by Britain, France, Russia, and Greece during the World War I. The Turkish national war of independence began in 1919. Mustafa Kemal Atatürk and his allies defeated all enemy armies from Anatolia in 1922 and the new Republic signed the Lausanne Treaty with the allied powers in 1923. The treaty recognized the creation of the Republic of Turkey. Mustafa Kemal Atatürk formed the first parliament of Turkey on 23 April 1920 during the National War of Independence. On 20 January 1921, the first Constitution of Turkey was enacted by parliament.19 It was a very important constitutional document, the first time in Turkish political life “national sovereignty,”20 was declared and the Turkish Grand National Assembly (parliament) became the only true representative of the nation. Legislative and executive powers were carried out by the Assembly.21 The doctrine of parliamentary supremacy followed in practice. Ministers were chosen by the Assembly, from its own members.22 The Assembly also provided guidance to the Ministers and closely watched the administration’s activities.23 This parliament removed the roots of the Ottoman state tradition from Turkish society. In 1922 and 1923, Parliament abolished the Sultanate and the Caliphate, and established the Republic. In 1923, the Assembly established the office of president and chose the first president of the republic, Mustafa Kemal Atatürk.24 Ministers were appointed by the president but were responsible to the assembly. Executive power was exercised by the president and council of ministers.25 With this legal action, Atatürk became the most powerful person in the new Turkey. In 1923, Atatürk also established the Republican People’s Party (C. H. P.), and then was elected its chairman.26 The party had won almost all of the assembly’s seats in the 1923 election, called “the second parliament” in Turkish constitutional literature. The administrative staff of the party was composed of former military staff.27 During the early years of the Republic, the Grand National Assembly (henceforth Parliament) had destroyed all differences between civil and religious jurisdiction.28 All of the legal system was adapted from European models, including Germany, France, and Italy. Clearly, Atatürk devised all reforms in order to diminish the Islamic point of view from the Turkish society. Today, the success of these reforms remains debatable. 19 See

Altu˘g (2003), p. 43. (1989), p. 194. 21 Altu˘ g (2003), p. 44. 22 Ibid. 23 Erdo˘ gan (2003), p. 48. 24 Edward Mead Earle, The New Constitution of Turkey, 40 Pol. Sc. Q. (1925): 85. 25 Ibid. 26 Karatepe (1997a, b), p. 27. 27 Ibid. p. 28. 28 Ibid. p. 29. 20 Özbudun

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2.3 The Constitution of 1924 The second Parliament enacted the Constitution of 1924. It provided for a unicameral parliament, in which was vested all sovereign powers of the nation, executive, and legislative.29 This Parliament would be elected by a vote of all male citizens of eighteen years of age or more.30 Cabinet members were to be chosen from parliament and would be individually and collectively responsible to the Parliament.31 The Constitution included an article of interest to military officers. During the national independence war, some officers had been elected to Parliament, simultaneously keeping their military official positions. The Constitution of 1924 included a provision for these officers that held a Member of Parliament could not at the same time hold a public office position.32 From 1924 to 1950, the Republican Public party was the ruler of the country. The Republic abolished the Sultanate, but itself became a collective Sultanate mechanism. All public offices and bureaucratic positions were carried out by the party in accordance with its ideology.33 A few times, there were attempts to establish new parties; however, as these movements became more powerful Atatürk and his follower Ismet ˙Inönü banned them from public life.34

29 Article

3, 4 and 5, see Kuzu (1992), p. 291. 10, ibid. p. 292. 31 Article 46, ibid. p. 297. 32 Article 23, No person may hold simultaneously the office of deputy and any other public office. Ibid. p. 294. Karatepe observes that during the first Parliament there was an opposition movement against Atatürk and his reforms. This group was mainly composed of military generals, who had seats in the parliament. With this provision, some of them returned to their military office, while others resigned from military duty and remained. This group had tried to limit Atatürk’s power and block some reforms, which were believed to be against the nation’s moral and cultural values. In the following years, one of the Atatürk’s main concerns was destroying this opposition group. By 1927, the opposition group was largely eliminated from the political arena. See Karatepe (1997a, b), p. 30. Karatepe’s book analyzes the events from outside of state ideology. He offers to Turkey the time for revision of the state ideology. In the middle 1990s Professor Karatepe was in politics. During one of his public meetings he criticized the official state ideology, was found guilty by the state security court (Turkish parliament abolished these courts in 2004 to comply with the EU legal system) and sent to prison for one year. After this event, he left politics and returned to the university. Özdemir argues that the meaning of change for Turkey would be to revise the official ideology towards tolerance and meaningful democracy. See Özdemir (1995a, b), p. 219. 33 Ibid. p. 122. 34 Ibid. pp. 36–47. 30 Article

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The consolidation of the Republic was not easy during the first fifteen years of the new system. Atatürk and ˙Inönü (the second president of Turkey after Atatürk’s death in 1938) used the party as a tool to develop and stabilize reforms to change social structure.35 The new rulers created special courts to destroy the voices of the opposition. These courts judged and charged known members of the opposition, imposing the death penalty or sending them into exile.36 The party effectively became the state. The state developed its own ideology and with it suppressed the nation. Instead of stabilizing the parliamentarian system, the new rulers created partisan totalitarianism. The Republican Public Party and the state became one and the same, like Siamese twins. In spite all of this, in 1946, some members resigned or were dismissed from the Republican Public Party and formed the Democrat Party. It was the beginning of the multi-party political system in the terms of the Western model of political life.37 In the following section, I will explore the Constitution of 1961 and the amendments on that constitution after the 1971 military intervention. In order to understand the development of Turkish democracy; it must be explained in historical chronological order.

3 Military Coup D’etats and Constitutions in the Republic of Turkey In this section, I will explore the role of Turkish military coups and the construction of new constitutions under military control. Almost all the founders of the new republic had a military background. Atatürk, himself, was a general who resigned from the Ottoman army. Historically, all Turkish states were created by Turkish militaries. Thus the Turkish Armed Forces inherently sees itself as the founder and protector of the country. Traditionally, the Turkish military became involved in politics when political conditions became unstable, or even when they were stable, the military generals feared they might lose their power and authority. Whole military coup d’etats were held in the name of Kemalism.38 But the real reason behind this political debate 35 Ibid.

p. 49. Karatepe provides interesting information about Turkey’s demographic structure: in the early 1920s Turkey’s population was 14 millions, with 10 million were living in the rural areas. 36 Ibid. pp. 40–1. 37 Almost all Turkish legal and political scholars agree that 1946 is the beginning of a multi-party political system in Turkey. 38 Kemalism had developed six principles (in the Turkish literature they were called six arrows): – Republicanism: It eradicated the Sultanate and Caliphate and replaced the sovereignty of the nation, which was expressed by the Grand National Assembly (parliament). This principle has never been challenged seriously. – Secularism: There should be no state religion. There should be secular control in the society, especially in the fields of law and education. – Nationalism: There were many reforms in language and history, based on nationalistic perspectives. In the following years, nationalism became self-esteem and pride in the Turkish nation.

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was to create a balance of power and not to decrease the power of the military rule. Ironically, the Turkish military generals were used to playing this game against the founder of the Republic, Mustafa Kemal Atatürk.39 Turkish democracy has always run under a military umbrella, ever since Mustafa Kemal Atatürk established the Republic in 1923. The army’s relationship with the government has shown different features during different periods, ranging from heavy military influence to seeming detachment. The Turkish army has exercised its power always in the name of Turkish Defense and Security. What this has often translated into is a self-defeating democratic system that has been subject to the watchful eye of the military, paradoxically in the name of ensuring the security of democracy. The extent of military involvement in Turkish politics made Turkish democracy very weak. After every military intervention, political parties were banned and the whole society was silenced. For many years, people did not want to be involved in any religious, political, and cultural activities for fear of reprisals. In addition, many individuals lost their jobs. Clearly, the strong role of the military prevented and destroyed the establishment of a strong and stable democratic system in Turkey.

3.1 The First Military Coup in 1960 and the Constitution of 1961 In order to analyze the 1960 military coup, it is necessary to scrutinize the events which led up to it from 1946 to 1960. This coup made clear that the Ottoman state military tradition of interference was still alive within the modern Turkish military. This point of view began in the late 17th century with the replacement of the Sultans. The world had changed over time, but the Turkish military remained the same. The only thing altered was the underlying military ideology which had transformed from Sultanate to Kemalism. It should be acknowledged that the military held high prestige in Ottoman society40 as it was seen in today’s Turkish society. From elementary – Etatism: The State should play an active role in economic development. Etatism became the main government economic policy during the early years of Atatürk. – Populism: Turkish society was not formed from social classes. It is defined the mutual responsibilities of the individuals and the state toward each other. – Revolutionism: This is the main structure of Atatürk reforms. This principle introduced to the nation as a grand tool in order to change society’s culture and tradition. See Weiker (1981), pp. 5–7. Feroz Ahmad stresses that as long as long the Turkish military believes itself as a guardian of the Republic and the Kemalist inheritance, there is risk for a coup in Turkey, the author adds that if the elites of the state and a majority of the population think that the only solution for the crisis is military intervention, and then the military will agree. See Ahmad (1993), p. 213. 39 See Özdemir (1994). This outstanding book explains how the generals were reacting against Atatürk in his era. Özdemir was one the most eminent writers about the Turkish military and its affiliation with politics. 40 See Weiker (1981), p. 37.

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school up to university, Turks have been taught that they are part of a military nation (Ordu-Millet). During the single-party years (1923–1950) 17–20% of parliament members had a military background. In 1950 this percentage dropped to 6%.41 After the establishment of the Democrat Party (DP), the ruling Republican Public Party (RPP) brought the country into an early election in 1946 (which was to be held in 1947).42 The Democrat Party, established in 1946, was just beginning to structure their representatives and placements within the state when the elections were called. The ruling party did not leave enough time for the Democrat Party to prepare. The 1946 election resulted with the Republican Public Party taking 403 seats and the Democrat Party taking only 54 seats.43 President ˙Inönü intentionally appointed Recep Peker as Prime Minister to suppress the DP. Recep Peker held totalitarian beliefs and wanted to limit almost all the rights of the opposition.44 Eventually, President ˙Inönü forced Peker to resign from office, because of complaints from opposition members, and replaced him with another RPP member.45 From 1946 to 1950 the DP fought for civil liberties and rights. Under scrutiny from the Democrat Party the RPP enacted a new election law in 1950 that provided elections under the control of judiciary.46 This legal action caused a huge change in the realm of Turkish politics. The capture of 408 seats by the DP in 1950 was a great victory. It was time for change but there was still fear concerning issues of bureaucracy and military.47 The main reason for hesitance stemmed from the fact that the country had been ruled for 27 years under a single-party system (the RPP) and that this ruling party had been known to use the military and bureaucracy48 against its own people. One-month post-elections, on June 2, 1950, the president of Turkey became Celal Bayar and the Prime Minister became Adnan Menderes, both DP members. The government received information that the military had not accepted the election results and would push for a coup against the newly formed government.49 Prime Minister Menderes quickly dismissed 15 generals and 150 colonels; he also changed some officer duty posts.50 This incident illustrated to the Turkish populace that even if there were no existing problems within Turkey, if anyone or thing were to conflict with military ideology it might cause tensions between the army and government. As was in the Ottoman constitutional movements, multi-party experiences in Turkey have historically been known to begin in chaos.

41 Ibid.

p. 101. Karatepe (1997a, b), p. 117. 43 Ibid. at 118. Erdo˘ gan gives different numbers; RPP: 395, DP: 64. 44 Ibid. at 119. 45 Ibid. 46 See Erdo˘ gan (2003), p. 76. 47 See Karatepe (1997a, b), Darbeler…, p. 209. 48 Ibid. 49 Ibid. p. 210. 50 Ibid. 42 See

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Unfortunately, the DP focused more of its attention on trying to stimulate economic development rather than political and administrative reforms.51 Karpat criticized Prime Minister Menderes’ replacement of the Chief of the General Full Staff (Highest commander in the Turkish military) and other army officers instead of making a complete military reform. Karpat failed to recognize the reality and tensions within these relationships and that the civil bureaucracy and the military were still very faithful to the RPP. Even former President ˙Inönü, as a RPP member during 1938–1950, wished to reform the military; however, Chief of the General Full Staff, Fevzi Cakmak (one of Atatürk’s friends and follower of a mainly Germanic national view) blocked ˙Inönü’s actions.52 Additionally, for the last 20 years, governments have been trying to reform the military with none being successful. The 1954 election ended with another great victory of the DP. The opposition won a meager 30 seats, while the DP won 430 seats.53 This election renewed confidence within the DP, especially Prime Minister Menderes. After this election victory the DP began to mute the voice of opposition, especially the RPP.54 The DP now performed the role of RPP, an ironic political ailment of modern Turkish and world politics. That is, when the opposition party becomes the ruling party they find excuses to ignore their promises to increase the rights of society and to reform the administration. The DP’s oppressive policies and practices increased between 1954 and 1960 and the citizens of the state did not fail to notice this.55 The 1957 election gave a weakened majority to the DP. However, between 1953 and 1954, military officers created secret units to bring another military coup.56 After the election in 1957, 51 See

Karpat (2004), p. 110. This insightful study consisted of many articles from an outsider’s perspective of the Turkish state ideology. I should make clear that even today state elites-consisting of military, bureaucrats, and intellectuals behave totally different than the government. Ruling governments do not have the power to reform Turkish administration due to the power of military and the Constitution of 1982. 52 See Karabelias (1998), p. 22. 53 See Özbudun (1989), pp. 199–200. 54 Karpat (2004), p. 113. See also Erdo˘ gan (2003), p. 79. 55 Ibid. at 114. Karpat explains the events from the perspective of the military. During this time the RPP realized that there was no way to get the ruling party position against the DP. Thus, the RPP began attacking the DP’s religious freedom policy and made the DP a target for the military. The DP leader Menderes thought the only way to stop these provocations was by eliminating the voice of the RPP. This was a big mistake. The second president ˙Inönü was still the leader of the RPP. The military respected him enormously. The single-party era made all Turkey believe that Atatürk and ˙Inönü were the defeaters of all enemies who attacked Anatolia. The single party era denied recognition to those who sided with Atatürk and ˙Inönü to rescue the country. The national war of independence was a collective movement against the allies’ powers. It was not only just a one or two person movement. Currently, the writing of history books is still strictly surveillanced by state ideology in Turkey, and thus sometimes produces fanaticism in the interpretation of historical events. There is only one truth in a policed state: “the truth” is known and provided only by state authorities. 56 Ibid. Karpat also notes that in the aftermath of the 1950 election four generals offered President ˙Inönü the closure of the DP to keep him in power. Strangely, ˙Inönü turned down this offer, at 110. In my view, the US began to scrutinize Turkey in the late 1940s because of the relationship between the former USSR and Turkey. At the close of the Second World War, Turkey declared war against

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tensions between the DP and the RPP increased to alarming levels.57 The DP enacted new laws, such as the creation of an inquiry committee to search RPP and military officer relations. RPP leader ˙Inönü began to warn the government to stop these actions.58 In late 1959, the “government began to arrest journalists and opposition students and to move toward direct repression of the RPP.”59 In the early 1960’s there were student demonstrations,60 and violent fights in Istanbul, Izmir, and Ankara, which the Government believed were encouraged by the RPP.61 The military denied government orders to arrest or fire against the demonstrators.62 Finally, in April 1960, one of ˙Inönü’s meetings was banned by the government with the support of military forces. In April 17, 1960 ˙Inönü held a meeting at his own house in Ankara inviting some retired generals and admirals to remind them that the

Japan and Germany. Turkey was then invited to the UN meeting in San Francisco. President ˙Inönü gave orders to Turkish delegate Feridun Cemal Erkin to state that “if the US government asked, to tell them Turkey would begin a multi-party system in the very near future.” I believe that ˙Inönü preferred the continuation of the single-party system in Turkey, but ultimately he knew it would isolate Turkey from the modern world. It was also time to change the nationalistic German view. Ever since 1950 the Turkish state mainly used tyrannical methods to suppress the opposition. See more Karatepe (1997a, b), Darbeler…, p. 199. 57 See Özbudun (1989), p. 201. 58 See Karpat (2004), p. 115. 59 See Weiker (1981), p. 11. 60 Ibid. 61 The RPP denied this accusation during this time. The party claimed that these movements were coming out from the nation. However, the same nation at first election disapproved this claim by voting in the Justice Party. One RPP’s claim was that the government was arresting students and killing them using meat grinders. The truth was there were a few arrested students and none of them were killed by government order. This was a provocation to conjure a military coup. Interestingly, in the following years, this truth came out. It was a game used as an excuse for a military coup. See more, Karatepe (2000) This is another outstanding book from Karatepe. He successfully argues that the single-party era established the ideology of the Republic of Turkey. In Turkey every crisis was caused out of the struggle between the nation and state ideology. In addition, he argues that Turkey is not governed by the rule of law; it is under the rule of a police state. During the writing process of this paper, one of my main concerns is examining sources of information provided outside the norms of state ideology. It is time for Turkish elites (military, bureaucracy and intellectuals) to change open up the state ideology towards a more liberal point of view. It is the people and not the state that may have ideologies. It is an unfortunate thing that Turkish academia seems to prefer state ideology instead of modern scientific knowledge. In my view, most trusted sources of information about the Turkish military, (except for a few exceptional Turkish scholars), are from the Turkish socialist intellectual point of view and from Western World researchers. See e.g. Ahmad (1977) and (1993). 62 See Weiker (1981), p. 11. See Karpat (2004), p. 45. Özbudun observes that the relationship of the RPP and the military: “as for its social bases, the RPP has of ten been described as a coalition between the central military-bureaucratic elite and local notables, the former clearly being the dominant element especially at the level of central government.” See Özbudun (1989), p. 196.

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protection of the spirit of the revolution was the military’s duty.63 The next day in parliament ˙Inönü stated there would be a military coup and that “when conditions are complete, revolution becomes a legitimate right for the nation, for the citizen begins to think that no other institution or way exists to defend his rights’.”64 Mr. ˙Inönü turned a blind-eye towards his party’s authoritarian history, claiming that, at the time, such behavior was justified by the World War II environment. The DP had wanted to eliminate the powers of the elite group whereas the RPP was trying to destabilize the rural areas. Both parties, however, were similar in their use of methods of suppression to reach their own goals. The DP was trying to maintain a close relationship with the “average” people in the country. However, the DP was aware of the growing strength of the RPP and the fact that they might try to engineer a coup, though they could do nothing to stop it. It was not an easy task for ˙Inönü to accept a multi-party system; he knew that with the election, the RPP would never win a majority in parliament. Thus, he attacked the DP’s political practices in the name of protecting the Atatürk Revolution. In doing so, ˙Inönü prepared the conditions for the military coup of 1960. Karpat very concisely summarizes this coup as “the takeover [that] had been basically the class reaction of the old bureaucratic-intellectual-military elites to the rise of a new civilian order with its own social, political, and cultural values rooted in the traditional society and in the contemporary capitalist economic system.”65 On May 27, 1960, a military coup was carried out in Turkey by the junior army officers under the leadership of General Cemal Gursel.66 The DP opponents were silent and no violent events occurred at this time.67 The Western World seemed largely uninterested. It reacted with only a minor public outcry, coming out of Western Europe, which deemed the 1961 coup as a violation of democratic principles.68 Turkish liberals and democrats had believed that the Western World would support Turkey throughout this turmoil and help defend democratic principles. They assumed that the Western World would not recognize a military administration. Yet their hopes were largely unfounded. It was time for Turkey’s liberals and democrats to rethink and restructure their administrative practices and rely less on prescriptions given from abroad. The only way to prevent military coups in Turkey would be to limit the army’s power and create a strong executive branch of government to stop abuse of power in regards to democratic principles. The 1960 military coup’s main agenda was to destroy the DP and its roots by affirming the power of the RPP.69 Karpat recognizes that “the military in power displayed from the beginning to end of their rule an almost paranoid hatred of the

63 See

Hale (1994), pp. 105–6.

64 See Karpat (2004), p. 115. For a parallel source see also Karatepe (1997a, b), Darbeler…, p. 218. 65 Ibid.

at 117. Hale (1994), pp. 110–3. 67 Ibid. p. 120. 68 Ibid. 69 See Jacoby (2004), pp. 134–5. 66 See

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DP and a partisan preference for the RPP.”70 All the DP deputies and a number of state officials, police officers, and businessmen were arrested and accused of corruption and violation of the 1924 Constitution. They were tried under a new law and court with their crimes defined by the new writings of the junta.71 The new law was in violation of some basic law principles, such as “ex post facto” and the natural judge. On September 29, 1960, the DP was closed down by the junta because they failed to hold a national congress every four years.72 It was a legal farce when first the junta arrested all the DP deputies and locked them into prison cells, effectively shutting down the party. On December 16, 1960, the National Unity Committee (NUC) established the Constitutional Assembly which consisted of the RPP deputies and a group of leftist liberal intellectuals.73 On July 9, 1961 the Constitution was approved by a national referendum, in which 81% of the registered voters participated, resulted in a 61. 7% yes vote.74 In 1961, there was an election under the control of the National Unity Committee. No parties won a majority, even though the RPP was supported by the NUC. From 1961 to 1965 there were coalition governments in which the military played a highly active role with the formation of these governments. There were also two more military coups attempted by junior officers within two years of the 70 Karpat (2004), p. 117. In addition, he states that the media defended the military intervention as a

necessary action to save democracy and Atatürk’s reforms. In my point of view, one of the biggest problems in Turkish democracy is the media, which does not value democratic culture and always seem to back up and defend military actions. See more about corruption in Turkish media, Finkel (2000), pp. 147–66. 71 See Weiker (1981), p. 102. 72 See Hale (1994), p. 127. The court (Yassıada) delivered its verdict on September 15, 1961, fifteen were sentenced to death, thirty-one were sentenced to life imprisonment, and the rest (402) received minor imprisonment charges. In the final stage, Prime Minister Adnan Menderes, Foreign Minister Fatin Rü¸stü Zorlu, and Finance Minister Hasan Polatkan were hanged. The other twelve received the death penalty. In the following years they were granted amnesty and released from prison. One of them was the ex-Chief of the General Full Staff, General Rü¸stü Erdelhun, I think the military made a good decision, from a military perspective, not hanging the former general. Even a general from the DP would not be hanged by the hands of the junta because they did not wish to create a tradition of counter coup action. Former President Celal Bayar also received an amnesty because of his old age thus; he was spared a sentence of being hanged. 73 The junta legalized itself as a legal institution called the NUC the day after the military coup so that it could govern over the country. See Karpat (2004), p. 119. For me, to understand Karpat’s description of the leftist liberal intellectuals was very difficult. These people were supporting the military actions from the beginning to the end, and they supported the single-party ruling. I liken to call them “leftist authoritarian intellectuals.” 74 The Constitution of 1961 was prepared under the chairman of Sıddık Sami Onar, the rector and administrative law professor at Istanbul University. Professor Onar was one of the single-party produced authoritarian law professors. After the military coup, some professors gave advertisements to newspapers approving the military’s actions. Professor Onar was one of them. Unfortunately, he introduced a path. The Constitution of 1982 was also prepared by a supporter of the military, a constitutional law professor named Orhan Aldikacti also from Istanbul University. Legal scholars were one of the main supporters of the Turkish military during the military coups. How does a man who believes in the rule of law defend a military intervention? See more about the academia of Turkey to support the military, Karatepe (1997a, b), Darbeler…, p. 221. Erdo˘gan (2003), p. 85.

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civilian government in 1961.75 In 1965 the election provided a majority to the Justice Party: inheritor of the DP. The same thing occurred again in 1971 when the military forced the Justice Party to resign from government, which they had held from 1965 to 1971.76 Oddly, the same thing occurred in the 2002 election when the nation opposed the 1997 semi-official military intervention and provided a majority to the Justice and Development Party. What was the Constitution of 1961? Most Turkish legal scholars agree that until today it was the best constitution of Turkey in terms of civil liberties and democratic principles. However, a real social challenge existed. Karpat claims that “the Constitution of 1961 was out of touch with Turkish society and culture” and that “some of its members were more at home in New York, Paris, and Frankfurt than in the Turkish towns.”77 The Constitution of 1961 was a liberal document (!). It created new institutions and relationships among the three branches of government, such as a bicameral parliament: the Assembly and Senate, the president being above the parties, the creation of the High Committee of Judges to deal with the personnel affairs of judges, the chief of General Full Staff being responsible to the Prime Minister instead of the National Defense Minister, the creation of the military court system, and the establishment of the Constitutional Court and the National Security Council.78 One noteworthy provision was made for the military, increasing its power in the constitutional system. Half of the members of the National Security Council were army commanders. In addition, the creation of military courts with an appeal division and the Military High Administrative Court allowed the military to enhance its power in Turkish society through the manipulation of law. With the Constitution of 1961, the military’s de facto position in Turkish politics became de jure. In addition, after the coup, the military created exit guarantees before the live political arena. In sum, because of the inexistence of a democratic culture, the Constitution could not find its own real place in terms of civil liberties and rights within the Turkish legal system.79 With the 1961 coup “the military generals began to act as mediators in civil society.”80

3.2 The Military Intervention of 1971 and Constitutional Amendments The Constitution of 1961 could not prevent the political crisis of Turkey in the years to come. In early 1971 leftist urban militant groups had increased the violence against 75 See

Karabelias (1998), p. 23. See Tachau and Heper (1983), p. 23.

76 Ibid. 77 See Karpat (2004), p. 122. It seems Karpat analyzes the Turkish society elites in using the Western

social and historical methodologies. Erdo˘gan (2003), pp. 89–104. See also Karatepe (1997a, b), Darbeler…, pp. 227–30. 79 See Erdo˘ gan (2003), ibid. p. 89, for the parallel idea, Karpat (2004), pp. 122–3. 80 See Ahmad (1981), p. 7. 78 See

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the public.81 The Justice Party government could not bring an end to this violence. For the military it was yet another legitimate reason to move into politics. On March 12, 1971 the military gave a memorandum to Prime Minister Suleyman Demirel suggesting that he and his government resign.82 Mr. Demirel followed these orders as he had done in 1980. It was the second military intervention in the history of the Republic. This time was different from the first. The military created a technocratic government mainly from the RPP partisans under the veteran RPP politician, Professor Nihat Erim. The military believed that declaring martial law and enacting the constitutional amendments would resolve the problems of politics.83 Until 1973 the country was administrated by a technocratic government under the control of the military.84 The main assumption was that the 1961 Constitution provided a broad spectrum of civil liberties and rights and as a result, violence flourished among the youth populace.85 From 1971 to 1973 almost all social organizations and associations were banned as defined by Martial law.86 Another weakness of the Constitution was that some articles limited the government’s power. These articles were embossed into the Constitution by the military to prevent a strong government, as they had feared from the DP.87 In other words, if a government were to win a majority, like the DP, there had to be some mechanism for a check and balance in terms of the government’s power. As a result, the technocratic governments enacted constitutional amendments; increasing arrest periods for suspects from 24 hours to 7 days (later increased to 15 days), prohibiting state servants from joining a union, giving power to government to create decree as law (escaping from judicial review), and establishing the (special) state security courts88 which were not abolished until 2004 by the Turkish government in order to comply with the European Union (EU) legal standards. Özbudun calls the 1971 a “half coup” that prevented violence. There were some military officers who attempted to make a radical coup but some higher-ranking commanders stopped them with a timely memorandum (1971 military intervention).89 His conclusion seems accurate because after creating a technocratic government, the military generals eliminated radical leftist officers from the army. It was a two-sided military coup; one target was the civilian government and the other was the radical leftist military officers.

81 See

Tachau and Heper (1983), p. 23. Weiker (1981), p. 103. 83 See Tachau and Heper (1983), p 24. 84 See Karatepe (1997a, b), Darbeler…, p. 237. 85 See Weiker (1981), p. 104. 86 See Özbudun (1989), p. 203. 87 See Karatepe (1997a, b), Darbeler…, p. 238. 88 Ibid. pp. 239–40. 89 See Özbudun (1989), p. 203. For same information, see Karabelias (1998), pp. 23–4. Karatepe (1997, b), Darbeler…, p. 237. 82 See

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In 1973 a new election took place in Turkey. No party won a majority. From 1973 to 1980 there existed many coalition governments in Turkey which increased polarization in almost every aspect of society and state, even within the police forces.90 The rightist and leftist guerillas were fighting in the streets causing many unresolved murder cases while the economy was at its very worst; people were waiting in lines for gas, oil, and bread.91 In December 1979, top generals under the leadership of the Chief General Full Staff, Kenan Evren, issued a warning letter to the President to provide the government and party leaders with incentives to prevent terror and violence.92 However, even with this warning, partisanship was more important to leaders than the country’s problems. In addition, parliament party arithmetic prevented the election of a new president over the course the next five months.93 When the constitutional limit of six months is reached and a president is still not elected, parliament needs to close and a new election held. Before this constitutional process, the military, on September 12, 1980 carried out a coup, forcibly shutting down parliament and all parties, unions, and associations involved. The 1980 military coup, its consequences and the 1997 semi-official (post-modern) coup will be interpreted in terms of Turkish democratic problems, in the following chapter.

3.3 Conclusion The Constitutional movement began in Turkish society in the early nineteenth century. This was the time of the Ottoman era. The Constitution of 1876 was established in the Ottoman era, lasting for only a year. It ended with the Sultan declaring that it was no longer necessary because of martial law thus ending Parliament. With this Constitution Turks began to learn about the parliamentary system and the establishment of Western style democratic institutions. However, the 1908 constitutional movement appeared out of military officers’ pressure to the Sultan. It was the beginning of military interventions in pushing the constitutional process. Clearly, the Ottoman era Turkish constitutional movement began and ended with chaos. During the national war of independence, Atatürk and his colleagues created the Constitution of 1921 with the Constitution of 1924 to follow. Up until 1950 Turkey was ruled under an oppressive single-party regime. In 1950 the multi-party system was introduced

90 See

Tachau and Heper (1983), p. 25. When I was 7 years old one sad memory from those days is when my friends and I heard from our elder persons that there were two types of police: one who is under cover (in Turkish called civil police) the other was community police (toplum police). Community police stood for being good, and those under cover were considered bad. You did not know when under cover police would come and take you away. After the 1980 military coup this separation disappeared from the public thought. 91 See Ahmad (1981), pp. 5–24. In those days it was considered normal to see people dying on the streets from stray bullets while passing through the areas where rightists and leftists fought. 92 See Karatepe (1997a, b), Darbeler…, p. 247. 93 See Özbudun (1989), p. 207.

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to Turkish politics. However, in 1960 a military coup hastily ended this first multiparty experience. After just a few years the military left politics to become involved with the civilians in the Constitution of 1961. In 1971 another military intervention erupted in order to prevent violence from leftist groups. The 1971 intervention led to the amendment of the Constitution in 1961 under the technocratic government. The creation of state security courts and the limitation of rights would not stop terror and violence. In 1980, yet another military coup developed in Turkey as a response. Unsurprisingly, the military’s intervention did not cure Turkey’s democratic problems. The 1961 coup’s aim was to re-establish the single-party ideology. To this end, they sought to limit the government’s executive branch of power because they did not wish to see a strong government challenge the ultimate authority of the military. This aim was also enmeshed in the 1971 constitutional amendments. The military was untrusting of political parties because of the DP’s past behavior. They only trusted the RPP: proven followers of the state ideology. In sum, with military interventions Turkish democracy became weak and was unable to develop requisite democratic institutions. Making constitutions with military interventions became a legal game. It may be arguable; however, that because of the inexistence of a parliamentary culture, there was no real means for a stable democracy. Turkey can be seen as a contemporary social laboratory for political and legal experiments, specifically to determine” whether or not an integral Western system of politics and conceptions can be instituted in countries with different cultures, history, economics and social structure.”94 Lastly, the Turkish democracy and constitutional movements were driven by elites from the military, bureaucracy, and intelligentsia, individuals who have hardly experienced the nation’s problems up close and personally. Thus the state continued its struggle with the nation.

4 Problems of Turkish Democracy, the Last Forty Years The terms of military-civil relations, a problematic issue of Turkish democracy; the legitimacy of the constitution, the powers of the president and the cabinet, the National Security Council, and the privileges of the military, will be examined. Without looking at the role of the Turkish military in Turkish politics there would be no way to understand and analyze such an unbalanced democracy. As noted earlier, Turkish military interventions in politics, especially in the process of making constitutions, brought forth a weak model of democracy to Turkey. Crossing over the red lines of military borders brought to a halt the construction of real and meaningful democratic mechanisms within Turkey. Today many legal scholars of Turkey claim that the Constitution of 1982 should be replaced with a civilian constitution. However, since 1982 constitutional articles were amended many times rather than being replaced. Establishing a civilian constitution in Turkey means there must be an elimination of power from the military in all legal and political fields. Currently, 94 See

Karpat (2004), p. 122.

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in Turkish politics there is a glimmer of hope for change, for the establishment of a new and meaningful constitution. I argue for the strategy of the current government. The EU membership bid will provide the government with the means to implement its own agenda rather than to follow the mandate of the military.

4.1 The Term of 1980–1983 from Military Power to a Civilian Government: The Establishment of the Constitution of 1982 The 1980 military coup had absolutely eliminated terror and violence from within Turkish society. (However, in 1984, Turkey was faced with other types of terror and violence, this time from the separatist Kurdish movement, the PKK). This gave the military generals justification for yet another coup. The leader of the military junta, Kenan Evren made a public statement on the first day of the coup, September 12, 1980, at 4 a.m. stating: “The aim of this operation is to safeguard the integrity of the country, to provide for national unity and fraternity, to prevent the existence and the possibility of civil war and internecine struggle, to reestablish the existence and the authority of the state, and to eliminate the factors that hinder the smooth working of the democratic order.”95 This intervention might fall into the category as one of the closest legitimate actions in terms of Turkish military coups. All across Turkey violence and terror was rampant. In order to legitimize the coup before the nation, the military waited over six months causing many young lives to be lost. Thus, ex-prime minister Suleyman Demirel, the leader of the Justice Party, and his supporters, argued publicly that the military had failed to exercise its power in order to prevent terror and violence under martial law prior to the coup so that they could legitimize the coup later.96 Agreeing or disagreeing with this skeptical verdict would not make any difference 95 See

the General Secretariat of the National Security Council (1982), p. 229. Before the military coup more than 15,000 people (sources provides different numbers) were killed because of the clashes between rightists and leftists. After the military coup, the security forces detained 32,527 terrorists and seized 168,000 firearms. See Johnson (1982). It seems 15, 000 is an exaggerated number. According to General Evren’s broadcast, 5,241 were killed, and 14,152 were wounded due to terror and violence. See Özdemir (1995a, b), Türkiye… pp. 407–8. Major Johnson closes his arguments by stating that the military must continue to play an active role in Turkish politics. Otherwise, Turkey may become similar to Iran. He claims that in order for the Turkish state to survive this role should be reoriented to renew and stabilize Turkey instead of the military taking guardianship of the republic. Major Johnson does not think Turks have the capacity to develop a democracy in the country with its civilians. The Western world must look at the Islamic world from a reasonable window [using scientific sources], not solely from information extracted from CNN or an Orientalist perspective. I would argue that Turkey would never become like Iran. Because Turks follow the Hanefi school of thought within Islam. In this school, there is no way of establishing a religious autocratic group like in Iran’s Mullahs (religious leaders). 96 See Tachau and Heper (1983), p. 33. As an outside observer of Turkey, Cornell claims, “Apparently, the military had been planning the coup for close to a year, and spent considerable energy mapping the extremist groups responsible for the violence.” See Cornell (2004).

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when analyzing the reasons behind military coups in Turkey. This outcome proves the Turkish military gives priority to legitimizing interventions. But at the same time, the military violates the country’s constitutions with these interventions. Consequently, after every coup, the first public statement made includes: “we [the military] exercise the guaranteed power of the internal service code in order to protect the country.”97 A code article is not above the constitution, according to the Turkish legal system, just as in modern world legal systems. In addition, the Turkish criminal code prohibits coups and all their attempts. The legitimacy of establishing a constitution belongs only to Parliament in Turkey, not the military. Why does the military not follow Mustafa Kemal Atatürk’s path? Even during the national independence war and its aftermath, the Parliament of Turkey prepared the Constitutions of 1921 and 1924. Legitimacy is thus exercised by the military and not by the nation through Parliament. This is the first legal problem of Turkish democracy. Thus, the Constitution of 1982 is not legitimate in terms of institutional power. Parliament, not the military, prepares and enacts constitutions in modern day democracies. One thing was very clear: the nation greatly welcomed the military as a savior of the country because at the time they supported the restoration of law and order and the elimination of violence and terror.98 Simultaneously, the military achieved further public support because, at the same time, inflation had also decreased.99 However, this economical progress failed in following years. This made it clear to the generals that “military interventions in politics are likely to create as many problems as they solve.”100 The 1980 Junta first dissolved Parliament then the government, simultaneously imposing Martial law with extended powers given to commanders over all Turkey. With new legislation, a law on Constitutional Order, dated October 27, 1980, legislative and executive powers would be exercised by military members (Junta leader and Chief of the General Staff, Evren, Commander of land forces, General Nureddin Ersin, Air Force Commander, General Tahsin Sahinkaya, Navy Commander Admiral Nejat Tumer, and Gendarmerie Commander General Sedat Cilasun) of the National Security Council (NSC).101 97 See

Özdemir (1995a, b), Türkiye…pp. 407–8. Özbudun (1996), p. 130. 99 Ibid. See more Altan Yalpat, “Turkey’s Economy Under the Generals” (1984) 122 MERIP Rep. 16–24. 100 See Hale (1994), p. 246. 101 Ibid. p. 247. Hale also notes that the military junta’s aim was to leave power to the politicians which General Evren clearly announces at the second media broadcast after the military coup. General Evren clearly stressed to the nation to “turn over the administration of the country to a liberal, democratic, secular administration based on the rule of law, which would respect human rights and freedoms…following the preparation of a new constitution, electoral law, political parties act and related legislative arrangements.” Sometimes in the academic world, scholars compare Turkish military coups to Latin American coups. In my view, there are three main differences between Latin American military coups and Turkish coups; Turkish military interventions took place following the orders of the military hierarchy, which Latin American coups do not follow. Secondly, the Turkish military turns the power to the civilians after 1–3 years has passed from the time of the coup with a new constitution or constitutional amendments to follow. The military does not see itself as an 98 See

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Political parties were not officially outlawed, but their activities were banned, and their leaders were locked in a military camp.102 On September 21, 1980 a new government was established by non-party technocrats through an order of the NSC under retired Admiral, Navy Commander Bulent Ulusu.103 One of the ministers was future Prime Minister and President of Turkey, Turgut Ozal. He would be responsible for economic affairs as a deputy minister. He had experience from the World Bank and connections with overseas financial institutions.104 In actuality, he was working in the Suleyman Demirel administration to impose economic programs before the coup.105 During the military regime [from 1980–1983] there was an enactment of a new Higher Education Law, which established a Higher Education Board in order to eliminate the independence of universities from the government.106 Many eminent scholars were dismissed from universities without reasonable grounds by martial

alternative administration for the country. However, Latin American militaries, after the coups, establish militaristic governments and administrations. Thirdly, the most important difference is that after the coup has taken place the Turkish military insistently dictates its own agenda and ideology to the new civilian governments, especially that of secularism and Kemalist principles. However, in Latin America military coups do not dictate this kind of ideological persuasion to its people. 102 See Özbudun (1995), p. 305. Professor Özbudun was an eminent constitutional law professor at Ankara University. Unfortunately, Özbudun’s detailed analysis and arguments do not take place in his Turkish written books, including his constitutional law book. I would assume this is the case because he fears military harassment. If a book is considered unreadable to Turkish society, it might not affect the military’s power, since it influences very few people. 103 See Özdemir (1995a, b), Türkiye…p. 441. 104 Ibid. at 442–3. 105 Ibid. 106 See Hale (1994), p. 253. Hale misunderstands the situation when he claims that “new laws ended their [universities] independence from the government.” Universities lost their privileges within the system. But they did not lose their power. All universities in Turkey are still representatives of the state ideology [there are a few private universities that may differ]. Unfortunately, following state ideology instead of doing scientific research does not provide quality education. Mostly, professor titles pass from father to son or other family relatives. Before hiring a person into the academic world, professors check their background and references. Referees should also have the same ideology as future employer professor’s do. However, currently (in 2019) according to the same law, universities so may be responsible in the eyes of the state, their rectors are appointed by the President. Governments finance universities and now may able to control them. The aim of the Higher Education Law was supposedly clear to civil elites that universities should be controlled by the state via the President’s appointing power. The military expected all presidents of the country to have a military background or he/she should be supported by the military. Today (in 2019) the president of the country controls everything including appointments of the rectors.

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law commanders,107 even though it openly violated their human rights.108 However, Turkish society believes that violations of human rights are a problem of the individual, not society or others not directly affected by such actions. After establishing domestic security, the National Security Council established a Consultative Assembly, which shared legislative powers with the NSC, and in reality the final word belonged to the NSC.109 The Consultative Assembly and the NSC formed a Constituent Assembly. The Consultative Assembly was made up of 160 members chosen by the junta or its affiliates.110 A constitutional text was prepared by a fifteen-member committee under the chairman Orhan Aldikacti,111 a constitutional law professor at the University of Istanbul. Paradoxically, in a Turkish democracy almost all Turkish academia support and aid military interventions, and thus, their political agenda. During the process of making a constitution, constitutional and administrative law professors were in the front rows ready to support their military leaders. The committee provided a draft in July 1982, which was later amended in the Consultative Assembly and then in the NSC. They inserted a number of crucial provisional articles into the constitutional text.112 The constitution was explained to the nation by junta leader Evren,113 and conveniently, any criticisms made about his speeches were banned.114 The Constitution of 1982 was presented to a public referendum in November 1982, with 91.27% of the nation participating. Later, the document was approved by 91.37% of the voters.115 With only one vote, voters chose both the constitution and a new president.116 A “yes” vote for the constitution was also 107 Ibid.

Hale again dismisses some facts including that before the coup, some professors were involved in the supporting of violence and terror between rightists and leftists. Universities were the arenas for this ideological war. However, this situation was not an excuse for the dismissal of eminent scholars from their university positions. In the late 1980s and the early 1990s most of them returned to their jobs. During my faculty years at Istanbul University, I witnessed formerly dismissed professors showing an increased amount of respect for human rights issues compared to other professors. Without facing discrimination or persecution, Turkish intellectuals hold their place behind power figures and the status quo instead of defending rights and progress. 108 See Özdemir (1995a, b), Türkiye…p. 472. Özdemir adds that during this time [1980–83] under military rule 178,565 people were taken into custody, 64,505 were arrested, 41,727 were charged with prison terms, 326 were sentenced to death and 25 were executed. Some were murdered under security forces torture practices. 109 Ibid. p. 447. During this time [1980–83] the NSC consisted of four military forces commanders and Chief General Staff, Evren. 110 Ibid. p. 449. 111 See Hale (1994), p. 256. 112 Ibid. 113 See Özbudun (1989), p. 207. 114 Ibid. 115 See Özbudun (1997), p. 235. Using a “No” vote was a courageous decision according to Erdo˘ gan. Erdo˘gan also observes that the envelope of the electrode vote was seen through and the referendum was running under junta jurisdictions. See Erdo˘gan (2003), p. 130. 116 See Özdemir (1995a, b), Türkiye… p. 457. If the constitution was not approved by the nation, there would be no provision for a solution to this unexpected dilemma but President General Evren

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a yes vote for the president of the country, the only candidate junta leader General Full Staff Evren for a term of seven-years. With the new constitution’s provision, the NSC transformed itself into the presidential council for a six-year term beginning at the gathering of the new Parliament.117 Another provision made was that during this sixyear term the president would have veto power over the constitutional amendments. Parliament would be able to defeat the veto only if they had three-fourths majority of MPs.118 It was evident that the military was returning to its garrison, but for at least six-years it would be watching the political system in order to prevent further crisis in the country. After May 1983, political parties began to form under the approval of the Presidential Council.119 The military junta performed background checks on all individual party candidates for the election of November 1983. Only three parties in total were approved.120 In addition, Provisional article 4 of the Constitution ruled that the chairmen, general secretaries, and other senior office holders in the former political parties could not join or have any relations with political parties or run for election for the next ten years. However, in May 1987 Ozal’s government offered various constitutional amendments to a national referendum, including withdrawal of provisional article 4.121 In September, the nation barely accepted the amendments with “yes” votes of 50.1%, and “no” votes of 49.9%.122 In November 1983 an election was carried out under the control of military rulers. The 1983 election provided a victory for Turgut Ozal’s party, the Motherland Party [Anavatan Partisi] which won 211 seats out of a total of 400 in parliament.123 Before the coup, Ozal was responsible for economic affairs as a bureaucrat under the supervision of Prime Minister Suleyman Demirel. In the aftermath of the December election, the civilian government was established by Ozal.124 The Constitution also abolished the Senate; the military believed this locked the parliamentary system. Turkey now had a unicameral parliament, the Grand National Assembly. It was a milestone, the official end to a and Prime Minister Admiral Ulusu, retired, privately gave this impression to the nation that if they say “no” the military will keep its power indefinitely. President Evren stated that if the constitution was not accepted this meant that the people were satisfied with us, the military, and Ulusu was saying that in this case (if the nation said no), there is no problem, we will stay in power. In my view, these kinds of speeches pressured the nation to vote “yes’ in the referendum. See Hale (1994), pp. 257–73. 117 See Özbudun (1989), p. 208. 118 Ibid. 119 See Özdemir (1995a, b), Türkiye… p. 460. 120 Ibid. p. 469. 121 See Özbudun (1997), p. 238. 122 Ibid. 123 See Özdemir (1995a, b), Türkiye… p. 469. 124 Ibid. p. 470. This election clearly demonstrated to the military that because of violence the nation, in turn, approved military intervention, but the people never gave a clear majority to the military driven party in parliament. One of the three parties belonged to retired General Turgut Sunalp’s, the Nationalist Democratic Party [Milliyetci Demokrasi Partisi] which took a place in the 1983 election. His party was clearly supported by the military, and he won 71 members in parliament.

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military regime. The National Security Council was dissolved and council members resigned from their military duties to become the members of the new presidential council.125 With this, the junta leaders took their places in the legal system. The new military forces commander became a member of the new National Security Council. After each military intervention, the Turkish military was able to leave its mark on domestic politics. Some were temporary, like the Presidential Council, but some were permanent, like the establishment of the National Security Council. From 1980 to 1983 the NSC enacted 535 legislations, and 91 decrees. These legislative pieces covered “all fundamental aspects of social and political life in Turkey.”126 Yet another Constitution and legal system of Turkey was established and shaped by the military. According to Özbudun, Turkey again missed the opportunity to make a constitution based on a broad consensus of the nation and instead focused on elite interests.127 The main characteristic of the new Constitution was that the military’s position in the political system was entrenched as a powerful guardian via the presidency and the National Security Council.128 The Constitution of 1982 restricted and limited political activities of individuals, trade unions, associations, and cooperatives thus effectively eliminating political pluralism from Turkish society. In addition, the provisional article 15 of the Constitution blocked constitutional court review for the constitutionality of the laws enacted during the military or the NSC’s term [1980–83]. In other words, it provided full legal immunity for the former members of the junta. Occasionally, Parliament has sought to abolish this immunity; however they were not able to generate the majority support needed to accomplish this. In conclusion, the Turkish legal system still operates under the Constitution of 1982, with the military steering the ship. This Constitution consolidated the tradition of military construction of constitutional documents within a Turkish democracy. The Turkish Parliament, on many occasions, amended the constitutional articles of 1982 instead of establishing a civil one. Unlike the western experience, Turkish democracy was conceived within a military framework and today both co-exist along an essentially unstable path. This is unfortunate for a nation that believes in the rule of law and democratic principles. There is hope within the nation, however, that their engagement into the EU will substantially diminish the power of the military. Currently, for Turkey democracy’s main and largest problem is that the Constitution was established and derived by the military instead of by the nation’s democratic representatives, or Parliament. Thus, Turkey urgently needs a new, civilly prepared constitution based on a broad consensus from its own people’s interests and values and not only from those with upper-class status. In the following subsections I will 125 See

Özbudun (1989), p. 210. Provisional Article 2 of the Constitution states that the five other members of the junta were to constitute a presidential council to remain in existence for six years after the reconvening of parliament. In November 1989, the presidential council terminated itself from the legal arena. In addition, Provisional Article 1of the Constitution provided the junta leader, Mr. Evren with the Presidency for the following seven years, from the date of the acceptance of the new constitution in the referendum. 126 See Özbudun (1995), p. 307. 127 Ibid. p. 306. See also Özbudun (1997), p. 235. 128 Ibid. p. 236.

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explore in-depth the problems caused by the Constitution of 1982 in terms of military and civil relations.

4.2 Separation of Powers and Check-Balance Modern states are based on the principle of separation of powers, which is believed to eliminate arbitrary government actions and the potential for tyranny. Thus, state power is divided between three branches of government: parliament (legislative power), government (executive power), and the courts (judicial power). In this subsection, I will touch on another fundamental issue in Turkish democracy established by the constitution of 1982. Because of this constitutional framework, Turkish governments are inherently weak, forced to share its power with the president and the NSC. All citizens need to be loyal to the nationalism of Atatürk in order to be a good citizen in the eyes of the state. Consequently, there is no protection for the citizen, if their thoughts or actions are against the modernism of Atatürk and/or its inherent secularism. But who defines the borders of Atatürkian nationalism and secularism? The constitution provides no definition. Turkish courts that support and defend the status quo, fail in many ways to protect civil rights and liberties. Is the military of Turkey, which gives life to these definitions, guilty of constitutional offences when involving in intervention? Or is it Turkish academia, ranked in third class social order, qualified to defend civil rights and liberties? In my point of view, from the sphere of Turkish politics, these definitions and borders were drawn by state elites without due respect to the rule of law. If the Atatürkian nationalist view is in conflict with human rights, what is a citizen to do? According to Turkish legal and political practices, nationalistic principles are the norm. Atatürk was a great soldier and statesman, who saved and established the Republic. Being human, he made both beneficial accomplishments and some errors along the way. If a person were to criticize him it does not mean they are an enemy of him or the state. Turkish elites should stop portraying Atatürk as God of the country. This demeans his legacy. Moreover, I think constitutions are not an ideal place to dictate nationalistic ideology. There is no parliamentary supremacy in the Turkish constitutional system, as found in common law systems. The Constitution does not divide government branches in a definitive manner, unlike the American model. Until now, the weak separation of powers in Turkey seems to have been as functional as any classical parliamentary system. The republic’s elites are quick to justify this divergence from the classical model, insisting that Turkey’s uniqueness requires practices adopted from the West be modified to reflect Turkish ideas and culture. These elites further argue that the Turkish nation cannot fully “westernize”. Unlike the Western nations,

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Turkey needs a strong fatherly leadership to guide/dictate the correct ways to behave and live, rather than a “western” citizen’s democracy.129 Interestingly, after every military intervention, the military has blamed the constitutions and political parties for being the responsible party.130 Ironically, it was the military juntas which prepared the constitutions, made their amendments, enforced them and then accused the politicians of locking down the constitutional system. Thus, it is difficult to comprehend the junta’s logics after each coup. The real aim of the juntas appears to be to maintain power and to re-build the system, once again, for the benefit of state elites.131 With the 1982 Constitution the military provided extended powers to the president of the country, under the belief that future presidents would come from a group of retired senior military generals or military affiliates.132 This represents the breaking point in the separation of powers within a Turkish democracy. After the lack of legitimacy in constitution making, the second biggest problem of this unstable democracy is that the president has extended power. Turkey claims to follow the classical parliamentary system, yet in a classical parliamentary system, the monarch or the president has a largely symbolic place in the system.133 The Constitution of 1982 ruled that the president of the country is the head of the executive branch. Özdemir points out that, according to the Constitution, the president does not have political or legal responsibility, except in the case where treason is involved, therefore why should he be the

129 See for parallel critics about the Turkish democracy, see Karatepe (1997a, b), Darbeler…, p. 70, and p.84. See also Özdemir (1994), p. 62 and p.118. 130 See Tachau and Heper (1983). 131 See Özbudun (1995), p. 306. 132 See generally Özdemir (1994). In his book, Özdemir provides sufficient and strong evidence how the military involved presidential elections since the establishment of the republic. 133 See Teziç (2004), p. 401. Professor Tezic was one of the constitutional law professor in Istanbul University, with following the French school. In Turkey, legal scholars mainly follow the German or French legal schools. Turkish administrative and constitutional systems mainly are affected by the French legal system. Civil law is affected German or Switzerland legal movements. During my faculty years in Istanbul University in 1992, Mr. Teziç was my constitutional law professor. He was lecturing to students like a Rome Emperor from the podium. In Turkish politics literature, Mr. Teziç insists his lectures were advising to us social democratic ideology. Currently, he is the chairman of the Higher Education Board (in 2005). When the current government wishes to reform the universities of Turkey, Mr. Tezic makes public statements to media and warns the government not to pass the red lines of the system. In Turkey, trying to change or reform the academic world means destroying the state. In Turkish academia, after getting associate professor title, almost none of the professors continue academic studies. Universities belong to the state and from an administrative perspective, professors are hired by the state. In my view, Turkish society’s main problem is that state elites and the nation share the different values or ideology. The nation believes in republicanism with the traditional Turkish values, but the elites believe if the nation has this kind of democracy, they will lose their powers. Thus they offer the country unstable democracy. And their classic game is that when they began to lose power they call the military and send message to the Western world right, left, or Islamic fundamentalism is increasing in Turkey thus they have to stop it.

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head of the executive branch?134 In the following section, I explore the dilemmas within the executive branch of government.

4.3 The Post-Modern Military Coup D’etat On February 28, 1997, the Turkish military directly interfered in Turkish politics via the NSC. This time however, it was not a direct official intervention. Turkish literature refers to it as a silent coup or post-modern semi-official military coup because this time, the Army did not use guns. During Ozal’s presidency many Turkish and foreign observers believed Turkey would not have another military coup.135 Via the NSC the military made the coalition government sign the NSC document, which included 18 military commands though this did not yet force government to resign from office. In June 1997, however, the guardian of the country, the military, forced the elected government to resign. Prior to February 28, 1997, the military established a special intelligence service, the Western Study Group (Bati Calisma Grubu).136 It put all of Turkey under surveillance; people were scrutinized by this agency, especially civil officers, who were 134 See

Özdemir (1995a, b), Üçüncü…, pp. 238–9. Özdemir argues that it is possible to divide the executive branch between the President and the Prime Minister [cabinet]; however the president should be elected by the nation, not by the parliament like it happens in France. He adds that if Turkey would like to continue with the parliamentary system, she must limit the authority of the President and increase the Prime Minister Powers. Turkey may continue with the presidential system, but with this constitution, Turkish democracy can not cure its problems. There is hot debate going on in Turkey, on the adoption of the presidential system. The real problem in Turkish democracy is need for the elimination of the power of the military. Of course, the Turkish nation’s culture is familiar to a strong executive branch thus it may preferable the presidential system. It is interesting the state elites [military, bureaucracy, and academia] that are against the presidential system. However, political parties and a few legal scholars who are the out of the state ideology line support the presidential system. They believe in that way it is possible to eliminate the military’s power and establish strong governments. Another interesting thing is that until 2003 the state elites was supporting the EU membership, but when they realized they would lose power, they tried to destabilize the country to illustrate that it was not ready for the EU. Most people of Turkey support the EU membership (in 2005). See more about the debate of parliamentary and presidential system in Turkey; see Kuzu (1997). Kuzu argues parliamentary systems in general are evolving towards quasi-presidential or presidential systems. The Parliamentary system completed its life span, because this system is based on coordination of the powers of the branches of the government. Legislative power may strike down executive power in order to control and limit its power. However these two procedures were closed in parliamentary systems because of the political parties. He claims that parliamentary systems tend to have coalition governments, which are ineffective. France, for example, had 104 governments within 70 years before the 1958 Constitution, in which France chose semi-presidential systems. Italy had 12 governments from 1970 to 1980. In Turkey, coalition governments are one of the reasons for an unstable democracy. 135 See Cornell (2004), unfortunately, the power balance between the civil and military governments passed towards the military side after Ozal’s death. 136 See Kocabas (1997), pp. 456–68. During February 28, the second chief of the general staff, Çevik Bir sent an order to military bases, which stated that all religious groups, institutions and individuals must be found and recorded and also all mosques preachers should be followed to see

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classified into groups,137 such as Islamic, non-Islamic, communist, nationalist, etc. Those who did not drink alcohol or prayed daily lost their government jobs. Anyone that subscribed to religious or observant newspapers or magazines138 was subject to abuse. Phones were tapped, and all communication was under surveillance.139 Also many individuals were blacklisted by the military in the name of protecting the Republic.140 The entire nation became extremely fearful of being seen with religious or observant persons.141 A struggle was taking place under the mask of secularism; interfering with people’s religion, beliefs and life style. In their fight to defend the nation from control by Islam, actions were taken that were against the principles of democracy, rule of law, and human rights. These kinds of interferences are common under military regimes, not pluralistic democracies. This type of interference needs to be recognized as anachronistic and of Jacobean primitiveness. After the government’s fall, the military seemed to take a more prominent role in day-to-day politics. Behind the scenes, the military supported the constitutional court case that eventually closed down Erbakan’s party [Welfare Party] in early 1999.142 The Welfare Party members of parliament established a new party, the Virtue Party (Fazilet Partisi, FP).143 In the 1999 election, the Virtue Party won 15% of the votes, a fall from 21.5% in the 1995 election.144 The Virtue Party was closed down in 2001 by the constitutional court, which led to the break-up of the party into two rival factions, a more “traditionalist party” (the Happiness Party, Saadet Partisi) and a “modernist party” (the Justice and Development Party, Adalet ve Kalkinma Partisi) that identifies itself as “a Muslim-democratic party similar to Christian Democratic parties of Western Europe.”145 if there is any preaching against secularism. In addition, wards, who wears religious traditional clothes should be determined and brought to the attention of the office of the chief of the general staff. See Bayramo˘glu (2002), p. 36. 137 See Ali Bayramo˘ glu, ibid. 138 Ibid. at p. 2. See more Kocaba¸s (1998). 139 See Mazlumder (2005). 140 Ibid. 141 Ibid. 142 See Mehran Kamrava (1998), p. 275. 143 See Cornell (2004). 144 Ibid. 145 Ibid. The constitutional court reasoned that the Virtue party was the continuation of the Welfare Party thus it has to close down in the name of the protection of secularism. One of the problems with secularism in Turkey is that the constitution of Turkey does not define or explain what secularism is. This provides the courts arbitrary interpretation of secularism. Since the establishment of the Republic, the Turkish Judiciary System defended and backed up successive military interventions and the status quos. The military thus never touched the judiciary. Özdemir proposes that the judiciary and military interventions could be one of the best PhD dissertations, if some one would study it. The last tragic comedy from the constitutional court of Turkey came out during March of 2005. The issue is that one of the eminent constitutional law professors, Mustafa Erdo˘gan, was interviewed [interview’s headline, For Turkey: the Best is Presidential System] by the daily Star Newspaper on December 15, 2004. Erdo˘gan claimed that “when the left is in the government office, the constitutional court does not produce any verdict against them. The court blocks the right centre

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During the February 28, 1997 post-modern coup, many individuals were taken into custody and arrested by security forces for participating in religious meetings and rituals.146 Women were warned about the disciplinary penalties for wearing headscarves, for religious identifications, and for worship in official or private institutions. After investigations were carried out, these women could be prosecuted.147 The Military organized a public news meeting and identified religious media as an enemy of the state.148 In 2002, after two big economic crises under the coalition government of the Democratic Left Party and the Nationalist Action Party, the Turkish nation went into an early election forced by other political parties, media, and the nation.149 All of Turkey again showed up at the ballot boxes proving that the post-modern military coup was definitely not approved by the nation. 1983 electoral law required parties to win at least 10% of the national vote to qualify for any parliamentary seats. The reason for this law was to establish major governments in order to prevent fringe parties from reducing Parliament to a state of chaos, which had occurred before the 1980 military coup.150 Because of the 10% quota, only two parties won seats in Parliament, the modernist wing of the Virtue Party, or the Justice and Development Party (the JDP) won 363 seats out of 550 and the Republican Public Party (the RPP) won the remaining 179.151 Interestingly, Erbakan’s Happiness Party (the traditionalist wing of the Virtue Party) received only 2% of the vote from the voters.152 Since the early 1970s, Erbakan’s anti- Semitic, careless political actions and politicization of Islamic values have harmed truly devout Muslims of Turkey. According to the Quran’s order, a Muslim cannot be a part of any racist movement, including governments with its decisions. And when we scrutinize the quality of court judges most of them do not have enough intellectual capacity or experience. Thus they cannot understand the important events for Turkey and they interpret legal norms ideologically at ultra level. For example, the headscarf was not banned in Turkey with the legal statue, but because of the constitutional court’s hard interpretation of the secularist understanding.” Because of these sentences the Ankara Public Prosecutor’s office opened the case against Erdo˘gan stating that he passed the line of the criticism and assaulted verbally the personal dignity of the court’s judges. This offence is punishable up to four years. See “Anayasa Mahkemesi Üyeleri, Prof. Dr. Mustafa Erdo˘gan’a Hakaret Davasi Açtı [The Members of the Constitutional Court opened Verbal Assault Case against Professor Mustafa Erdo˘gan], Milli Gazete Daily Newspaper (March 1, 2005), online, http://www.milligazete.com. tr/0132005/haberler.htm (accessed March 1 2005). 146 See Mazlumder (2005). 147 Ibid. 148 See Kocaba¸s (1998), pp. 229–35. 149 See generally Çaha (2003), pp. 95–116. The author observes that the real reason behind the February 28 military coup was to eliminate Anatolian business grown capital against the Istanbul business world. The same argument was also supported by Kocaba¸s. See more Michael Rubin (2005), pp. 13–23. 150 See Ergun Özbudun, “The Institutional Decline of Parties in Turkey” in Larry Diamond & Richard Gunther, eds., Political Parties and Democracy (Baltimore, John Hopkins University, 2001) 240–1. 151 See Çaha (2003), p. 95. 152 Ibid. p. 106.

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anti-Semitism. Certainly, it became evident that the Turkish nation never approved of the military interventions or the politicization of Islam. Using a Canadian frame of reference, most Turkish people stand between the Liberal Party and the Conservative Party. Ozal was a liberal-conservative who diminished the military power, however temporarily, and most of the nation loved and applauded him. The current Turkish Prime Minister, Erdo˘gan, is like Ozal, a liberal-conservative politician trying to take the nation into the EU. However, he still struggles with state elites, including the military, academia, and other intellectuals. Luckily, the current Chief of the General Full Staff, Hilmi Ozkok, seems to be a liberal Western style soldier, who knows the borders of the military and shows respect to civilian authority. Unfortunately, Turkish democracy depends on personal character rather than institutions. So it all depends on who is in office, which can and does change.

4.4 Conclusion With successive military interventions, Turkish democracy became increasingly unstable, lacking in the development of civil society and democratic institutions. Preparing a constitution under the authority of military became a tradition in the Turkish legal system. The current Constitution of Turkey facilitated a powerful President and the National Security Council in order to let the military oversee and supervise the system. Many appointed powers are given to the President rather than the Prime Minister of Turkey. The President is elected by Parliament and the Prime Minister is elected by the nation. An un-elected President is constitutionally the head of the executive branch. In other words, the current Constitution diminishes the classical parliamentary system in Turkish politics. Since the 1982 Constitution was crafted, big problems and arguments have occurred between the President and Prime Minister. Therefore, this ironic situation needs to be fixed by the Parliament of Turkey, reducing the power of the President. With military intervention, the Turkish military amplified its own power and privileges within the legal system and virtual politics of Turkey. Establishing its own companies, military judiciary systems, uncontrolled budgets and spending, as well as its involvement in national intelligence organization definitely gave Turkey “an untouchable military power.” The military of Turkey is still the most powerful institution in the country. In other words, Turkish democracy demonstrates that those who are appointed are more powerful than those who are elected. Evidently, there are some legal amendments needed in order to comply with EU standards in terms of civil and military relations in Turkey. However, change has still not established civilian control over the military. In 2005, at the foot of the EU door, Turkish democracy runs under military rule, and the military is above the Turkish system, like Damocles sword.

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5 Alternative Conclusions from 2005 to 2018: Personal Experience Here I will write down my first hand experience, as a scholar of constitutional law, what I believe occurred in Turkey in a political sense from from 2005 to 2018. The Justice and Development Party took in hand charge of the entire system as of 2002; however, full control of the entire process took some time. To that end current President Erdo˘gan (formerly the Prime Minister prior to his election in 2014) had been co-operated mainly with the Gülen group. Known as the cemaat/hizmet until 2014, until Erdo˘gan officially named them the Parallel State Organization (PDY), as of 2016 they became known as Fethullah’s Terrorist Group (FETÖ), and joined with other known Islamic groups in order to eliminate the other ones from the government and state. This partnership seemingly worked very well until 2010, to be disturbed by new constitutional amendments. It became very evident, especially after February 7th, 2012, that Gülen has serious qualms about Erdo˘gan. Gülen’s men tried to detain the chief of the Turkish Secret Service (MIT) Hakan Fidan, then take down Prime Minister Erdo˘gan. The failure to complete this task led to the verbal debate (rife with insults!) as was covered and aided by media outlets, particularly news stations.153 On December 17 and 25th, 2013 Gülen followers tried to take down Erdo˘gan’s government via using debated issues concerning bribery of state officials, in this case four ministers and son Bilal Erdo˘gan. Again failure resulted, which led to a different approach in trying to aggravate one another. As such, political war officially began between Erdo˘gan and Gülen. The cases, resulting raids and detainments led to the closure of institutions that were linked to Gülen began and continued until July 15th, 2016. Gülen’s military officers attempted a military coup d’edat; President Erdo˘gan again thwarted their efforts as a result of national backing and overall general support by channels of private information. The new constitutional referendum that took a place on April 16th, 2017 aimed to change the government system of Turkey. The new system, named “Cumhurba¸skanlı˘gı Sistemi” (People’s Presidential System), was accepted with a vote distribution of fifty-two percent to forty-eight percent. The new system is based on the single entity o power that is the president’s will, and has no realistic means of curbing single person-like use of political influence. It has also allowed for many loopholes of escape for any wrongdoing individuals in politics, most notable the president himself. After July 15th, 2016, many government officials, including teachers of any educational level and military personnel, were fired from their jobs under the name of fighting against the internal spread of FETÖ (Fethullah’s Terrorist Group)’s thoughts and teachings. Currently, the rough estimate stands at about one-hundred-fiftythousand individuals. I classify these individuals as 1) Those who opposed and fight against FETÖ 2) Were members of FETÖ 3) Those who have no connection with

153 Ozturk

(2015)

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FETÖ, but have a strong voice as an oppositionist, especially leftists and claimants of pro-Kurdish independence as a fundamental right. In the Western world, members of FETÖ currently make use of the third aforementioned group of people to attempt to prove their innocence. I have to note that, FETÖ’s impoverished followers that lack education (known as Anatolian Turks in the literature) that know not of the truth of the organization were intentionally fired from their jobs in order to confuse the responsible leaders of FETÖ itself. Thus, the hidden upper circle (known as crypto-FETÖ in writing) kept their positions in the government by doing away with those that oppose FETÖ, in spite of abundant and clear evidence displaying that they indeed do oppose, not work for, the group. On closing remarks, FETÖ is still very strong in Turkey and plays with the system of political influence. Thus, some strongly claim that President Erdo˘gan has struck a deal with the highest order (hard core) of FETÖ who thus shield him from harm, and are protected by him in turn. Time will tell if this holds true or not, as until very recently members of members of FETÖ with prominence as politicians were completely unscathed. However, a relatively small number did resign to avoid further inquiry-a sure sign of a highly exclusive elitist system of governance. Currently, politics in Turkey stand on a very unstable bedrock of Erdo˘gan versus Gülen, but other weeds looking to sprout on this rock include former PMs Ahmet Davuto˘glu and Binali Yıldırım, former PM and former president Abdullah Gül, and groups that follow the philosophies of Çakmak, Atatürk, and ˙Inönü. Whichever one takes root surely spells troubled times for the shifting structure of Turkish political and social life…The last sentence is that no one is above the President Erdo˘gan’s executive orders either official or unofficial ones.

References Ahmad Feroz (1977) The Turkish experiment in democracy: 1950–1975. Westview, Colorado Ahmad F (1981) Military intervention and the crisis in Turkey. MERIP Rep 93:5–25 Ahmad Feroz (1993) The making of modern Turkey. Routledge, London Altu˘g Yılmaz (2003) Parlamento Hukuku [Law of Parliament]. Ça˘glayan, Istanbul Bayramo˘glu A (2002) Asker ve Siyaset” [The military and politics]. In: 160/161 Birikim: monthly socialist culture magazine, August–September Issue, pp 28–48 Berkes Niyazi (1964) The development of secularism in Turkey. McGill University, Montreal Çaha Ö (2003) turkish election of november 2002 and the rise of “Moderate” political Islam. Turk J Int Rela 2(1):95–116 Cornell SE (2004) The military in Turkish politics: a national and regional stabilizer. http://www. cornellcaspian.com/pub2/21_0111_Turkishmilitary.htm. Accessed 15 Dec 2004 Earle EM (1925) The new constitution of Turkey. Pol Sc Q 40:73–100 Editorial Comment (1908) The new constitution in Turkey and international law. Am J I L 2:842–45 Erdo˘gan M (2003) 4th ed, Türkiye’de Anayasalar ve Siyaset [constitutions and politics in Turkey]. Liberte, Ankara Finkel A (2000) Who guards the Turkish press? a perspective on press corruption in Turkey. J Int Aff 54:147–166 General Secretariat of the National Security Council (1982) 12 Sept in Turkey: before and after. Ongun Karde¸sler Printing, Ankara

Again: From 1867 to Today, Making a Constitution Under …

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Hale William (1994) The Turkish military and politics. Routledge, London Heper M (2000) The Ottoman legacy and Turkish politics. J Int Aff 54:63–68 Jacoby Tim (2004) Social power and the Turkish state. Frank Cass, London Johnson, MO (1982) the role of the military in turkish politics, Jan–Feb. Air Univ R 49–63. http:// www.airpower.maxwell.af.mil.airchronicles/aureview/1982/janfeb/johnson.html. Accessed 11 Dec 2004 Kamrava Mehran (1998) Pseudo-democratic politics and populist possibilities: the rise and demise of Turkey’s Refah Party, 25 Br. J Mid E Stu 2:275–301 Karabelias G (1998) Civil-military relations: a comparative analysis of the role the military in the political transformation of post-war Turkey and Greece: 1980–1995, p 22. http://www.nato.int/ acad/fellow/96-98/karabeli.pdf. Accessed 20 Nov 2004 Karatepe, S¸ (1997) Tek Parti Dönemi [The single-party era]. ˙Iz, Istanbul Karatepe S¸ (1997) Darbeler-Anayasalar ve Modernlesme [Military coups-constitutions and modernization], 2nd ed. ˙Iz, Istanbul Karatepe Sükrü ¸ (2000) ˙Ideolojik Devlet Krizi Karatepe [Ideological state crisis]. Birey, Istanbul Karpat Kemal H (2004) Studies on Turkish politics and society: selected articles and essays. Brill, Boston Kocabas Süleyman (1997) Refah-Yol Hükümeti Sonunun Perde Arkası: Türkiye’nin Sendromları [The background of the Refah-Yol government’s collapse: syndromes of Turkey; 1996–1997]. Vatan, Kayseri Kocabas Süleyman (1998) Postmodern Darbe Süreci: 28 Subat’a ¸ Doping Subat-Mart ¸ 1998 Sendromları [The Process of Post-Modern Military Coup D’etat: Supporting February 28, Syndroms of February–March 1998]. Vatan, Kayseri Kuzu Burhan (1992) Türk Anayasa Metinleri ve ˙Ilgili Mevzuat [Turkish constitutions and related statues]. Filiz, Istanbul Kuzu Burhan (1997) Türkiye ˙Için Ba¸skanlik Sistemi [The presidential system for Turkey]. Fakülteler, Istanbul Mazlumder (2005) Human Rights Violations Concerning February 28 Period. http://www.mazlum der.org/english/text.html?sy=106&cst=report. Accessed 28 Feb 2005 Özbudun E (1989) Turkey: crises, interruptions, and reequilibrations. In: Diamond L, Linz JJ, Lipset SM (eds) Democracy in developing countries, vol 3. Asia, Lynne Rienner, Boulder and London, pp 187–229 Özbudun E (1995) Paradoxes of Turkish democratic development: the struggle between the militarybureaucratic “Founders” of democracy and new democratic forces. In: Chehabi HE, Stepan A (eds) Politics, society, and democracy, Colorado, Westview, pp 297–309 Özbudun E (1996) Turkey: how far from consolidation? J Dem 3(7):123–138 Özbudun E (1997) Constitution making and democratic consolidation. In: Heper M, Kazancigil A, Rockman BA (eds) Institutions and democratic statecraft westview, Colorado, pp 227–243 Özbudun E (2001) The institutional decline of parties in Turkey. In: Diamond L, Gunther R (eds) Political parties and democracy, John Hopkins University Baltimore Özdemir H (1994) Ordunun Ola˘gandı¸sı Rolü [The army’s exceptional role], ˙Iz, Istanbul Özdemir H (1994) Üçüncü Türkiye [The third Turkey]. ˙Iz, Istanbul Özdemir H (1995) Tarih ve Politika [The history and the politics]. ˙Iz, Istanbul Özdemir H (1995) Türkiye Cumhuriyeti [The history and the politics]. ˙Iz, Istanbul Ozturk N (2015) Media Wars, Islam and the Public Sphere: Fethullah Gulen, the Gulen Movement and Prime Minister of Turkey Recep Tayyip Erdogan, MA Research Paper (Unpublished thesis paper). Department of Anthropology, University of Toronto, 2015 Rubin M (2005) Green money, islamist politics in Turkey. Mid. E. Q 12(1):13–23. http://www. mefor.org/article/684. Accessed 25 March 2005 Tachau F, Heper M (1983) The state, politics, and the military in Turkey. Com Pol 16:17–33 Tezic Erdo˘gan (2004) Anayasa Hukuku [constitutional law], 9th edn. Beta, Istanbul

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Weiker Walter F (1981) The modernization of Turkey: from Atatürk to present day. Holmes & Meier, New York Yalpat A (1984) Turkey’s economy under the generals. MERIP Rep 122:16–24

Constitution-Making, Political Transition and Reconcilation in Tunisia and Egypt: A Comparative Perspective Manar Mahmoud

Abstract The political changes that have taken place in recent years in several Arab countries have necessitated changes in the political structure of these countries, mainly because of the political tensions between the different groups in these societies. In such a reality, the constitution-making process can serve as a political tool for redefining the political framework and for ending conflicts and achieving reconciliation between conflicted communities. This article examines how the constitutionmaking process can become a reconciliatory constitution-making process in two cases: Tunisia and Egypt. These two cases differ in terms of the success of the constitution-making process in solving political disputes. In Tunisia, the constitutionmaking process contributed to a great extent to the reduction of disputes and conflicts and the achieving reconciliation. However, the constitution-making process in the Egyptian case did not succeed in this matter. It even caused a battle between the different groups regarding the establishment of the new constitution.

1 Introduction This article deals with the process of constitution-making in conflicted societies and how such a process may contribute to solving conflicts and achieving reconciliation between different communities. The article will examine this issue regarding constitution-making processes in Tunisia and Egypt that were conducted as a result of the political uprising in these two states in 2011 and after the collapse of the political regimes in these two states. This matter is of particular because the world that is continually changing historically, socially, economically, and politically, has created a situation characterized by deeply divided societies. Various countries are facing inner conflicts between their communities and need coping with many challenges. This situation is even aggravated in cases where these communities are conducting M. Mahmoud (B) School of Political Science, Government and International Affairs, Tel-Aviv University, Tel-Aviv, Israel e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_22

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struggles and claim constitutional recognition as “unique” communities. It may lead to the problematization of the constitutional identity of the society since these claims present the identity of the society as something problematic. There are several ways to handle this situation: to promote a kind of status quo, with or without constitutional changes, or promote different types of recognition by changing the constitutional identity. In this context, the constitution-making process may be one of the political strategies needed to cope with a conflicted reality.1 It is particularly true because, during the last decades, we have witnessed a growing international interest in constitutional design, especially in societies where different communities are in conflicts that generally result from ethnic, cultural, and national differences. Countries in different regions of the world, in Eastern Europe, in Latin America, in Africa, and recently also in the Middle East, are going through a process of constitution-making or constitutional amendments. In general, the constitution plays an important regulatory role aiming to regulate decision-making processes through a series of government agencies, distribution of power, determination of laws allowing government authorities to work, and the definition of their interaction. Besides, the constitution plays a vital role in shaping the identity of different communities and in defining their rights and duties. The importance of this role is growing, and it gets an additional signification in conflicted societies, since in such societies, because of the nature of the conflict or the lack of co-existence, constitution-making can be used as a tool to strengthen the political identity, which is crucial for the very existence of the regime.2 It should be outlined that dealing with the process of constitution-making is not disconnected from the constitution itself, from its nature and character. It is worth stressing the relation between “process” and “constitution” as a fundamental and inherent relation. The process itself has a significant impact on both the content and the essence of the constitution. Therefore, it is crucial to deal with the different aspects of this process. The features that characterize it, how it is conducted, the conditions needed for it to succeed, and who participate in this process. In conflicted societies, the constitutional process has a more important significance because of its implications on various communities in society.3 Within this context, an approach is developing stressing the importance of establishing a constitution in order to achieve reconciliation among conflicted groups. This fact raises many questions regarding the extent to how the process of constitutionmaking allows reconciliation between these groups: How may this process be reconciliatory, and what prevents it from playing such a role? What makes the debate preceding the establishment of the constitution based on principles and values of reconciliation, tolerance, and mutual recognition? How does it affect the content of the constitution, the recognition of cultural diversity, and the rights of different groups in society? These questions are essential, because constitution makers usually try, through the creation of a constitutional document, to build a national identity. 1 Magnet

(2004), 2–3; Tully and Gagnon (2001), 10. (2008). 3 Kymlicka (2003), 147–169. 2 Choudhry

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Therefore, the success of the constitutional project of such societies depends on the ability of policymakers to create a common political identity, which can bridge the gap between the identities of the various groups.4 Dealing with these issues leads us to think about constitution-making processes held in several Arab states recently. Different Arab countries, such as Tunisia, Egypt, Syria, Libya and, Yemen, witnessed a massive popular mobilization that has brought about dramatic changes in the political structure of these societies. Some of these states have deteriorated into a problematic situation characterized by a struggle between groups regarding several issues. Notably the management of the transitional period, the identity of the new regime, the rights of different groups, and the establishment of a new constitution. The disagreements on these issues have led to violence, and even civil war. However, other states have tried to overcome these disagreements, avoided violence, and maintained the differences between various political forces within the frame of the political process. In such a reality, the constitutionmaking process served as a political tool that aimed on one the hand to build a new regime, a shared identity, and a constitution that is acceptable to all groups and on the other hand, aimed to achieve reconciliation between the conflicted groups. In this context, a research examination of the constitution-making process is especially important when it examined alongside the reconciliation process. The process of constitution-making in conflicted societies can significantly contribute to conflict’s reduction, especially when this process goes hand in hand with other social and political processes, such as reconciliation. However, it should be noted that the theoretical literature usually deals with constitution-making and reconciliation separately, without thoroughly exploring the relationship between them. While in recent years researchers have been exploring the contribution of constitution-making processes in conflicted societies to reducing conflicts and achieving reconciliation, the literature focuses on the positive influence of constitutional process, without genuinely exploring the nature of the relationship between these two processes or defining the conditions which would make the constitution-making process a process of reconciliation as well. Therefore, in previous research, I developed a theoretical model that aimed at overcoming these limitations by presenting a new theoretical model—“Reconciliatory Constitution-Making Process”. It is important to emphasize that this is an analytic model meant to explore the nature of the relationship between the process of constitution-making and reconciliation. Moreover, to explain the circumstances in which the process of establishing a constitution can become a process of reconciliation. Such a process would aim not only to establish a constitution but also to end a long term conflict and achieve reconciliation and appeasement between groups in conflicted societies.5 According to this model, a constitution-making process can be a reconciliatory constitution-making process when it entails four sets of conditions:

4 Williams

and Hanafin (1999), 2–3. (2014).

5 Mahmoud

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1. Structural conditions, including: A. Transforming the nature of the regime and moving from a hegemonic regime to an inclusive regime that includes the different communities. B. Transforming the political culture from a hegemonic culture that denies the culture and identity of the different communities to an inclusive culture that includes their culture and identity. 2. Constitutional regulation of the cultural differences between the different communities. 3. Participation of the communities in the constitutional making process. 4. Means to achieve reconciliation: such as national dialogue based on principles of mutual respect, inclusivity, deliberation, and justice; dealing with past wrongs; Truth and Reconciliation Commissions, the forgiveness of crimes and injustice committed before the starting of the constitutional process, or in the transitional period; and abandonment of perceptions of retributive justice. This article will examine this argument through a comparative historical analysis of two different case studies: Tunisia and Egypt. The article will focus on constitutionmaking processes conducted in these two states as a result of the political uprising in 2011. The analysis will base on the model—“Reconciliatory Constitution-Making Process”. These two cases are different in terms of the constitutional process’s success in bringing reconciliation for these societies. By analyzing the two cases, the article aims to improve our understanding of the conditions that may help a constitutionmaking process to become a reconciliatory one, specifically, because of the similarities and differences between these two cases. It is important to note that this article is part of more extensive research that deals in depth with the two cases and examines all sets of conditions mentioned above. This article will not deal with the four sets of conditions but will focus only on two sets of conditions: structural conditions and means to achieve reconciliation. The emphasis on these conditions stems from the fact that a change in structural aspects, such as the nature of the political regime and political culture, is an initial stage in turning the process of establishing a constitution into a reconciliatory constitution-making.6 Moreover, the article will relate to the constitution-making process in these cases during a specific period of time: Tunisia: From the starting of political uprising in 2011 until the Approval of the new constitution by the constitutional assembly in January 2014 and Egypt from the starting of political uprising in 2011 until the fall of Morsi’s government in July 2013. Before referring to analyzing the constitution-making processes in these two cases, in the next section, I will explain more extensively the significance of the “Reconciliatory Constitution-Making Process” and the characteristics of this process.

6 Mahmoud

(2014).

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2 What Is a Reconciliatory Constitution-Making Process? There is a growing recognition of how the constitution-making process is being conducted, especially in conflicted societies, has an impact on the state, the government and the process of democratization. The constitution-making process may provide a basis for negotiations and dialogue in order to resolve problems and conflicts. It may contribute to educate citizens to democratic values, lead to a process of reconciliation through social dialogue, and create a consensus regarding a new vision for the country’s future.7 Until recently, research’s emphasis was on the creation of constitutions in a stable political reality, and less thought was devoted to emerging constitutions in a conflicted reality or within a period of political change. In this regard, realistic constitutional theory tended to attribute to the constitution a procedural role in defining the regime and the laws but did not ascribe importance to the constitution-making process as an agent of change. However, nowadays, an idealistic constitutional theory tends to attribute to the process a fundamental and founder role and believes that the process of constitution-making, symbolizes the beginning of the creation of a new regime and defines the multi-dimensional role of constitutions. This perception stems from a transformative political reality that allows for consensus. According to this perception, the constitution-making process should be recognized as a process or forum for negotiations in order to prevent conflict and division.8 It should be emphasized that political theory has a strong normative argument regarding the relationships between political changes and the constitution-making process.9 This issue first appeared in the classic constitutional model described in Aristotle’s writings.10 Later, it has appeared in modern constitutional theory, especially in Hannah Arendt and Bruce Ackerman’s writings.11 Despite the differences between the two theorists, they share the assertion regarding the potential of a constitution-making process for political change.12 In recent years, various studies have focused on cases in which the process of constitution-making was part of the political changes and the attempt to resolve 7 In

recent years, various projects have begun focusing on the aspects related to the constitutionmaking process, resolution of conflicts, reconciliation and achieving peace. See, for example: The (Constitution Writing and Conflict Resolution) project, directed by (Jennifer Winder) focuses on constitutions that have been established since 1975 and refers to the conditions and processes in which they were established and to the consequences of receiving these constitutions upon conflict resolution http://www.princeton.edu/~pcwcr/index.html. The (Constitutional Transitions) Project, directed by (Sujit Choudhry) deals with receiving constitutions in times of political changes: http://constitutionaltransitions.org/. The (Constitution-making for peace programme) deals with the constitution-making process as part of the reconciliatory process: www.constitutionmakingforpea ce.org 8 Samuels (2005), 667–668. 9 For more elaborate discussion on this issue see in this volume Brauni Andreas, Authoritative Constitution-Making in the Name of Democracy?, Sect. 2. 10 Aristotle (1984). 11 Arendt (1963); Ackerman (1992). 12 Teitel (1997), 2053–2057.

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conflicts, such as South Africa, Brazil, Nicaragua, and Eritrea. These studies referred to the potential of the constitution-making process in reducing the intensity of violent crisis, and even to put an end to them.13 The argument is that the constitution-making process taking place following a period of conflict provides an opportunity to create a new future. In such cases, constitution-making could lead society to support principles of political tolerance and may provide a chance to build a common perception of a shared future. Primarily, since this process can provide a solution to problems of violence through social dialogue and civic education to democratic values.14 The focus is on the fact that constitutional design requests democratic norms and procedures, transparency, and accountability, as usually expected from any decisionmaking process. Moreover, experts in constitution-making studies, emphasizes the contribution of the constitutional process for the transformation of conflicts and for ensuring peace. The focus is on the fact that constitution-making is more a process than a defining, one-off, and final moment, and it must include a new debate. The quality of the constitution-making process as a mean for transforming conflicts depends on the possibility for all those who have different positions to express their opinions.15 The assumption is that the way the constitution is established is likely to reduce tensions among conflicted groups and to affect the legitimacy of the final document, as it may affect the content of the constitution.16 Constitutions that are formulated during periods of political change may serve as temporary measures. In such a constitutional process, constitutions are not formulated at once, but in steps. Usually, the constitutional process begins with a temporary constitution, whose function is to contribute to understanding the essence towards the formulation of a permanent one.17 In the first years following the constitution-making process, as long as the definition of the content of the constitution is not clear enough, the constitutionalmaking process is likely to affect the levels of conflict, much more than the very essence of the constitution. While citizens need time to know the essence of the constitution, the constitution-making process itself contains messages that have a direct impact on their positions.18 Therefore, the constitution-making process could provide a political equation of how different groups may continue to live together in harmony and carries implications for future generations.19 Those issues are particularly significant since the constitution-making process is related to other political processes, such as the reconciliation process. Therefore, a constitution-making process would be a “Reconciliatory Constitution-Making Process” when:

13 Winder

(2005), 503–518; Encaracion (2008), 435–459. (2005), 663–682.

14 Samuels 15 Ibid. 16 Bannon

(2007), 1824–1872. (1997), 2053–2057. 18 Winder (2005), 503–518. 19 Elster (1995), 364–96. 17 Teitel

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A. Its ultimate goal is not only a constitution-making but also a solution to ongoing conflict and achieving reconciliation among conflicted groups during this process. Besides, reconciliatory constitution-making process includes dealing with significant issues such as the type and nature of the regime. The assertion is that the constitution-making process that is solely intended to determine rules and not to resolve any disputes is not successful in bringing reconciliation among the different communities. B. The nature of a reconciliatory constitution-making process is to achieve changes in the essence of relationships between these groups, and this does not only mean a legal process or formal regulation of relations between different groups. In this respect, the constitution-making process could provide a political equation of how different groups may continue to live together in harmony and carries implications for future generations. In this context, there should be a distinction between constitution-making processes that have been successful in leading to reconciliation, and constitution-making processes based on the desire to resolve conflicts between conflicted groups, which have not modified the nature of their relationships and, at best, have achieved a temporary solution. C. According to this model, reconciliation does not only mean resolving the conflict. The emphasis is on changes in perceptions that each group holds about the other groups. D. The model does not assume that there is a consensus among the various groups regarding a new political framework before the beginning of the constitutionmaking process but refers to the reconciliatory constitution-making process itself as something that would lead to such an agreement through negotiations and ongoing discussions on contentious issues. In fact, the first agreement between the groups is about the beginning of the constitution-making process. E. Reconciliatory constitution-making process includes the various groups and their representatives, is composed of sub-committees that examine the core issues of the conflict and attempts to find appropriate equations to continue living together. This process will be based on the principles of inclusion and partnership of the various groups in the constitution-making process and the various committees that supervise this process. This issue is required for the constitution to be considered legitimate by various groups. As is already mentioned, the critical point is that in order for reconciliatory constitution-making to take place, several conditions are needed. Namely, a constitution-making process can be a reconciliatory constitution-making process when it entails four sets of conditions: 1. Structural conditions include: A. transforming the nature of the regime and moving from a hegemonic regime to an inclusive regime that includes the different communities. B. transforming the political culture from a hegemonic culture that denies the culture and identity of the different communities to an inclusive culture that includes their culture and identity.

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2. Constitutional regulation of the cultural differences between the different communities. 3. Participation of the communities in the constitutional making process. 4. Means to achieve reconciliation: such as national dialogue based on principles of mutual respect, inclusivity, deliberation and justice; dealing with past wrongs; Truth and Reconciliation Commissions, the forgiveness of crimes and injustice committed before the starting of the constitutional process or in the transitional period; and abandonment of perceptions of retributive justice. In the first and second parts, I presented the theoretical framework of this article and defined what is “Reconciliatory Constitution-Making Process” and the conditions needed for this process to take place. In the next part of the article, I will examine how the constitution-making process can also become a reconciliatory constitution-making process regarding the two cases- Tunisia and Egypt.

3 Constitution-Making Process in Tunisia and Egypt After the Political Uprising in 2011 The Arab political uprisings that took place in 2011 expressed a new massive adherence of the people, to the notion of citizenship and the collective will to underwrite a new and more inclusive type of social contract. The Arab protest can be defined as the unfolding of an accrued sense of civic involvement.20 The fight for political freedoms and against authoritarianism is nothing new to Tunisian and Egyptian societies. A rich history of organized opposition by multiple sectors, labor unions, students, and Islamists among them—was prominent in both Egyptian and Tunisian contexts.21 The homogeneity of those opposed to the regime in countries as Tunisia and Egypt enabled them to articulate a collective worldview that embraced by the population and helped enable the mass mobilization against the regime. However, despite the similar conditions that lead to popular uprisings in Arab countries such as; economic crisis, high youth unemployment, social distress, absence of meaningful political reforms, weakening of state institutions, and a capacity for social mobilization—the paths were undertaken by these revolutionary societies were different.22 In both societies, Islamists were considered the most threatening entity to the regime, rendering Islamists also the most persecuted. The Muslim Brotherhood in Egypt and the Islamist party-Ennahda- in Tunisia were well prepared. Those who came from prison and exile were supporting professional syndicates and operating as charitable organizations. However, the politics of Egyptian and Tunisian societies evolved differently after the political uprising. The Muslim Brotherhood in Egypt, 20 Challand

(2013), 169–187. M (2012) Democratic transition in Egypt and Tunisia: Lessons for “Arab Spring” states. http://www.consultancyafrica.com/index.php?option=com_content&view=article& id=1073. Accessed 7 July 2014. 22 Ishay (2013), 374–375. 21 Gordner,

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maintained a purportedly Islamist ideology of state and society, whereas Ennahda party in Tunisia, postured itself as a civic organization.23 In general, both Tunisia and Egypt become increasingly polarized between Islamists and secularists after their revolutions. Although the divide was not new and somewhat historic, it seemed to have paralyzed both countries, and it rather destabilized them. Besides, both countries experienced political unrest after the political revolutions. The dominant political parties that won elections in the two countries have little experience in governing.24 Both countries were struggling to balance the influence of Islam within their fledgling democratic systems, mostly because these two cases are Islamic states and have always engaged with religion, producing and trying to impose on their people their interpretations of Islam. The Tunisian and Egyptian regimes have accomplished this in different ways, according to their specific histories. However, both have used Islam as a tool for social engineering, and they have, at the same time, attempted to separate political dissent from religious inspiration.25 However, there are many significant differences between the two cases when dealing with the transition to a democratic regime, the way of establishing a new constitution, and the intention to promote reconciliation. The following section will present how the constitution-making process was conducted in the two societies—Tunisia and Egypt. The aim is to analyze this process in light of the conditions that have determined in the previous section.

3.1 Constitution-Making in Tunisia A strong and massive popular mobilization in 2011 succeeded in ending the rule of Ben Ali and opened a transitional period that led to free elections and a new interim government. It should be noted that widespread protests in Tunisia were not a new phenomenon. However, one of the main demands of the protests in this uprising was designing a new constitution.26 Especially since Ben Ali bound much of the disaffected political class to himself through a National Pact, which supposedly paved the way for constitutional revisions. He used constitutional maneuvering to repeatedly extend his term of office, secure the exclusive privileges of his party, and undermine the democratic potential of reforms. For Tunisians, post-independence democracy was lost because the constitution continually reproduced the supremacy of the executive at the expense of the legislative, such that the legislation itself became 23 Gordner, M (2012) Democratic transition in Egypt and Tunisia: Lessons for “Arab Spring” states. http://www.consultancyafrica.com/index.php?option=com_content&view=article& id=1073. Accessed 7 July 2014. 24 Glenna, M (2013) Why Comparison between Tunisia and Egypt aren’t helpful. Daily News. http:// www.dailynewsegypt.com/2013/09/08/why-comparisons-between-tunisia-and-egypt-a. Accessed 8 Aug 2014. 25 Zeghal, M (2014) Uprising in Egypt: The Power of a New Political Imagination. http://blogs.ssrc. org/tif/2011/02/22/the-power-of-a-new-political-imagination/5/13/2014. Accessed 7 July 2014. 26 Zeghal (2013), 254–274.

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an extension of the president’s wishes. Thus the starting point for democratization after the revolution of 2011 was the construction of a constitution without this flaw.27 That is why acting President Fouad Mebazaa announced on 3 March 2011 that there will be elections for the new transitional government, which was charged with preparing a new constitution in advance of presidential and legislative elections. A further development was the legalization of the Islamist Ennahda party on 11 March. These actions were a sign that the parameters for a political organization that marked the Ben Ali construct were being abandoned and new ones set, which could offer a more inclusive and pluralist future.28 It should be noted that although Ennahda was not active in the revolutionary movements of 2010–2011, it was the most active party in Tunisia after gaining legal status on 1 March 2011, mainly because of its organization and financial resources. Ennahda was first formed by Rachid Ghannouchi and Abdel Fattah Mourou in 1981 as the Islamic Tendency Movement. The former president Habib Bourguiba repressed the party. The name of the party was changed to “Ennahda” in 1988 to comply with the stipulation that names of political parties could not have religious references. The party remained illegal under Ben Ali’s regime, but individual members ran as independents in the elections of the late 1980s and early 1990s. After its victory in the 23rd election, Ennahda faced a double challenge in both affirming its religious identity and preserving the alliance with its secular counterparts in the governing coalition.29 It should be noted that when The National Constituent Assembly (NCA) was elected, it began its operation with an internal mechanism that defines its missions regarding the constitution and the requisite time that will be granted for it to draft the new constitution. This was important because this body was elected, whereas former president Fouad Mebazza was not elected but rather appointed due to the political circumstances at that time.30 The Assembly decided to start drafting the constitution from scratch. This, in itself, was initially argued as a radical move designed to meet revolutionary expectations and start anew the construction of a nation plagued with autocracy and corruption.31 After the elections, The National Constitutional Assembly established several committees to draft the constitution, each focused on a different section: the preamble, basic principles and constitutional amendment provisions, rights and freedoms, legislative and executive powers and their relationship, the ordinary, administrative, financial and constitutional judiciary, constitutional bodies, and state, regional, and local authorities. The President of the NCA and the chairs of the drafting commissions 27 Murphy

(2013), 231–247.

28 Ibid. 29 Brody-Barre

(2013), 211–230. Al-Awsat (2012) Interview: Ennahda Movement’s Rachid Ghannouchi. https://engarchive.aawsat.com/theaawsat/interviews/interview-ennahda-movements-rachid-ghannouchi. Accessed 5 Dec 2014. 31 Omri, MS (2013) Tunisia: Draft Constitution Reflects Compromise. ALL Africa. http://thinkafri capress.com/tunisia/draft-constitution. Accessed 7 July 2014. 30 Asharq

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form a Joint Committee for Coordinating and Drafting (JCCD), to be responsible for reconciling the drafts of the different committees.32 Despite the success of the election, the constitution writing process in Tunisia was intense and prolonged. It was supposed to last for one year, but it took much longer. Two issues divided the constituent assembly and the Tunisian political parties; the essence of the constitution and the issue of power. Writing of the constitution involved a battle about some of the principles, mainly about the nature of the political system, which came close repeatedly to derail the process. The battle of principles centered on whether the new constitution would maintain the secular character of the constitution of 1959, or would incorporate Islamist elements. When the Constituent Assembly and the troika government were in crisis and could no longer control the situation, a new broad coalition of political and civil society groups took the lead, forcing Ennahda and its partners in the government to accept a new transition process. Tunisia overcame the crisis that threatened to halt progress toward democracy by temporarily abandoning the formal rules adopted by a democratically elected assembly and relying on a process that was in part direct. This strategy proved its effectiveness and enabled the continuation of the constitution-making process.33

3.1.1

Transformation of the Regime’s Nature

One of the striking characteristics of Tunisia’s political landscape before the revolution was the ostensive obliteration of any oppositional or alternative political space. Although, spaces of political contention have existed all the time, even under the increasingly authoritarian political conditions of Ben Ali’s rule, yet such spaces and practices were largely ignored because of their unseen location outside the official realm of politics, which included a controlled civil society and the co-opted electoral system with a few legal political parties that were allowed to compete in one of the region’s most uncompetitive systems. Ben Ali did not allow any sort of organized activity criticizing his government. Even when organizers applied for protest or demonstration permits where the intent was not to explicitly criticize the regime, but rather express grievance to issues such as working conditions, the authorities routinely denied permission to assemble in public.34 The political uprising in 2011 changed the rules of the political game and allowed the beginning of a political transition. From the end of the revolution until the elections of a Constituent Assembly on 23 October 2011, Tunisia witnessed three distinct governments. Through this transitional period, the president and provisional governments issued legislation and 32 Zoglin,

Katie (2013) Tunisia at a Crossroads: Drafting a New Constitution. Dig Jou Insights. https://www.asil.org/insights/volume/17/issue/18/tunisia-crossroads-drafting-new-constitution. 33 Ottaway M (2014) Democratic Transition and the Problem of Power. Middle East Program Occasional Paper Series. Wilson Center. https://www.wilsoncenter.org/sites/default/files/democratic_t ransitions_and_problem_of_power.pdf. Accessed 7 July 2014. 34 Chomiak (2011), 68–83.

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decrees, while the High Commission for Achieving the Goals of the Revolution served as the main framework for parties, associations, and prominent civil society actors.35 The elections were the first clear institutional test for the democratic aspirations reflected by the people. They were perceived by the international observer missions as an outstanding success and “free and fair” and they led to a formation of a coalition government that included both secular and Islamist parties. The legal structures for the elections represented a triumph of democratic intention over operational purpose and clarity. Norms of freedom, equality, and tolerance of plurality, were woven into both the process and the statutory construction, although retaining the role of the state in curbing uncivil behaviors.36 Moreover, the election of Tunisia’s National Constitutional Assembly can be seen as a significant victory for the transition to democracy in Tunisia. The constituent assembly consists of 217 members elected proportionally from a party-based list system. Ennahda won 90 seats in the assembly.37 To a certain extent, the results of the elections were surprising. Especially since Ennahda had done considerably better than most analysts had expected and it won over 40% of the popular vote. The secularist party—the Progressive Democratic Party (PDP), won only 16 seats. The win of Ennahda was attributed to its success and its opposition’s failures. In fact, Ennahda ran the most organized and structured campaign, and it produced a comprehensive and glossy manifesto brochure that offered 365 policy commitments covering politics, economics and social development. Moreover, it distinguished itself from all aspects of the previous regime and laid out a vision for the future, which had broad appeal. In contrast to the Ennahda party, the PDP made several crucial mistakes and, most importantly, that it was the only legal opposition party to accept the last offer of Ben Ali to reform a national unity government. This mistake reflected in an election campaign that stressed reform rather than revolutionary change. Moreover, the leader of the PDP party run elitist, personality driven campaign and rejected collaboration with Ennahda in a future coalition government, leading him to appear both arrogant and too defensive of the extreme secularism of the previous regimes.38 It should be noted that one of the main issues in the election discourse was the arguments about whether or not the Islamist Ennahda party intended to transform Tunisia into a new theocracy. Secularists warned that Ennahda would enforce wearing hejab, erode women’s rights, and destroy the tourism industry by banning alcohol and beachwear. Apart from the centrality of the debate about Islam’s status in the country’s political future in the election campaigning, these events illustrated the specificity of the Tunisian politics at the first stages of the transition. The entire debate was framed in terms of the rights of individual citizens, the rule of law, and the pursuit of democratic government. Both sides rejected the idea that any party should be enabled to impose one cultural code upon all Tunisians. To a certain extent, Tunisia navigated 35 Allani

(2013), 131–140. (2013), 231–247. 37 Pickard (2011), 637–652. 38 Murphy (2013), 231–247. 36 Murphy

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the transition to democracy in relative success. Within a short period, Tunisia moved from authoritarian rule to free, fair, and transparent elections, and the political power shifted from narrow and urban elite to a broad-based coalition.39

3.1.2

Transformation of Political Culture

During the uprisings, protesters did not represent the future of Tunisia as “Islamic” or “secular”. They saw it as reconfigurable, for the sudden absence of institutionalized politics made it ripe for radical change, allowing unification around the demand for a total rupture with the past. The religious/secular dichotomy, although an ordinary staple in the political narratives of an authoritarian politics, did not help Tunisians articulate their political demands, chiefly the departure of Ben Ali and the end of the authoritarian regime. They saw themselves as one “people” endowed with agency, as expressed in the slogan “the people want”. This exceptional and extraordinary moment ended when the president fled, and end with it fugitive democracy.40 After the revolution, a conflict broke out among the political elites on the nature of the relationship between “state” and “religion” in the future democratic system. Since there was no deep preparation for the ensuing debate around this sensitive issue, the discussions between the Islamists and secularists took on a sharp tone and were characterized by hard line attitudes and mutual recriminations. The fact that it almost turned into a stubborn struggle raised fears for the future of the revolution, whose motives and slogans were as free of ideology as they were a social revolution with democratic dimensions.41 Under the regimes of Presidents Bourguiba and Ben Ali, the public interpretations of Islam and secularism were mainly defined and authorized by the state. However, after the end of the Ben Ali regime, issues related to Islam and secularism served as differentiation devices in the political arena. Especially since it was a time of expanded freedom of expression and a weakened central authority. After the political uprising, Tunisians were projecting the question of Islam back into the analysis of the nature of the massive that created a political rupture.42 Historically, although defining the identity of the state as “Islamic State” was not part of the Arab reawakening thought, it did not mean that there was agreement on the separation between state and religion. In the period that preceded colonialism, what was uppermost in the minds of the majority, is reforming the political entities that, modernizing army and administration, and bridging the gap between authorities and people. It was necessary in order to endow a minimum level of legitimacy and efficacy, by restricting its powers and attaching conditions to it. Thus, when Tunisia gained its independence and the establishment of the state began, and members of the Constituent National Assembly were elected to draft the country’s new constitution 39 Ibid. 40 Zeghal

(2013), 254–274. (2013), 358–375. 42 Zeghal (2013), 254–274. 41 Jourchi

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and to discuss the cultural background of the new national state, it became clear that the elite had no model to emulate except the modern European-style state and in particular the French model.43 However, the influence of religion on society has become more prominent under the new Tunisian administration than was under the regime of Ben Ali. Throughout the Ben Ali era, the ruling party, known as the Constitution Democratic Rally, tried to curb any religious influence on Tunisian society by prohibiting the formation of any religion based political parties. Following the revolution of early 2011, more room was created for religious political parties to operate in the country.44 Although neither the Islamists nor the secularists took part in launching or leading the revolution in Tunisia, they had tried earlier on to bridge their ideological differences on essential matters, chief among which was defining the nature of the state.45 While anti Ennahda voices among political elites worked hard to push for recognizable division between Islam and modernity, Ennahda leaders defended their vision of modernity- one which aligns with Tunisian history and has room for religion in public political life.46

3.1.3

Means to Achieve Reconciliation

After the elections of the Constitutional Assembly, Ennahda has expressed repeatedly that the new constitution should be written in the spirit of “national consensus” and should “represent all of Tunisian society”. However, its skeptics argued that Ennahda might interpret “all of Tunisian society” and “national consensus” differently to what is commonly understood of it. Nevertheless, the results of the Tunisian elections forced all parties in parliament including, Ennahda—to form alliances during discussing the different articles of the constitution, trying to get a majority to approve the articles that will be included in the constitution.47 The National Constituent Assembly established several agreements between major political parties. These agreements and compromises are manifest in the preamble of Tunisia’s constitution that calls for an “Arab-Muslim” state that aspires towards the principles of a participatory and democratic republic. Moreover, it was agreed that the Tunisian regime would be based on civil institutions that aim to guarantee the desires of the people, support their right to determine their destiny, and ensure respect for human rights. It should be noted that “Sharia” was agreed,

43 Jourchi

(2013), 358–375. G (2013) The Role of Islamic Law in Tunisia’s Constitution and Legislation PostArab Spring. Library of Congress. https://www.loc.gov/law/help/role-of-islamic-law/tunisia-con stitution.php. Accessed 27 May 2014. 45 Jourchi (2013), 358–375. 46 Chomiak (2011), 68–83. 47 Ali A (2013) A Comparison: Tunisia, the next Egypt? https://aliyoub.wordpress.com/2013/08/ 15/a-comparison-tunisia-the-next-egypt/. Accessed 7 July 2014. 44 Sadek,

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would not explicitly be mentioned in the preamble of the constitution.48 Rached al-Ghannouchi declared that Ennahda would not ask for the inclusion of sharia as a source for legislation in the constitution. This declaration put an end to the tensions between Islamists and secularists. Ghannouchi understood that Article (1) of the 1959 constitution was sufficient to make Islam the foundation of a way of life in Tunisia. He believed that Islam had to be embodied and practiced rather than theorized and mentioned in the constitutional document.49 Moreover, Ghannouchi’s first post-Ben Ali government made a gesture of reconciliation, by including 11 leading opposition and civil society figures among its 23 ministers.50 The formation of the government from representatives of the various groups was intended to indicate the desire to include all the different groups in the new regime. It expressed a step towards a better future, different from the political situation that lasted for years and was expressed by elite control. These measures were intended to allow some degree of agreement that would enable the success of the constitutional process and the transition of Tunisia to a democratic regime after years of a totalitarian rule.

3.2 Constitution Making in Egypt Different reasons led to the political uprising in Egypt, but the most crucial was a lack of democracy and economic stagnation. Like other Arab states, the Egyptian regime was mostly inefficient and corrupt, lacking meaningful venues for political participation, the rule of law, and political accountability. The gap between rich and poor in Egypt remind wide while the governments have struggled to deal with endemic problems of unemployment and inflation.51 During the uprising, all sectors of society were involved in the demonstrations against Mubarak’s regime. Among these sectors were leftists, feminists, Islamists, and Arab nationalists. Overall the uprising was made up of all social classes and educational backgrounds. However, the cracks began to show soon after Mubarak’s downfall. It was clear that a united vision for the future of Egypt was not shared by all the different groups, especially the differences between the various Islamist groups on the one hand, and the seculars on the other.52 Therefore, it is not surprising that “The Battle for the constitution” was the most accurate and used phrase to describe the constitution-making process in the postMubarak Egypt. The “battle” began when the leading political parties failed to define 48 Gordner, M (2012) Democratic transition in Egypt and Tunisia: Lessons for “Arab Spring” states. http://www.consultancyafrica.com/index.php?option=com_content&view=article& id=1073. Accessed 7 July 2014. 49 Zeghal (2013), 254–274. 50 Murphy (2013), 231–247. 51 Dede (2012), 99–121. 52 Hellyer (2011), 118–125.

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the rules that should govern the constitution-making process. Such rules should reflect the different conceptions regarding the process, as well as of the general contours of the constitution’s substance.53 Adopting the first constitution after the political uprising in Egypt was described as illegitimate and flawed and unrepresentative of the Egyptian people as a whole.54 The Egyptian constitution-making reflects a conflict between two schools of thought over the process of writing constitutions. The first is the classical school relates to the constitution-making process as a distinct field that rises above the changing day-to-day politics. It means that all those involved should help protect the constitution’s lofty status and preserve its value as a reference for both the government and the governed. At the revolutionary idealist moment that existed after Mubarak’s overthrow, this school’s opinion was closer to that of the unorganized Egyptian masses who thought it is possible to separate the constitution-making process from the unfolding struggle for political power. The other school is closer to political realism in believing that the constitution-making process cannot be separated from the political balance of power in which constitution-making takes place. This school stresses that this is usually the case during democratic transition.55 The different perspectives were reflected in the dispute over the constitutionmaking in Egypt. Secular political groups opposed the plan set by the constitutional amendments and called for a vote with (NO) and to refuse the constitutional amendments. They pointed up that the constitution of 1971 has ended with the fall of Mubarak, and a new one must be written. On the other hand, the Muslim Brothers supported the amendments. This dispute was the beginning of a new phenomenon: vote division based on secular-religious polarization, which continued after that during the parliamentarian and presidential elections. The main reason for those two trends to have different positions regarding this issue is that the secular forces thought that the priority should be to reach a consensus on constitutional principles which will govern the political scene in Egypt after Mubarak before the relative sizes of each political party are known in the elections. The Muslim Brothers wanted to start the transitional period with the elections that they thought they would win, and hence they would have more leverage over the writing process of the new constitution. The results of the first round elections disappointed all who had hoped to build a new political regime.56 For this reason, adopting the constitution in Egypt was

53 Farouk, Y Writing the Constitution of the Egyptian Revolution: Between Social Contract and Political Constructing. Arab Reform Initiatives. http://www.arabreform.net/sites/default/files/Cons_E gyptian%20Constitution_Y.Farouk_Nov13_Final_Layout_En.pdf. Accessed 27 May 2014. 54 Sickinghe, E. (2013) The Egyptian Constitution: Looking Beyond Seasonal Forecasts. ArabsThink. http://arabsthink.com/2013/02/05/the-egyptian-constitution-looking-beyondseasonal-forec. Accessed 8 Aug 2014. 55 Farouk, Y Writing the Constitution of the Egyptian Revolution: Between Social Contract and Political Constructing. Arab Reform Initiatives. http://www.arabreform.net/sites/default/files/Cons_E gyptian%20Constitution_Y.Farouk_Nov13_Final_Layout_En.pdf. Accessed 27 May 2014. 56 Fahmi G (2012) Egypt Presidential Elections 2012: The Survival of the July 1952 regime. Arab Reform Initiatives. https://archives.arab-reform.net/en/node/446. Accessed 27 May 2014.

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described as illegitimate and flawed and unrepresentative of the Egyptian people.57 This was one of the main reasons that lead the Egyptian people to take part in the demonstrations against Morsi’s administration. Since July 3, 2013, former President Mohammed Morsi and the Muslim Brotherhood have been accused by the military, the courts, and the public of an extravagant array of crimes and sins, incompetence and maladministration, and attempts to undermine its culture and society by appointing Islamists to positions of power.58

3.2.1

Transformation of the Regime’s Nature

The political uprising that brought down the Mubarak regime had political, economic, and social origins. To different extents, this may be a valid proposition for all transition processes. However, the weight of economic and social origins was far oppressive in Egypt’s case than in other Arab states, including Tunisia.59 There are significant signposts that marked the process of constructing the political system in the first 18 months of transition: the referendum and the constitutional declaration of March 30 2011, the period of political debate and power struggle that ensued the June 2012 decisions of the constitutional courts, the complementary constitutional declaration, and the presidential elections, and the consolidation by the new president of his powers and the apparent end of the military’s explicit political role.60 When the military called to the polls in March 2011 to approve a series of constitutional amendments, the revolutionary coalition began to tear. Islamists embraced the referendum because it promised a quick transition process and the rapid return of an elected parliament. Non-Islamist rallied around the idea of writing the constitution first, but they were too slow in laying out a coherent alternative plan for a transition.61 Decades of authoritarian rule left behind an unbalanced political scene that tilted elections towards the Islamist and gave non-Islamists a deep mistrust of the ballot. Because participation in formal politics was so unpromising under authoritarian rule, the result was that non-Islamist parties were not organized enough by 2011 and did not have much power. However, with their broader social agenda, Islamists had more profound and more extensive organizations that could be quickly turned to electoral purposes. Non-Islamist had nothing to match these.62 Muslim Brotherhood coalition won more than 50% of the votes in parliamentary elections in 2011, with the Salafist party becoming second (25%). Parliament then was dominated by Islamists, and 57 Sickinghe, E. (2013) The Egyptian Constitution: Looking Beyond Seasonal Forecasts. ArabsThink. http://arabsthink.com/2013/02/05/the-egyptian-constitution-looking-beyondseasonal-forec. Accessed 8 Aug 2014. 58 Ottaway M (2014) Democratic Transition and the Problem of Power. Middle East Program Occasional Paper Series. Wilson Center. https://www.wilsoncenter.org/sites/default/files/democratic_t ransitions_and_problem_of_power.pdf. Accessed 7 July 2014. 59 Awad (2013), 275–292. 60 Ibid. 61 Brown, (2013), 45–58. 62 Ibid.

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Muslim Brotherhood candidate—Muhammed Morsi—become a year later president after winning presidential elections with 51.7%.63 In the Egyptian case, an exclusive focus on electoral politics following the revolution had a negative impact on democratic transition, leaving Egyptians with elections, but with a low level of democracy. The Muslim Brotherhood and the Supreme Council of Armed Forces (SCAF) excluded non-elite and non-Islamist groups like women, Coptic Christians, students, and labor unions by supporting parliamentary elections before drafting of the constitution.64 Since the ousting of Mubarak, filling the post of the presidency has been one of the pillars of Egyptian stability. It perceived as required for a successful move to democracy. In one of the most protracted multicandidate elections in modern Egyptian history, the presidential electoral process officially took more than 100 days. After his election, the Egyptian president Morsi, gave four speeches on the 29 and 30 of June 2012. In these speeches, Morsi presented himself as a compromising man and emphasized his respect for all state institutions and to the constitutional and revolutionary legitimacies. However, this issue has not been implemented in practice.65 The result was increasing the conflict between the supporters of the Muslim Brotherhood and the other groups that make up the Egyptian people. In July 2013, demonstrations were held against Morsi and the Muslim Brotherhood, and with the support of the SCAF, it brought to overthrow of Morsi’s administration. The point is that the downfall of this regime and thus the 2012 Constitution did not begin with its suspension on 3 July 2013. It began when the new polity perceived the constitutional process as a mechanism that would allow it an immediate place within the same old regime. Establishing a constitution within these limits, hindered the construction of a framework that would gradually transform the state of revolution into a state of transition to democracy. Moreover, the problem is that also the constitutional process that started in July 2013, did not aim to establish a constitution of the “Egyptian revolution”, but rather about subduing the Muslim Brotherhood through the elimination of “their” constitution. While doing so, the new polity of 2013 adopted the same perception of 2012 regarding the constitution and the constitution-making process, as a collecting power mechanism and not as an overarching reference for the entire political system that regulates state-society relations.66

63 Ali

A (2013) A Comparison: Tunisia, the next Egypt? https://aliyoub.wordpress.com/2013/08/ 15/a-comparison-tunisia-the-next-egypt/. Accessed 7 July 2014. 64 Gordner, M (2012) Democratic transition in Egypt and Tunisia: Lessons for “Arab Spring” states. http://www.consultancyafrica.com/index.php?option=com_content&view=article& id=1073. Accessed 7 July 2014. 65 Rabou (2012), 15–24. 66 Farouk, Y (2013) Writing the Constitution of the Egyptian Revolution: Between Social Contract and Political Constructing. Arab Reform Initiatives. http://www.arabreform.net/sites/default/files/ Cons_Egyptian%20Constitution_Y.Farouk_Nov13_Final_Layout_En.pdf. Accessed 27 May 2014.

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397

Transformation of Political Culture

The political uprising in Egypt opened the political space to new actors. For the first time, the Muslim Brotherhood and Salafists founded political parties that could take part in the political game. The Muslim Brotherhood (MB) was by far the most organized force in Egypt after the ruling party of Mubarak, has been in operation for decades as a tolerated but banned movement that had taken care of social welfare services in many parts of the country, where the regime had failed to meet the needs of the people. The transformation of the Muslim Brotherhood and the other Islamist parties into legitimate parties had two significant consequences: on one hand, accepting the participation of Islamist parties was a first test on the road to democracy, on other hand, accepting the values and rules of the game by the Islamist parties means that they could not embrace practices contrary to democracy.67 However, the disputes quickly increased between the Islamists and the secular parties, especially regarding the new constitution. One of the themes that constituted deep divisions is the reference to Islam as the religion of the Egyptian state. Many Egyptians worried that dictating Islam as the religion of the state in the constitution is a step backward that may lead to religious discrimination, especially towards the Coptic group. The Muslim Brotherhood was eager to preserve Article (2) in the Egyptian Constitution because it would play a crucial rule in justifying the existence of the Muslim Brotherhood and ensuring its legitimacy.68 This issue had adversely affected the results of the constitution-making process. Most of the groups perceived the constitutional process, as an unrepresentative process that does not take into account the perspective and the desires of the various political and social groups. Thus, the constitution of 2012 was perceived by large parts of the Egyptian people as illegitimate. In fact, the political culture that characterized the constitutional process in Egypt was a political culture characterized by the exclusion of the various and the concentrations of power in the hands of one group only.

4 Discussion and Conclusions This article aimed to deal with the process of constitution-making in conflicted societies and how this process can contribute to resolving conflicts between conflicted communities and achieving reconciliation between them. The article focused on examining this issue in two societies: Tunisia and Egypt. Especially since one of the results of the political and social uprising that occurred in the Arab states in the last years is the beginning of a new wave of constitution-making processes.69 However, not all Arab states conducted their constitution-making processes in the same way. 67 Hellyer

(2011), 118–125. (2013), 35–51. 69 Flores, Z (2014) Problems in Process: Post-Arab Spring Constitutional Making. http://constitution aldesign.law.northwestern.edu/2014/04/21/problems-in-process-post-arab. Accessed 7 July 2014. 68 Abdelaal

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In some of these states, the constitution-making process contributed to achieving reconciliation between the different groups, whereas in other states, the constitutionmaking process increased these conflicts. As this article shows, Tunisia differs from Egypt in many aspects, when analyzing how constitution-making processes were conducted in these two states. There are differences in the way the Islamists parties in these states operate. Unlike the Muslim Brotherhood in Egypt who took control over the government, Ennahda in Tunisia has not been governing alone, and it led a coalition with two secular parties. The Egyptian secularists claim that Muslim Brotherhood monopolized power and that President Morsi was an autocrat. Additionally, the constitution-making process in Tunisia has been long, and it was based on a real debate between Islamist and secular members of the constitutional assembly, and both sides have been making concessions and willing to accept compromises. This was not the situation in the Egyptian case, wherein the constitution was written in a hurry by an Islamist dominated commission and was approved through a referendum in which the result was less than (33%).70 Moreover, an important point that must be addressed regarding the constitutionmaking process in these countries is the desire to achieving reconciliation between the different groups in these two states. The new polity in Tunisian has managed to reach a consensus and to ensure reconciliation, unlike the Egyptian one. Since the beginning, Tunisia has chosen a constitutional path, creating an elected Constitutional Assembly in order to draft a new constitution. In this assembly, Ennahda- the Islamist party, procured (41%) of the members and thus needed a broader coalition in order to run the government. Therefore, the Islamist party chose to work in a coalition with the two main secular parties, Congress for the Republic and Ettakatol.71 However, the Egyptian regime that was dominated by the Muslim Brotherhood made many mistakes that led to the fall of President Morsi. The loss of consensus was immediate, and the result was the inability of Morsi and the Brotherhood to work together with the other political forces to design a shared social and institutional future and a constitution that is acceptable to all groups in Egypt. In fact, Egypt’s post-revolution regime was characterized by a single party- the Muslim Brotherhood, while Tunisia has been governed by a coalition between the Ennahda party and the two secular parties, Ettakatol and the Congress for the Republic. The Tunisian government has managed to resolve disputes through political concessions and compromises. Ennahda has ceded key ministries to secular parties and independents and limited the references to Islam in the draft of the constitution.72 Furthermore, Tunisia that is characterized by more advanced and diverse political culture, has succeeded in the democratization process even with an Islamist party leading its government. The success is mostly due to the well-established political 70 Ghanem H (2013) Will Tunisia Follow Egypt?. Brookings. https://www.brookings.edu/opinions/ will-tunisia-follow-egypt/. Accessed 7 Aug 2014. 71 Merone, F (2013) Tunisia and the divided Arab Spring. Open Democracy. http://www.opende mocracy.net/fabio-merone/tunisia-and-divided-arab-spring. Accssed 8 Aug 2014. 72 Glenna, M (2013) Why Comparison between Tunisia and Egypt aren’t helpful. Daily News. http:// www.dailynewsegypt.com/2013/09/08/why-comparisons-between-tunisia-and-egypt-a. Accessed 8 Aug 2014.

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competition. The emerging electorate was sophisticated, multilateral, and prepared. However, in Egypt, the Muslim Brotherhood was the only effectively organized political opposition during the Nasser-Sadat-Mubarak era.73 Moreover, Tunisia’s political transition has been successful because of a commitment to consensus and compromise. A broad spectrum of political elites has influenced the transition’s progress.74 Indeed, the transition in Tunisia has made strides in the direction of democracy. The interim government instituted reforms to increase personal, political and press freedom, released political prisoners, legalized political parties and began a process of transitional justice. Moreover, writing a new constitution by the elected National Constitutional Assembly and creating a government to rule until presidential and parliamentary elections were viewed as fair, transparent, and well-conducted.75 It should be noted that the events in Egypt have had a considerable impact on Tunisian politics right from the moment the army stepped to topple president Morsi. It did not take long before Tunisian political parties were quick to respond to the Egyptian events. Many of them pointed out that Tunisia differs from Egypt and that the Egyptian scenario is one that Tunisia should be avoided at all costs.76 Another critical issue in this regard is that a transition from an authoritarian to a democratic system usually involves a redistribution of power. The departure of Tunisian President Ben Ali created a power vacuum, but the overthrow of Egyptian President Hosni Mubarak did not. Tunisia was able to embark on a democratization process not because the Tunisian citizens were politically more mature, or its political class more enlightened, but because Ben Ali’s sudden departure created a power vacuum no single actor could fill. However, there was never a power vacuum in Egypt. The Supreme Council of the Armed Forces deposed President Mubarak and immediately assumed executive and legislative powers for a transitional period that lasted until June 30, 2012. The power was formally transferred to President Mohammed Morsi, but in practice, the situation was different. Morsi did not control the military, the police, the judiciary, or the top levels of the bureaucracy, who were not politically neutral but strongly opposed to him. The military was having other thoughts about allowing Morsi to govern, and on July 3 2013, following massive demonstrations, the SCAF openly seized power again.77 Two things were needed for Egypt’s post-2011 democratic development: a broad agreement among elites on the rules of the transition, and a procedure that allowed 73 Morrissey E (2013) Why did Democracy fail in Egypt but succeed in Tunisia? Hot Air. http://hotair.

com/archives/2013/07/06/why-did-democracy-fail-in-egypt-but-succeed-in-tuni. Accessed 7 July 2014. 74 Pickard D (2014) Tunisian Politics after Constitution Making. Muftah. https://muftah.org/gettingalternance-tunisian-politics-constitution-making/#.XaduauZKg_6. Accessed 7 July 2014. 75 Brody-Barre (2013), 211–230. 76 Ali A (2013) A Comparison: Tunisia, the next Egypt? https://aliyoub.wordpress.com/2013/08/ 15/a-comparison-tunisia-the-next-egypt/. Accessed 7 July 2014. 77 Ottaway M (2014) Democratic transition and the problem of power. Middle East Program Occasional Paper Series. Wilson Center. https://www.wilsoncenter.org/sites/default/files/democratic_t ransitions_and_problem_of_power.pdf. Accessed 7 July 2014.

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people to express their will early, without having all matters settled by backroom deals. There was a need for a consensus on the rules and popular participation in order to guarantee democracy.78 The constitutional experience in 2012 confirms that the only safe exit for a constitutional process locked in logic of short-term balance of power is the participation and equal representation of all political and social forces.79 However, the problem goes far beyond a failure to conduct a new constitutional order. The pre-revolutionary constitutions have been used as models in the drafting process. Egypt used its 1971 constitution as a starting point for its deliberations that resulted in the 2012 constitution. However, Tunisia decided to set aside the failed 1959 Tunisian constitution and to establish a new constitution. Public participation and the nature of the interim power in Tunisia’s constitutional-making process resulted in the Constitution of 2014 that has been characterized as the only success story of the post-Arab spring. Another issue critical to the constitutional-making process is timing. One of the mistakes of President Morsi during his short rule was his decision to maintain the drafting process that had been established by the Supreme Council of the Armed Forces in March 2011. The SCAF, clearly not expert in democratic transition, imposed a 6-month timeframe for the entire constitutional drafting process.80 This decision had a decisive influence on the constitutional process and the political changes that followed.81 Unlike Tunisia that succeeded to some extent to move toward democracy, Egypt has regressed from one kind of authoritarianism of the Mubarak period to anther kind of authoritarianism. Many Egyptians claim that their country experienced not one but two revolutions, in January–February 2011 and June-July 2013. In reality, Egypt did not experience even a single real transfer of power in this period. The military had been the power behind Mubarak, and on February 2011, the SCAF forced Mubarak out of the office and governed directly until the 2012 presidential elections. It then stepped aside briefly, letting the elected president take office, but within a few months, it started preparing a new takeover, openly returning to power in July 2013.82 This situation has dramatically influenced the perception of the constitution as legitimate among Egyptian citizens and the possibility of reducing tensions between the various groups. Making a constitution that is legitimate and acceptable should involve a process of national dialogue, allowing competing perspectives and claims 78 Brown

(2013), 45–58.

79 Farouk, Y Writing the Constitution of the Egyptian Revolution: Between Social Contract and Polit-

ical Constructing. Arab Reform Initiatives. http://www.arabreform.net/sites/default/files/Cons_E gyptian%20Constitution_Y.Farouk_Nov13_Final_Layout_En.pdf. Accessed 27 May 2014. 80 Flores Z (2014) Problems in Process: Post-Arab Spring Constitutional Making. http://constitution aldesign.law.northwestern.edu/2014/04/21/problems-in-process-post-arab-. Accessed 7 July 2014. 81 On the implication of military intervention on constitution-making process, see the in the Volume Fatih Öztürk, Again: From 1867 to Today, Making a Constitution under an Elite Umbrella in Turkey Fatih Öztürk. The chapter discusses this issue extensively in the context of the Turkish case. 82 Ottaway M (2014) Democratic transition and the problem of power. Middle East Program Occasional Paper Series. Wilson Center. https://www.wilsoncenter.org/sites/default/files/democratic_t ransitions_and_problem_of_power.pdf. Accessed 7 July 2014.

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and promoting reconciliation between different groups.83 The constitution in Egypt should be seen as a compromise between conflicting political interests and as a political project in which interest and conflicts will be negotiated.84 Additionally, the success of the political transition should involve aspects of transitional justice, and establishing the rule of law and economic reconstruction. A starting point in the direction of democracy in Egypt must be an establishment of an investigation committee to discover individuals who were responsible for acts of violence during and before the political uprising and truth and reconciliation commission that will be responsible for achieving national reconciliation process.85 A few years after the beginning of the Arab uprisings, Tunisia and Egypt are moving in entirely different directions. Tunisia has achieved considerable success in adopting a constitution through a process that, despite delays, interruptions, and other crises, has remained reasonably democratic. Not so in Egypt, that has reverted to violence and struggle between the Muslim Brotherhood’s supporters and the new regime.86 It should be noted that it is still too early to determine the success of the constitution-making processes definitively in the cases of Tunisia and Egypt. However, as this article aimed to point out, these two cases are different examples of constitution-making processes in conflicted societies and how such a process may bring about reconciliation. Besides, a sharper determination of the success of the constitution-making process in achieving reconciliation requires an examination of the other conditions that this article did not examine. The emphasis of this article was defining some of the conditions needed to transforming the constitution-making process into a reconciliatory process in divided societies such as Tunisia and Egypt.

References Abd Rabou A (2012) Egypt after elections: towards the second republic. Insight Turke 14(3):15–24 Abdelaal M (2013) Religious constitutionalism in Egypt: a case study. Fletcher Forum World Aff 37(1):35–51 Ackerman BA (1992) The future of liberal revolution. Yale University Press, New Haven Allani A (2013) The post-revolution tunisian constituent assembly: controversy over powers and prerogatives. J Nor Afric Stud 18(1):131–140 Arendt H (1963) On revolution. Viking Press, New York Aristotle (1984) The politics (trans and intro: Lord C). University of Chicago Press, Chicago Awad I (2013) Breaking out of authoritarianism: 18 months of political transition in Egypt. Constellations 20(2):275–292 Bannon A (2007) Designing a constitution-drafting process: lessons from Kenya. Yale Law J 116(8):1824–1872 83 Yilmaz

(2012), 484–489. (2013), 345–363. 85 Yilmaz (2012), 484–489. 86 Ottaway M (2014) Democratic Transition and the Problem of Power. Middle East Program Occasional Paper Series. Wilson Center. https://www.wilsoncenter.org/sites/default/files/democratic_t ransitions_and_problem_of_power.pdf. Accessed 7 July 2014. 84 Lang

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Brody-Barre AG (2013) The impact of political parties and coalition building on Tunisia’s democratic future. J Nor Afric Stud 18(2):211–230 Brown NJ (2013) Egypt failed transition. J Democr 24(4):45–58 Challand B (2013) Citizenship against the grain: locating the spirit of the arab uprisings in times of counterrevolution. Constellations 20(2):169–187 Chomiak L (2011) The making of a revolution in Tunisia. Middle East Law Gov 3:68–83 Choudhry S (ed) (2008) Constitutional design for divided societies: integration or accommodation. Oxford University Press, New York Dede AY (2012) The Egyptian spring: continuing challenges a year after the arab spring. USAK Yearbook Polit Int Relat 5:99–121 Elster J (1995) Forces and mechanisms in the constitution-making process. Duke Law J. 45:364–96 Encaracion OG (2008) Reconciliation after democratization: coping with the past in Spain. Polit Sci Q 123(3):435–459 Hellyer HA (2011) Revolution in the arab world: Egypt and its challenges. Middle East Law Gov 3:118–125 Ishay M (2013) The spring of arab nations? paths towards democratic transition. Philos Soc Crit 39(4–5):373–383 James T, Alain G (eds) (2001) Multinational democracies. Cambridge University Press, New York Jourchi S (2013) The state and identity: The relationship between religion and politics- Tunisia. Contemp Arab Aff 6(3):358–375 Kymlicka W (2003) Multicultural states and intercultural citizens. Theory Res Educ 1(2):147–169 Lang AF (2013) From revolutions to constitutions: the case of egypt. Int Aff 89(2):345–363 Magnet J (2004) Modern constitutionalism. LexisNexis Butterworths, Markham, Ont Mahmoud M (2014)The politics of constitution-making and reconciliation in conflicted societies. Dissertation, Tel-Aviv University (In Hebrew) Murphy EC (2013) The tunisian elections of October 2011: a democratic consensus. J Nor Afric Stud 18(2):231–247 Pickard D (2011) Challenges to legitimate governance in post-revolution tunisia. J Nor Afric Stud 16(4):637–652 Samuels K (2005) Post-conflict peace-building and constitution-making. Chic J Int Law 6(2):662– 682 Teitel R (1997) Transitional jurisprudence: the role of law in political transformation. Yale Law J. 106:2053–2057 Williams M, Hanafin P (eds) (1999) Identity, rights and constitutional transformation. Ashgate, England Winder J (2005) Constitution writing and conflict resolution. Round Table 94(381):503–518 Yilmaz ME (2012) Egypt’s chance to become a democracy. Peace Rev 24(4):484–489 Zeghal, M (2013) Competing ways of life: islamism, secularism and public order in tunisian transition Constellations 20(2):254–274 Zoglin, Katie (2013) Tunisia at a crossroads: drafting a new constitution. Dig Jou Insights https:// www.asil.org/insights/volume/17/issue/18/tunisia-crossroads-drafting-new-constitution

Online Sources Ali A (2013) A comparison: Tunisia, the next Egypt? https://aliyoub.wordpress.com/2013/08/15/ a-comparison-tunisia-the-next-egypt/. Accessed 7 July 2014 Asharq Al-Awsat (2012) Interview: Ennahda movement’s Rachid Ghannouchi https://eng-archive. aawsat.com/theaawsat/interviews/interview-ennahda-movements-rachid-ghannouchi Accessed 5 Dec 2014

Constitution-Making, Political Transition and Reconcilation …

403

Fahmi G (2012) Egypt presidential elections 2012: the survival of the July 1952 regime. Arab Reform Initiatives. Accessed 27 May 2014. https://archives.arab-reform.net/en/node/446 Farouk Y (2013) Writing the constitution of the Egyptian revolution: between social contract and political constructing. Arab Reform Initiatives. http://www.arabreform.net/sites/default/files/ Cons_Egyptian%20Constitution_Y.Farouk_Nov13_Final_Layout_En.pdf Accessed 27 May 2014 Flores Z (2014) Problems in process: post-Arab spring constitutional making. http://constitutionald esign.law.northwestern.edu/2014/04/21/problems-in-process-post-arab. Accessed 7 Jul 2014 Ghanem H (2013) Will Tunisia follow Egypt?. Brookings. https://www.brookings.edu/opinions/ will-tunisia-follow-egypt/. Accessed 7 Aug 2014 Glenna M (2013) Why comparison between Tunisia and Egypt aren’t helpful. Daily News. https://wwww.dailynewssegypt.com/2013/09/08/why-comparisons-between-tunisia-andegypt-arent-helpful/. Accessed 7 Jul 2014 Gordner M (2012) Democratic transition in Egypt and Tunisia: lessons for “Arab Spring” states. http://www.consultancyafrica.com/index.php?option=com_content&view=art icle&id=1073. Accessed 7 Jul 2014 Merone, F (2013) Tunisia and the divided Arab spring. Open Democracy. https://www.opendemoc racy.net/en/tunisia-and-divided-arab-spring/. Accessed 7 Aug 2014 Morrissey E (2013) Why did democracy fail in Egypt but succeed in Tunisia? Hot Air. http://hot air.com/archives/2013/07/06/why-did-democracy-fail-in-egypt-but-succeed-in-tuni. Accessed 7 July 2014 Omr MS (2013)Tunisia: draft constitution reflects compromise. ALL Africa. http://thinkafricapress. com/tunisia/draft-constitution. Accessed 7 July 2014 Ottaway M (2014) Democratic transition and the problem of power. Middle East Program Occasional Paper Series. Wilson Center https://www.wilsoncenter.org/sites/default/files/democratic_t ransitions_and_problem_of_power.pdf Pickard D (2014) Tunisian politics after constitution making. Muftah. https://muftah.org/gettingalternance-tunisian-politics-constitution-making/#.XaduauZKg_6. Accessed 7 July 2014 Sadek G (2013) The role of Islamic law in Tunisia’s constitution and legislation post-Arab spring. Libr Congr. https://www.loc.gov/law/help/role-of-islamic-law/tunisia-constitution.php. Accessed 27 May 2014 Sickinghe E (2013) The Egyptian constitution: looking beyond seasonal forecasts. ArabsThink. http://arabsthink.com/2013/02/05/the-egyptian-constitution-looking-beyond-seasonalforec. Accessed 8 Aug 2014 Zeghal M (2014) Uprising in Egypt: the power of a new political imagination. http://blogs.ssrc.org/ tif/2011/02/22/the-power-of-a-new-political-imagination/5/13/2014. Accessed 7 July 2014

Constitutional Exception as the Basis for Security Sector Reform in Timor-Leste Ricardo Sousa da Cunha

Abstract The current legal regime on national security in Timor-Leste is based on the response given to situations of Constitutional exception. After the restoration of the independence in 2002, the crises of 2006 and 2008 led to the creation of joint military and police taskforces. The lessons then learned shaped the legal regimes for the organization, development and engagement of the military and security Forces, as much as traditional doctrine on national security. The legal reform of 2010 was tested by Operation “Hanita” in 2015 and led to the approval of the Strategic Concept on National Defence and Security in 2016. There are still many challenges in the implementation of these legal regimes, which are now the building blocks of a system of Defence and Police Forces under the Rule of Law in times of peace.

1 Introduction It is ironic that this Symposium on Constitutionalism under Extreme Circumstances, where many papers turn to the problems arising from military interventions in constitutional regimes, takes place precisely under the consequences of a military intervention in Turkey after a supposed failed coup. The pessimistic outlook when dealing with military interventions throughout the world is the result of the authoritative regimes, in some cases the dictatorial, implemented. Presently difficult processes of democratization after military interventions take place not only in Egypt, but also in Myanmar, Thailand and still in The Salomon Islands and elsewhere in the world.1 The power of the military is still very much felt in modern societies, even

1 See in this volume Manar Mahmoud, Constitution-Making, Political Transition and Reconciliation in Tunisia and Egypt: A Comparative Perspective.

R. S. da Cunha (B) Law School, UMinho, Braga, Portugal e-mail: [email protected] Law Department, IPCA, Braga, Portugal © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_23

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democratic ones, as Eisenhower alerted in his Farewell Address to the weight of the “military-industrial complex”. Not all examples are negative, however. In Portugal, the democratic transition was prompted by the military coup of 25 April 1974. After 48 years of dictatorship, and more than a decade of a disastrous colonial war, a military coup initiated the transition to a modern, democratic regime under the rule of law. After some years of political unrest, the militaries withdrew to the barracks and allowed the political process to take its normal course. The first elected President was a former General, and the process was not always easy—at one point the military exercised full power over the country, even judicial control of the constitutionality of the laws. However, the constitutional amendment of 1982 allowed for a smoother transition that culminated with the full membership of the EU in 1986 and led to a functioning democracy.2 Timor-Leste, a former Portuguese colony in Southeast Asia, is another example where the weight of the military is still largely felt. In Timor-Leste, the role of the military is the heritage of the 24 years of a military struggle for national liberation (together with the diplomatic and the clandestine fronts) against the violent occupation of Indonesia, from 1975 to 1999. Following the same military coup in Portugal, that allowed for the referred transition to democracy, a plan for decolonization was devised between Portuguese authorities and emerging Timorese authorities, including national political parties. Before that plan could be put into action, Indonesia unlawfully invaded Timor-Leste, with the (at least tacit) support of the USA and Australia. Domestic unrest in Timor-Leste (which covert Indonesian operations had promoted) was invoked as a reason for the invasion branding the fear of a communist government in Timor-Leste, in times of high tension during the Cold War.3 The UN and the international community never legally recognized the annexation of Timor-Leste by Indonesia, apart from Australia. The only de jure recognition of Indonesian rule in Timor-Leste by Australia had in mind the need for an agreement on the delimitation of the maritime border to allow the exploitation of the rich natural resources (oil and gas) of the Timor Sea. Mounting international pressure, especially after the 1992 Santa Cruz massacre, led to the signing of the international agreement between Portugal (the de jure administration power of a territory in the process of decolonization) and Indonesia (the de facto occupying power),4 under the auspices of the UN, which paved the way for the referendum on the exercise of self-determination by the Timorese people of 30 August 1999.5 The overwhelming majority of Timorese voted for independence and, after brief episodes of violence during the withdrawal of the Indonesian forces (promoting 2 On

the large bibliography on the matter vide Pinto (2005: 83 et ff) and Rezola (2012: 83 et ff).

3 On the vast bibliography on the matter vide the Nobel Peace Prize laureate’s, Ramos-Horta (1987:

1 et ff). 4 Agreement

between the Republic of Indonesia and the Portuguese Republic on the question of East Timor, signed in New York, 5 May 1999, 2062 UNTS 39. 5 On the legal basis for the exercise of the Timorese people’s right to self-determination vide Teles (1996: 215).

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violence of civilian militia), a military peacekeeping intervention was led by the UN (INTERFET—International Force East Timor-under the authority of UNSC Resolution n.° 1264 (1999)) aimed at creating the necessary conditions to promote the safe transition to independence. The UN created UNTAET (United Nations Transitional Administration in East Timor) by UNSC Resolution 1272 (1999), which assumed full power over the territory of Timor-Leste during this period, under the Transitional Administrator, Sérgio Vieira de Melo.6 The independence, declared on 28 November 1975, was declared “reinstated” on the 20.th May 2002.7 During the Timorese transition to independence and democracy, many, including foreign diplomats and staff with the UN Administration, pressured the new country to abdicate its armed forces. An independent study was asked of the King’s College to highlight the options for the security sector reform and the winning option led to the transformation of the guerrilla force (the FALINTIL) into a modern Defence Forces (the FDTL) creating the FALINTIL—Forças de Defesa de Timor-Leste.8 In 2006, a political crisis led to a conflict between the Armed Forces and the Police Forces, which culminated in the death of 10 members of the Police Forces and the flight of most of its members, prompting a new UN mission—the United Nations Mission in Timor-Leste (UNMIT—United Nations Mission to Timor-Leste—created by UN SC Resolution 1704 (2006) of 25 August 2006). The reasons are deeper than the apparently obvious clash between the two branches of the security forces with the monopoly for the use of force and include the continued dispute between the main forces of the resistance to the Indonesian occupation. From 2006 to 2008, a small group of rebels challenged the authority of the State, spreading unrest all over the territory and evading capture by the local police and the international military forces present in the territory. However, their actions were put to rest by a joint action of the national Defence Forces and the Police after an alleged attempt on the life of the President and the Prime Minister on 11 February 2008.9 It was the response to this crisis that first established the system of governance on the National Security, which was later enshrined into the legislative reform of 2010 and is today still in place, as a system of “National Security” regulating the conditions and modalities of operational engagement of the military and the police in situations that do not determine the declaration of any of the types of constitutional exception allowed by the Constitution. The relevance of this system was recently confirmed by its use in the implementation of the measures to fight the COVID19 pandemic, with

6 UN

missions in TL included a follow-up mission from 20/05/2005 to 20/05/2005 and, following the crisis of 2006, a new UNMIT mission created by UN SC Resolution 1704 (2006) of 25 August 2006. 7 The Constitution refers to “restauration of the declaration of independence”, which is not without consequences: on the one hand, this aims to indicate to the illegality of the occupation, annulling all acts during this period (which was not the case, v. g., on the succession of legal regimes); on the other hand, it aimed to perpetuate the political project of the Democratic Republic of Timor-Leste unilaterally declared by the FRETILIN in 1975, which has still been the source of political conflict. 8 MOD (2006: 68) and Sim˜ oes (2012: 1 et ff). 9 Molnar (2009: 135 et ff).

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the creation of a dedicated Situation Room, by the Diploma of the Prime-Minister n.º 14/2020, of 31 March.

2 The National Security of Timor-Leste All States have the right and the obligation to protect their essential elements: the integrity, control and sovereignty over their territory, the autonomy of their political power and the security of their citizens. Art. 6.° of the Constitution of the Democratic Republic of Timor-Leste sets out this aim as an objective of the State “to defend and ensure the sovereignty of the country”. The definition of “Security” is, however, today much more difficult to enunciate than this Constitutional provision.

2.1 The Evolving Concept of National Security Security, in a broader sense, is no longer only the absence of war. Security increasingly implies the existence of conditions to ensure the sustainable and harmonious development of the populations, since the sources of conflict are more and more rooted in socioeconomic conditions of poverty and the unjust distribution of wealth. The concept of human security considers every dimension of human security.10 The security of the State is also increasingly undermined by threats that are transnational, asymmetrical and multidirectional. This is the result promoted by globalization as the technological development facilitates communication and movement of people, goods and information on a planetary scale. New threats are also the result of the abundant resources currently at the hand of transnational criminal networks, as much as at the service of ideological or political objectives and economic interests. These threats are not military in nature and range from air and maritime piracy, organised crime with links to international terrorism, drug trafficking, smuggling of goods, human trafficking, illegal fishing and the exploitation of seabed resource, imposing an increasingly integrated intervention of all the resources available to the State. Only in a very narrow sense, can “security” be referred to the absence of conflict with regard to the intervention of armed and security forces. Even this stricter sense of security can no longer simply rely on the traditional distinction between Defence Forces, that protect against external threats, and Security forces, that protect against internal threats. All the means of the State, citizens and resources are invested in ensuring the overall security of the population, considering the increasing complexity of the threats. Therefore, defence and security forces no longer participate only in their main activities but integrate the efforts of the 10 Vide

the UNDP (1994: 22 et ff).

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State in order to ensure homeland security, assist the populations and promote wellbeing, justice and security as primary aims of the State, as threats to the security of States are increasingly diffuse in their origin. The relevance of the terrorist threat in recent years in Western societies has revealed exactly how external and internal forces collude to fight for a violent change to a determined constitutional order. Terrorism is characterized by the special intentionality to change the constitutional order using human resources, materials and funding that are both internal and external. The growing scarcity of resources in many societies implies that the public investment in defence and security is increasingly integrated, looking for capacities with “dual-use”, civilian and military. This principle of complementarity, or “dual-use”, imposed both by the changing threats to the strategic environment and the need to rationalise the resources, has had a domestic and international perspective. Internationally, it is widely accepted that no State can alonely ensure its security and should share these resources at the local, regional and global level. The relevance of bilateral, regional and global security arrangements is nowadays paramount for collective security. In the case of Timor-Leste, it has impsed the participation in the collective security system of the United Nations and the military cooperation agreements in the CPLP (Community of Portuguese-Speaking Countries), the ASEAN meetings and the many bilateral partnerships with Portugal, Australia, China and the US. The security of all States is nowadays referred to the concept of Cooperative Security, since no country is able to ensure full security alone, which can also no longer be considered as the absence of conflict, but requires the active promotion of security in the relationship between Peoples for the prevention and peaceful resolution of conflicts in different international forums, informal structures, international organizations, regional or global policy coordination instruments bilateral or multilateral in nature. In this context, the security and defence forces are increasingly asked to support the foreign policy of the State by participating in peace-keeping missions in the framework of international organizations, like the UN. Despite the diminished resources available to them, Timorese engineering forces were part of the Portuguese deployment of an engineering unit that participated in UNIFIL (United Nations Interim Force in Lebanon, created under the auspices of UNSC Resolutions 425 (1978) and 426 (1978), of 19 March 1978, and UN SC Resolution 1701 (2006), of 11 August 2006). Domestically, the principle of complementarity determines that, within their legal and constitutional framework, the military are asked to support civilian authorities in carrying out their duties, as all civilians may be asked to participate in all necessary activities of National Defence. The missions of military and civilian cooperation (CIMIC missions) are one of the most relevant lessons learned in recent years. In Timor-Leste, for instance, the capabilities of the “aerial component” (the embrionary Air Force) can also be assigned to rescue missions at sea or patient transport, military engineering can also be put to the service of the people affected by natural disasters and the naval component’s resources will to be applied in the surveillance of waters under national jurisdiction in the prevention and repression of illegal activities, such as piracy or the trafficking in human beings. The question is now debated

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on the role of the Naval Component and the Military Police in the framework of the Maritime Authority. The wiser use of the limited resources of a small State like Timor-Leste would advise against creating two competing naval forces—one in the Defence Forces, another in the Police forces. However, this idea is not always easily accepted by the competing forces with different sources of authority, moreover so when both are fed by international pressure in a strategically important small island state as is the case of Timor-Leste. The principle of complementarily also determines that all civilian resources can be put at use for the National Defence (hence allowing for conscription systems in case of war) and, in this sense, also the resources of the security forces and civil protection can be involved in the defence against any external threats to the security of the State.

2.2 National Security in Timor-Leste The particular conditions of Timor-Leste determine very special circumstances in matters of national security. Timor-Leste has a population just over one million and one hundred thousand inhabitants11 living in the eastern part of the island of Timor, the largest of the Sonda Islands. The territory is about 480 km long and 105 km wide, with a total surface area of 32,350 km2 a land border with Indonesia (province of Nusa Tenggara Timur) to the West and along the border with Oe-Cusse Ambeno, with a total of 220 km. The coastline is 700 km long, with territorial waters of 16,000 km2 and an area of the Exclusive Economic Zone (EEZ) of 75,000 km2 . To the Northwest, it is bordered by the Savu Sea, which separates Timor from the islands of Alor, Sumba and Flores, by the Strait of Ombai and to the North by the Sea of Wetar, which separates it from the island of the same name. To the South, Timor-Leste is bathed by the Timor Sea, which separates it from Australia by about 430 km. The traditional social structure in Timor-Leste was highly fragmented into “Kingdoms”, which the Portuguese colonization unified in spite of some cases of uprising. The Portuguese colonization is the historical ballast that justifies the construction, under the western and modern concept of a sovereign nation-state, of a national identity built on a sociological reality different from the “Other”.12 The role of the colonial Portuguese rule had a limited colonial administration, more religious than military, but was largely based on pre-existing traditional social structures, therefore, always a foreigner (“malae” in the tétun language). One of the most important milestones of this identity construction in relation to the “other” was the local resistance against the Japanese invasion in World War II and the “black columns” largely composed of elements from the other half of the island of Timor, little supported externally by the

11 Results

from the Census 2015 available in http://www.statistics.gov.tl/category/publications/cen sus-publications, last accessed in 24 January 2017. 12 Schmitt (1932: 27). In Timor-Leste vide da Cunha, Press (2010a: 10 et ff).

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neutral Portuguese colonial forces or by the Australian forces of the Allies.13 The same is said to have happened in reaction to the violent Indonesian occupation, which strengthened the ties of national identity already built against the colonial presence largely around the undeniable weight of the religious catholic heritage. The violence of the foreign occupation, at times close to genocidal, is still the main trait of national identity leading to the “restoration”, in 20 May of 2002, of independence declared in 28.th November 1975, on the eve of the Indonesian invasion. The weight of the relation to the “other” is, in Timor-Leste, decisive to the point of reinventing the national founding myth of the Timorese national identity—the boy on the back of a crocodile that voluntarily turns into land to give shelter to the child, in the tale of Luis Cardoso, grows up to become a fighter for the guerrilla.14

2.3 The Geostrategic Position of Timor-Leste Timor-Leste enjoys a privileged geostrategic location at the confluence of the Indian and the Pacific Oceans, dividing these two Oceans with its territory—the North coast is bathed by the Indian Ocean and the South coast by the Pacific Ocean. The territory of Timor-Leste marks the end of the passage between these two of the major oceans of the planet, initiated by the Strait of Malacca. The control of this passage has historically justified the appetites of colonial Portuguese presence, as well as those of the Japanese imperialism in World War II, and was at the heart of the geostrategic decision of the Indonesian invasion of 1975. This important geostrategic position is today still decisive. Militarily control over maritime lines is crucial at a time when the orientation of the great world powers refocuses on Asia and the new US geostrategic concept is aimed at containing Chinese economic and military power.15 This territorial position is combined with a deep depression in the ocean floor of the North shore, between the capital Díli and the island of Ataúro, which, together with the size of the island itself, conceals submarine military forces. In civilian terms, this passage is also important for the Sea Lines of Communication (SLOC) with a fundamental importance to shipping lines of global trade. Timor-Leste is located between two dominant countries in the region: Australia and Indonesia. Indonesian territorial continuity was threatened by the restoration of Timorese independence, but both countries have endured democratization processes hand in hand. Australia also projects in Timor-Leste many of its national security considerations, among others, the concerns with the flows migrants and refugees from Central Asia to the insular territory of Australia.

13 Mendes

(2005: 144 et ff). (1994: 1 et ff). 15 The US National Security Strategy (2015: 1 et ff). 14 Cardoso

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From the Australian perspective Timor-Leste integrates an arch of small islandnations in Southeast Asia, which protect the Continent-island from external threats. The stability/instability of these small island-States of Southeast Asia is therefore a factor for the national security of Australia, as the invasion of (then) Portuguese Timor-Leste by both Australian and Japanese forces in World War II painfully illustrated. Many issues remain unresolved in the bilateral relations between the two neighbouring States. The demarcation of the maritime boundary between Australia and Indonesia in 1972 followed the natural extension of the Australian continental shelf. This agreement was the basis for Australian support of Indonesia annexation of Timor-Leste and was used to boost the international credibility of the authoritarian regime of Suharto. However, international law moved from this position, since the United Nations Convention on the Law of the Sea (UNCLOS) was signed in Montego Bay, in 1982, with prejudice to the maritime jurisdiction of Indonesia. The argument on the natural prolongation of the continental shelf was always refused by Portugal and by the succeeding Timorese authorities for the delimitation of de maritime border at the Timor Gap. The parties reached an agreement under the procedure of compulsory arbitration initiated by Timor-Leste at the Permanent Court of Arbitration, at The Hague, under the UNCLOS. Timor-Leste and Australia signed in New York, at the UN Headquarters, a new Maritime Boundary Agreement, on 6 March 2018. The delimitation of the maritime borders between Timor-Leste and Australia is decisive for the exploration of the rich seabed mineral resources, particularly oil and gas. The terms for the exploration of the seabed will also be part of the agreement between the two countries and shall include private investors, particularly interested in the dispute over the place for the establishment of the downstream sector, most relevant the refineries and the necessary pipeline. The delimitation of the maritime border at the Timor Sea has had relevance at the global level as well, since it has the potential to influence the delimitation of maritime borders in Southeast Asia, in particular regarding the dispute between China, the Philippines and other States in the South China Sea. Both these disputes highlight the relevance of energy policies in the definition of national security conditions, in the case of Timor-Leste moreover so considering the importance of the exploitation of natural resources.

3 The Integration of the National Security from Practice to the Law The growing integration of the functions of defence and security is evident in TimorLeste. The interpretation of the separation of competences of the Defence Forces and the Police was one of the reasons at the heart of the 2006 crisis. A strict interpretation of art. 146.° of the Constitution would limit the intervention of the Defence Forces to the military defence of national sovereignty, whereas the same reading of art.

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147.° would limit the intervention of Police Forces to the internal security. This interpretation is refused by the textual formulation of the principle of the exclusivity of the military function in art. 146.°, which establishes the exclusive competence of the Defence Forces for the military defence of the State but does not limit them to that sole military function. The involvement of the Defence Forces in the overall national defence is contemporarily imposed by the aforementioned evolution of the concept of national security, which 16 in Timor-Leste, has been recognized by the Organic Statute of the PNTL (DL n.° 9/2009, of 18 February) that characterized the Police as having nature “similar to the military”.

3.1 The Practice in the Recent History of Timor-Leste The overcoming of the 2006 crisis, in particular, the conflicts between Defence Forces and Police Forces, was only possible in 2008 in response to a new threat to the organs of the State caused by the same group of military rebels. This group allegedly attacked the President of the Republic and the Prime-Minister on 11 February 2008, which led to the death of its leader and the flight of the rest of its members to the mountains. In light of the seriousness of the situation there was the Declaration of a State of Siege and a “joint command between the F-FDTL and PNTL” was created for “Operation HALIBUR” by Government Resolution n.° 3/2008, of 17 February. At the time the F-FDTL and PNTL kept their respective legal regimes, but both were ordered to implement the necessary security operations aimed at restoring democratic normality, under the authority of the constitutional regime on State of Siege according to art. 25.°, n.° 6 of the Constitution. Law n.° 1/2008, of 11 February, authorized the PR to declare a State of Siege,17 which took place by the Decree of the PR n° 43/2008, of 11 February (adopted by the interim PR, the President of the PN). The State of Siege was declared throughout the national territory for a period of 48 hours with the suspension of the exercise of the fundamental rights to free movement (with a curfew between the 20:00 and 6:00 h), assembly and demonstration. Over this period, Law n.° 2/2008, of 13 February, authorized the PR to renew the Declaration of a State of Siege, which was declared by Decree of PR n° 44/2008, of 13 February, throughout all of the national territory. This time it was declared for a period of 10 days, suspending the right to free movement (with a curfew between the 20:00 and 6:00 h) and the right to assembly and demonstration. At the end of this period, the interim PR renewed emergency rule by Decree of the PR No 45/2008, of 22 February (authorized by law No 4/2008 of 22 February), for a period of 30 days in the whole national territory, with suspension of the right of free movement (curfew between the 22:00 16 In

this sense AAVV (2011: 457 et ff). constitutional exception see in this volume Ming-Sung Kuo, From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization.

17 On

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and 6:00 h) the right of expression and to assembly and the right to inviolability of domicile, allowing for house searches at night without prior judicial order. The circumstances at the end of this period determined, once again, the need for its renewal, by the Law n.° 5/2008, of 20 March, which authorized the PR to renew the Declaration of a State of Siege, but limited to the districts of Aileu, Ermera, Bobonaro, Covalima, Ainaro, Liquica and Manufahi, and declarethe State of Emergency in the districts of Baucau, Manatuto, Viqueque and Lautem. The Decree of the PR n.° 48/2008, of 20 March, renewed the State of Siege in these districts and declared a State of Emergency in the districts of Baucau, Lautem, Manatuto, Viqueque and Dili, with the exception of the subdistrict of Ataúro, for a period of 30 days. During the State of Siege, in each respective district, the suspension of the exercise of the right of free movement (imposing a curfew) and of the rights of expression and assembly and the right to inviolability of the home, allowing for house searches at night, with prior court order. For the districts in which the State of Emergency was declared, the exercise of the right of free movement was suspended (with a curfew between the 23:00 and 5:00 h), the right to demonstration and assembly and the right to inviolability of the home, allowing for house searches at night, with prior court order. The regime of renewal of the State of Siege and State of Emergency, in different districts, influenced Law n.° 3/2008, of 22 February, which approves the regime of the State of Siege and State of Emergency. Although publication coincides with the date of the third law of authorizing the renewal of the Declaration of a State of Siege, this law had not yet entered into force on that date. During this period, the F-FDTL and PNTL forces based the implementation of security operations, including the measures necessary to restore democratic normality, directly on paragraph 6 of art. 25.° of the Constitution. This was the historic example, highlighted in the Decree of the PR n.° 49/2008, of 22 April, and in the Decree of the PR n.° 52/2008, of 14 May, that came to be enshrined as the integrated exercise of functions of national security in the National Security Law (Law n.o 2/2010, of April 21).

3.2 The Joint Operation Engagement of Defence and Security Forces The joint operational engagement of the F-FDTL and the PNTL was designed to face the threats that each of the forces cannot solve on their own, but that are not sufficiently grave to justify the declaration of any of the terms of constitutional exception, as was the case of 2008. This interpretation determines the revocation, at least tacitly of the provisions regarding

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the “State of Crisis” in articles 18.°,19.°, 20.°, 21.°, 22.° and 24.° of DecreeLaw n.° 7/2004, of 5 April (organic of FALINTIL-FDTL), which had already been partially repealed by Decree-Law n.° 15/2006, of 8 November. This option also had an impact in the organization of the IV Constitutional Government (DL n.° 7/2007, of 5 September), which established the Ministry of Defence and Security. The unification of the political oversight over the Defence Forces and the Police was not continued by the V Constitutional Government (2012) and VI Constitutional Government (2015), which had separate Defence and Interior Ministries, but was again followed by the VII Constitutional Government in 2017. Similarly, the success of this operation was highlighted in the Decree of the PR n.° 49/2008, of 22 April, and the Decree of the PR n.° 52/2008 of 14 May, whereby the integrated exercise of functions of National Defence and Security by Operation Halibur was complimented. These Presidential Decrees and the evaluation of Operation Halibur were the basis for the legal reform of the security sector in Timor-Leste, under the National Security Law (Law n.° 2/2010, of April 21). This is an integrated perspective of National Security which is in line with the Constitutional objectives of the State stated in art. 6.° a) of CRDTL, based on the concept of Homeland Security.

3.3 The Legal Context The design of the requirements for the joint engagement of the Defence and Security Forces in Timor-Leste obeys a strict legal regime, increasingly complex, with international, constitutional and legal origin.

3.3.1

The International Law Context

In Ancient Rome, Cicero’s traditional aphorism stated that “laws are silent among armies”, which later evolved to the quest, with St. Augustine and St. Thomas Aquinas, for the “right intention” of the sovereign in declaring war. With the emergence of Classical International Law, most notably between the sixteenth and nineteenth centuries, few would still be the constraints to the use of force between sovereign States. In the XIX century, elementary rules on the conduct of war [ius in bello] began to emerge in order to limit human suffering to the minimum necessary in periods of armed conflict, international or domestic. Special reference should be made to the Geneva Conventions, which after 1863 marked the birth of international humanitarian law, referring to the treatment of those wounded on the battlefield. Historically, The Hague Conventions of 1899 and the most recent Geneva Conventions of 1949 governing the conduct of war and the treatment of civilians, prisoners and wounded, developed this legal regime. This international normative framework governing the conduct of war is constantly evolving, as evidenced by the recent limitation of the use of certain

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weapons by the Geneva Convention of 2001 and the various additional protocols adopted, most recent in 2000 on the treatment of children. The essence of these norms, particularly the “elementary considerations of humanity”, has long seemed to have acquired the status of a peremptory norm of international law (ius cogens),18 under art. 53.° of the Vienna Convention on the Law of Treaties, in particular in the light of the jurisprudence of the International Court of Justice in the case of the “Corfu Channel” of 1949.19 In the same sense, International Law has sought to limit and legitimize the use of war in international relations, the traditional ius ad bellum. Especially at the end of World War I (“the war to end all wars” such as the violence of the fighting), there was a renewed impulse to discipline the use of force in the relations between sovereign states. The technological development of warfare during the twentieth century made war highly undesirable to the point of threatening human survival on the planet. Therefore, there has been a movement during the twentieth century to the progressive limitation of the use of force in relations between States. In particular, art. 10.° the Pact of the League of Nations aimed at prohibiting the War of Aggression and the Briand-Kellogg Pact, between France and the United States, was signed by States wishing to “renounce war”.

3.3.2

The System of Collective Security in the UN Charter

None of these efforts succeeded in avoiding the barbarity of World War II and only at its end the Charter of the United Nations established the principle of the prohibition of the use of force between States. Article 2 (4) of the UN Charter states: “Members shall refrain in their international relations from resorting to the threat or use of force, whether against the territorial integrity or political independence of a State, or in any other way incompatible with the objectives of the United Nations.”. This is the general prohibition of the use and threat of the use of force in international relations, which, in view of the universal UN membership, certain authors refer to having acquired the nature of peremptory norm [ius cogens], under the terms of art. 53.° of the Vienna Convention on the Law of Treaties. More recently, the provision of the Rome Statute, which establishes the International Criminal Court, and which criminalizes individual conduct of the War of Aggression, has reinforced this norm of international law. However, the difficulty in defining this type of crime led to the casuistic application by the UN Security Council. The UN Charter enshrined a system of “Collective Security” that obliged States to exhaust all conciliatory channels before recourse to war. Peacekeeping on a global scale thus is no longer simply a bilateral issue but it is to be dealt with in a multilateral forum. In this sense, Chap. 7 of the Charter of the UN regulates the collective exercise of security, in particular by attaching important prerogatives to the UN Security Council and concentrating the monopoly of the legitimate use of force on the United 18 On 19 ICJ

the subject vide Green (2011: 215). Reports (1949: 22).

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Nations. Thus, it is enshrined in art. 41 (f) of the UN Charter, the possibility for the UN Security Council to determine the existence of a “threat to global peace and stability” by imposing on States certain conducts aimed at restoring the disturbed order. These measures are mandatory (art. 25 and 103) and may include the use of force—this was the case of the first Iraq War of 1991 characterized by Danilo Zolo as the “first Cosmopolitan War”.20 However, this multilateral system of collective security does not exclude the possibility of each of the sovereign States exercising the “Right of Self-Defense” to deal with a present or eminent threat under art. 51 of the Charter. This last prerogative is strictly regulated and always subject to the principle of proportionality. The recent international phenomenological reality, tragically marked by the events of 11.09.2001, opened the door to a profound change in terms of the exercise of the “collective security” system, now said to be “cooperative”, in particular, the possibility of exercising the right to legitimate self-defense against a threat caused by non-state entities (as was the case of Al Quaeda), although indirectly involved State entities (as in the case of the sovereign state of Afghanistan). More problematic would always be the proposal to allow the exercise of preventive “Legitimate Defense” to account for threats that are not yet existent or eminent. The construction of this principle of international law, under which certain Authors intended to legitimize the conduct of the 2004 Iraq War, seems difficult to accept in the face of the text of art. 51 of the UN Charter. The customary formulation of such principle will always find the material limits of a “repeated practice” incompatible with the formation of an instantaneous customary rule.21 The international regulation of the law of war, both as regards ius ad bellum and ius in bello, is the defining framework that Timor-Leste joined on independence.

3.3.3

Constitutional and Legal Provisions in Timor-Leste

Art. 146.° of the Constitution of Timor-Leste enshrines the principle of exclusivity of military function to the F-FDTL. This principles states that only the F-FDTL may exercise the military function on behalf of the State of Timor-Leste. However, the uniqueness of the competences of the Defence Forces does not prohibit other forms of use for the F-FDTL. On the contrary, the aforementioned reality increasingly imposes such uses in CIMIC missions. Regarding security forces, under to art. 147.° of the Constitution, “The police forces defend the democratic legality and guarantee the internal security of populations”, which, however, does also not bar them from carrying out non-military functions of National Defence. Again, this is the only reading compatible with a constitutional answer to the reality of integrated fight against globalized and complex threats to National Security.

20 Zolo

(1997: 169). (2010: 241).

21 Cunha

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Art. 1.° of the National Security Law (Law n.° 2/2010, of 21 April), therefore, establishes a functional perspective of National Security with reference to a set of activities of the State that are involved in the defence and security of TimorLeste. More than to define national security matters for the State, it is fundamental to best know how to integrate their resources to this effect, which determines the references in the LSN to the integrated system of national security. The modalities of joint operational engagement of the F-FDTL and PNTL provided by the National Security Law are the lessons learned by the response to the crisis of 2008 and today are considered the best answer to the threats to the security of States, increasingly complex, as is the case of highly organized crime. This is the consequence of adopting a broader concept of National Security, combining the actions of the military component (military defence) and non-military components (civil defence). In this sense, the military support of civilian missions is constitutional and can be politically and legally decided under the Integrated System of National Security (SISN).

4 The Integrated National Security System The SISN imposes an integrated approach to the activities of National Security, which allows for a double use of military and police forces. On the one hand, all of the forces involved have the obligation to develop their capacities in such a manner that facilitates their interaction under the substantive legal regime for combined employment. On the other hand, the law establishes an organic structure of coordination of the shared engagement of forces—the SISN. However, rather than devalue any of the functions of the State, under this new concept it is necessary to enhance the capabilities of each of the forces to participate in the SISN, ensuring, in particular, the development of CIMIC capacities in an integrated interpretation of the exercise of the functions of the State in matters of defence and security.

4.1 Principles The SISN is designed to operate when both military and police forces are confronted with situations that, falling within their constitutional and legal competencies, each of the forces is unable to face alone. The SISN is designed for those situations that are insufficiently serious to justify the declaration of any of the modalities of constitutional exception of State of Siege or State of Emergency, which have their own constitutional legal framework, but may also be used in these situations. In the cases, v.g. public demonstrations, riots or natural catastrophes, the fundamental principle for their operation is the principle of subsidiarity and complementarity, under art. 4.° of the National Security Law (Law n.° 2/2010, of 21 April). That is the consequence of the non-strictly military powers of the F-FDTL, as well as for

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the participation of the PNTL in National Defence activities. This principle means that the military and police forces are only called to support the actions of each other when either is unable to carry out its main function. The decision for the operational engagement of the military and the security forces under the SISN is placed at the political level, involving both the Government and the President of the Republic. The National Parliament is only called upon when it is necessary to declare a case of Constitutional exception (State of Emergency or State of Siege). The action of all these entities is also subject to the strict enforcement of the principle of proportionality, which, in spite of not being expressly in the CRDTL, is a direct consequence of the principle of the rule of law (art. 1.° of the Constitution). This principle of proportionality is particularly relevant with regard to the operational engagement of the forces to ensure the legal and political control in the case of the use or threat of use of force by the definition of the “Rules of Engagement” (ROE) to be approved by the President of the Republic. The PR, therefore, is always called upon to decide on the operational engagement of the F-FDTL, as the Commander-inChief. This is an interesting trait the Timorese Semipresidentialism,22 which demands further consideration.

4.2 The F-FDTL Operational Engagement Under art. 11.° of the National Defence Law (Law n.° 3/2010 of 21 April), each of the organs of sovereignty exercise their powers in the field of national defence under the Constitution, the Law and other legislation in force. The distribution of powers over the armed forces is not always easy, in particular, in Timor-Leste. The PR is the Supreme Commander of the Armed Forces, pursuant to art. 74.°, n.° 2, and art. 85.° (b)). In addition to other competences, provided for in art. 74.°, n.° 2 of the Constitution, the President of the Republic, as Supreme Commander: (a) authorizes any form of operational engagement of F-FDTL, either independently or as part of the SISN, under art. 14.°, n.° 2 (b) and c) of the National Defence Law and art. 25.° of the National Security Law; (b) ratifies the rules of engagement, defined for the operation, when the use of force is allowed, in accordance with art. 14, n.° 2 (c) of the National Defence Act. In both cases, the approval of the ROE is the initiative of the Member of Government responsible for national defence, setting in clear terms the mission for which the military leaders can give the order of operations and rules of engagement, subject to political approval by the Council of Ministers and Presidential ratification. In the case of joint operational engagement with the security forces, under the integrated system of national security, clear provisions for “command and control” should also be enacted, encompassing, if necessary, the terms of the joint

22 Vasconcelos/

da Cunha (2009: 231 et ff).

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command. Pursuant to art. 14.°, n.° 2 and) of the National Defence Law, the President of the Republic is informed throughout the process, as Commander-in-Chief of F-FDTL, and has the right to consult directly the General-Chief (CEMGFA) or whoever his substitute is. The question of the separations of the powers of civilian oversight over the military between the President and the Government has been one of the most complex to solve. On the one hand, the President is the Commander-in-Chief of the Armed Forces (art. 74.°, n.° 2 of the Constitution) taking command and control over the military in case of war. On the other hand, the Armed Forces are part of the Government, particularly for administrative purposes. The question arose again more recently regarding the appointment of the General-Chief (CEMGFA). The divergence over the names appointed between the President and the Government was settled with a change in the law (by DL n.° 28/2016, of 13 July, the 1.st change to DL n.° 7/2014, of 12 March, on the Legal Statute of the Military of the F-FDTL). The solution for the security sector legal reform under analysis was mostly concerned with the operational engagement of the forces before the declaration of constitutional exception or the declaration of war and, even though the balance struck between the PR and the Government was not the one preferred by President Ramos-Horta at the time, the law was eventually promulgated.

4.3 The Implementation Under Operation HANITA Besides the original Operation “HALIBUR” that inspired the legal regime in force, other joint operations implemented this same normative system. Operation “HANITA” constituted a taskforce composed by members of the F-FDTL and the PNTL by the Resolution of the Council of Ministers n.° 11/2015, of 10 April, aimed at dealing with the escalation of violence from a group of former guerrilla members and to fulfil the judicial orders for the capture. This Joint Operation was subject to the ROE “approved” by Government Resolution n.° 12/2015, of 18 March, and “ratified” by Decree of the PR n.° 41/2015, of 18 March, pursuant to art. 74.°, n.° 2 and art. 85 (c) of the Constitution and art. 14.° of the National Defence Law (Law no. 3/2010, of 21April). The ROE aimed to legally and politically discipline the use of force by the taskforce. The ROE established the different degrees of intensity of use of force (from minimum force to lethal force) and the competence to authorize each of them. The actual ROE were not publicized with the competent Government Resolution and the Presidential Decree for security reasons in order to protect the forces on the ground. However, one may assume that for this type of mission only the minimum use of the force was authorized to fulfil the mission of the taskforce as well as to avoid any interference in the performance of the mission. The question of the limits of the use of force by the taskforce under ROE is very delicate. On the one hand, the ROE can never limit the right to self-protection of the force in case of attack, which would defeat the purpose of the taskforce itself. On

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the other hand, the ROE do not invalidate the legislation in force in Timor-Leste, which violation may constitute a disciplinary and criminal offense. The individual violations of the ROE, however, cannot prevent the fulfilment of the mission for which the taskforce was established. In all these cases, the most important principle in the implementation of the ROE is the principle of proportionality —using the least intrusive measure for the rights of citizens to achieve a goal. Protecting citizens not involved in operations, their life, freedom and property is the guiding principle of the actions of the taskforce as one of the foundations of the principle of the Rule of Law (art. 1.° of the Constitution), after all, the reason for its existence.

5 Conclusion The reform of the Security Sector in Timor-Leste has been shaped as much by doctrine as by its rich Constitutional reality, before and after the restoration of independence. The long military tradition of the struggle for national liberation led to the conversion of a guerrilla force into a modern army in the context of a sovereign democratic country. This path was not easy and still faces many challenges, but the civil oversight over the military under the rule of law is more and more a reality in Timor-Leste. After the restoration of the declaration of independence in 2002, the crisis of 2006–2008 presented real challenges to a young nation still building the structures of the State. These challenges could have proven fatal.23 Fortunately, they were not and were able to shape the legal regime for the development and engagement of the military and security Forces under the legal reform of 2010, by Law n.° 2/2010, of 21 April (National Security Law), Law n.° 3/2010, of 21 April (National Defence Law) and Law n.° 4/2010, of 21 April (Internal Security Law). The operational engagement of the military has been restricted by the legal reform of 2010 and demands the intervention and accord of both the Government and the President, as Commander-in-Chief. The strict limitation of the intervention in support of the security forces has also been clearly defined in the same laws under the Integrated System of National Security. The continued development of the Military and the Security Forces is now framed by the Strategic Concept of National Defence and Security (Government Resolution n.° 43/2016, of 14 December), which more clearly defines the missions and capacities of each of the Forces and of the other services of the State involved in National Security matters. The CEDSN was negotiated between the Government, the National Parliament and the President of the Republic and is aimed at defining the (international and domestic) environment of National Security and at enunciating the strategic actions that all of the institutions of the State must adopt for National

23 David

Webster, “Failing Fragile States: Canada and East Timor” in Michael K. Carroll and Greg Donaghy From Kinshasa to Kandahar: Canada and Fragile States in Historical Perspective, University of Calgary Press (2016: 73 et ff).

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Security purposes, with obvious special reference to the National Defence and Security institutions. Naturally, a long way is still to be done. Lacking is still the organic implementation of the SISN (Integrated System of National Security), as well as the negotiation, drafting and approval of the Laws on Military Programming for the equipment of the Forces and the review of the Organic Laws of the F-FDTL and the PNTL according to the new Strategic Concept. Decisive for the survival of the first independent nation of the XX.th century is the daily implementation of the constitutional and legal system approved by the political oversight of the defence and security forces. This continued investment has already been and will surely continue to be tested in extreme circumstances, which are the proof of their resilience and the guarantee of their success.

References AAVV (2011) Commented Constitution of the Democratic Republic of Timor-Leste, Braga, CIIDH Bacelar de Vasconcelos, Pedro/Sousa da Cunha, Ricardo (2009) “O Semipresidencialismo Timorense” in Marina Costa Lobo, Octávio Amorim (Org.) “Semipresidencialismo em Países de Língua Portuguesa”, ICS, p 231 et ff Cardoso, Luís “E o Crocodilo fez-se Timor” J Fórum Estudante, 08.11.1994 Costa Pinto A (2005) Authoritarian legacies, transitional justice and state crisis in portugal’s democratization, Instituto de Ciências Sociais Universidade de Lisboa Working Papers, WP305, October available in http://www.ics.ul.pt/publicacoes/workingpapers/wp2005/wp2005_3. pdf. Accessed in 13 Feb 2018 Galvão Teles, Miguel / Canelas de Castro, Paulo (1996) Portugal and the Right of Peoples to Self-Determination. Archiv des Völkerrechts, 34(1), 3–46 Green JA (2011) Questioning the Peremptory Status of the Prohibition of the Use of Force. 32 Michigan Journal of International Law 215– 257 Kuo, Ming-Sung, From institutional sovereignty to constitutional mindset: rethinking the domestication of the state of exception in the age of normalization, in this volume Mendes NC (2005) A ‘multidimensionalidade’ da construção identitária em Timor-Leste: nacionalismo, estado e identidade nacional. Lisboa, Instituto Superior de Ciências Sociais e Políticas Mahmoud M, Constitution-making, political transition and reconciliation in tunisia and egypt: a comparative perspective, in this volume MOD, Grupo de Estudos Força 2020 do Ministério da Defesa do Governo de Timor-Leste, Caderno (2006) De Orientação Estratégica 1-Desenvolvimento das Forças Armadas de Timor-Leste 2020, Díli, MOD Molnar AK (2009) Timor-Leste: politics, history, and culture routledge contemporary Southeast Asia series, Routledge, p 135 et ff Neto Simões JM (2012) Novo modelo das Forças Armadas de Timor-Leste (FALINTIL-FDTL), J de Defesa e Relações Internacionais. http://database.jornaldefesa.pt/assuntos_diversos_defesa/ Novo%20modelo%20das%20Forças%20Armadas%20de%20Timor%20Leste%20Falantil% 20FDTL.pdf. Accessed in 13 Feb 2018 Ramos-Horta J (1987) Funu: the unfinished saga of East-Timor. Red Sea Press, Trenton Rezola MI (2012) The Portuguese transition to democracy in Herr, Richard; Pinto, António Costa (eds) The portuguese republic at one hundred, berkley: University of California, Institute of European Studies, pp 83–99 Schmitt C (1965) The concept of the political. University of Chicago Press, Chicago

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Sousa da Cunha R (2010a) “A Alteridade na prática Constitucional Timorense” in Hatene kona ba/ Compreender/ Understanding/ Mengerti Timor-Leste, Michael Leach, Nuno Canas Mendes, Antero b. da Silva, Alarico da Costa Ximenes/ Bob Boughton (ed) Hawthorn: Swinburne Press, p 10 et ff Sousa da Cunha R (2010b) “The Security Council’s Chapter VII action on Terrorism in light of the United Nations’ normative powers”, Tékhne, Law Edition, Vol. VIII, n.º 13, June, p 241 et ff UNDP (1994) Human Development Report 1994—New Dimensions of Human Security. http:// hdr.undp.org/sites/default/files/reports/255/hdr_1994_en_complete_nostats.pdf. Last consulted on 24 January 2017 Webster D (2016) “Failing fragile states: Canada and East Timor” in: Carroll MK, Donaghy G (eds) From Kinshasa to Kandahar: Canada and fragile states in historical perspective. University of Calgary Press, p 73 et ff

Ricardo Sousa da Cunha Ph.D Law School, University of Minho, Master International Law, Law Faculty University of Macau (PR China), Law Professor (IPCA), Visiting Professor (UNTL– National University of Timor-Lorosa’e).

Conclusion

Emergency’s Challenges Oren Gross

Abstract The final chapter examines several of the overarching challenges that are raised by “emergencies,” regardless of specific contexts in which that term is invoked. It focuses on five types of general concerns, namely the normalization of the exception, the problematics of balancing between the competing values of security and liberty, the manipulability of the very use of the concept of “emergency” to frame a given situation or state of affairs, the “Us versus Them” character of emergency situations that, in turn, exacerbates some of the previously identified challenges, and the capacity to exercise international monitoring and supervision when a government declares a state of emergency.

1 Introduction Modern realities of global terrorism and the attendant counter-terrorism measures present a major challenge to the traditional separation between the norm and the exception. On the one hand, terrorist threats increase in magnitude; even nuclear attacks carried out by non-state actors are now deemed plausible. On the other hand, the proliferation of global networks of terrorism result in a greater frequency of terrorist attacks. The increased frequency of terrorist attacks (or of threats thereof) and the vulnerability of nationals of most constitutional democracies to threats of terrorism, mean that governments have to contend on a more regular basis with the specter of terrorism. Such contraction of time and space, brought about by technological innovation, the communications revolution, and advances in transportation, increasingly challenges any capacity to keep emergency and normalcy separated, bringing new threats to states while significantly reducing the state’s available time for response. Nor are the challenges facing nations and governments in this context limited to terrorism and its attendant threats. As this volume amply demonstrates, the range O. Gross (B) University of Minnesota Law School, Minneapolis, MN, USA e-mail: [email protected] © Springer Nature Switzerland AG 2020 R. Albert and Y. Roznai (eds.), Constitutionalism Under Extreme Conditions, Ius Gentium: Comparative Perspectives on Law and Justice 82, https://doi.org/10.1007/978-3-030-49000-3_24

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of issues to which the label “emergency” has been attached, is quite wide ranging, encompassing, inter alia, health care emergencies, economic crises and more. This final chapter will examine several of the overarching challenges that are raised by “emergencies,” regardless of specific contexts in which that term is invoked. It focuses on four types of general concerns, namely the normalization of the exception, the problematics of balancing between the competing values of security and liberty, the manipulability of the very use of the concept of “emergency” to frame a given situation or state of affairs, the “Us versus Them” character of emergency situations that, in turn, exacerbates some of the previously identified challenges, and the capacity to exercise international monitoring and supervision when a government declares a state of emergency.

2 Normalizing In constitutional democracies, emergency powers are structured around an assumption of separation, defined by the belief in our ability to separate emergencies and crises from normalcy, counter-terrorism measures from ordinary legal rules and norms, confining the application of extraordinary measures to extraordinary times, and insulating periods of normalcy from the encroachment of vast emergency powers. However, if, as Fionnuala Ní Aoláin and I argue elsewhere,1 bright-line distinctions between normalcy and emergency are frequently untenable, with the exception merging with the rule and emergency government becoming the norm, then fashioning legal tools to respond to emergencies in the belief that separation will serve as a firewall that protects human rights, civil liberties, and the normal legal system as a whole may be inadequate and misguided. Emergencies are conceptualized in terms of a dichotomized dialectic. The term “emergency” connotes a sudden, urgent, usually unforeseen event or situation that requires immediate action, often without sufficient time for reflection and consideration. The notion of “emergency” is inherently linked to the concept of “normalcy” in the sense that the former is considered to be outside the ordinary course of events or anticipated actions. To recognize an emergency, we must have the background of normalcy. The concept of emergency is informed by notions of temporal duration and exceptional danger. For normalcy to be “normal,” it has to be the general rule, the ordinary state of affairs. Emergency must constitute no more than an exception to that rule—it must last only a relatively short time and yield no substantial permanent effects. The belief that a clear line can be drawn between normal times and times of exceptional threats to the nation underlies all models of emergency powers. Application of emergency powers is designed to be of a temporary nature, to serve as a bridge between pre-crisis and post-crisis normalcy.2

1 Gross 2 Gross

and Ní Aoláon (2006), 171–243. and Ní Aoláon (2006), 172–174.

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Rather than remaining exceptional, emergencies become entrenched and prolonged. Faced with the continuous threat, or fear, of terrorism, emergency regimes tend to perpetuate themselves, regardless of the intentions of those who originally invoked them. Once brought to life, they are not so easily terminable. Temporary emergency powers become the norm, the ordinary state of affairs. Time-bound emergency legislation is often the subject of future extensions and renewals, despite Lord Devlin’s caution that “It would be very unfortunate if the public were to receive the impression that the continuance of the state of emergency had become a sort of statutory fiction which was used as a means of prolonging legislation initiated under different circumstances and for different purposes.”3 It is commonplace to find on the statute books legislative acts that had originally been enacted as temporary emergency or counter-terrorism measures, but subsequently transformed into permanent legislation. Sunset clauses and renewal requirements become nothing but mere bumps on the otherwise smooth road to the normalization of the exception. The entrenchment of states of emergency and the attendant emergency powers is facilitated further by the inability to define, ex ante, what an “emergency” may be. The very concept of “emergency” is an elastic one and as such its invocation is often left in the hands of the government or the executive branch. Even where parliament plays a role in declaring or renewing a state of emergency, it is often no more than a mere rubber stamp to the executive wishes. Few situations can solidify broad national consensus behind the government. Times of crisis and emergency can and do.4 Moved by perceptions of substantial physical threat, motivated by growing personal fear of being the next victim and by hatred toward the terrorists, and frustrated by the continuance of terrorist activities, the public, and its elected representatives, may “rally ’round the flag”5 by supporting and calling on the government to employ more radical measures. This stifles robust debate about the responses to the crisis and help explain not only such phenomena as rushed legislation but also, more generally, the general acquiescence, indeed support, for the expansion, extension, and enhancement of governmental powers in times of crisis. As Harold Koh noted in a related context, the American president almost always wins in matters of foreign affairs due to the combination of executive initiative, congressional acquiescence and judicial tolerance.6 Thus, on October 18, 2017, when the newly appointed United Nations Special Rapporteur on Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Prof. Fionnuala Ní Aoláin, presented her first report to the Third Committee of the General Assembly,7 she chose to place as the first key issue that would be the focus of her mandate’s work, the “proliferation of

3 Willcock

v. Muckle, 2 K.B. 844, 853–54 (1951) (Devlin, J.). (2003), 1035–1036. 5 Russett (1990), 34. 6 Koh (1988), 1255; Koh (1990), 117–149. 7 UN Doc. A/72/43280. 4 Gross

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permanent states of emergency and the normalization of exceptional national security powers within ordinary legal systems of states.”8 In a further report, Ní Aoláin warned that, “the challenge for human rights protection has been the absorption of emergency statutes into the ordinary legal framework, including counter-terrorism legislation, essentially normalizing the exception.”9 It is also worth noting that the oxymoronic phenomenon of permanent emergencies has relatives in other types of emergencies, namely de facto, complex, and covert emergencies. Like the permanent emergency, so too these other types, deviate from the model emergency notion under which emergency is merely an exception to an otherwise normal state of affairs. De facto emergencies arise in situations when restrictive governmental powers are exercised without formal acknowledgment of the existence of an emergency; complex emergencies is characterized by “[a] great number of parallel or simultaneous emergency rules whose complexity is increased by the ‘piling up’ of provisions designed to ‘regularise’ the immediately preceding situation and therefore embodying retroactive rules and transitional regimes.”10 The “piling up” effect is often one of the practices that facilitate the creation of a legal and political culture which supports an extended emergency regime. The system becomes self-defined and reliant upon the legislative support structures created by the emergency and “normal” supports are lost in the process, thus making the return to normality more difficult. Complex states of emergency also sustain the enactment of repressive laws assuming the features of ordinary law. Thus, the complex emergency is facilitative of both hidden and permanent emergencies. Finally, covert emergencies may be recognized when parliaments and courts acquiesce to “[t]he minimal interpretations of certain [human] rights that stripped [the rights] of much of their content. This tactic has the effect of, at worst, seeking to create effective covert derogations and, at best, of redefining the rights so that they emerged only in a diluted form of practice.”11

3 Balancing The metaphor of balancing and the use of “balancing tests” are dominant features in legal discourse. They have become so ubiquitous across many jurisdictions around the world that some have identified “a transition from ‘balancing’ as a feature within fundamental rights adjudication to ‘balancing’ as an emblematic characteristic of entire legal systems and cultures.”12 It has even been suggested that the concept of balancing constitutes an element of the “ultimate” rule of law.13 Since the terrorist 8 Ní

Aoláin (2017). Doc. A/HRC/37/52 (2018), para 16. 10 Questiaux (1982), para 118. 11 Fenwick and Phillipson (2011), 867. 12 Bomhoff (2008), 556. 13 Beatty (2005). 9 UN

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attacks of September 11, 2001, the metaphor of balancing has been invoked so regularly to explain the need for a trade-off between liberty and security that it has become an “ambient feature of our political environment.”14 The general critiques of balancing tests are well known and need not be repeated here. What does merit special note, however, is that in situations involving extreme emergencies (real or perceived) an act of balancing between security and liberty is likely to be biased. Furthermore, the pressures exerted by acute exigencies on decision-makers, coupled with certain unique features of crisis mentality and thinking, are likely to result in a systematic undervaluation of one interest (liberty) and overvaluation of another (security) so that the ensuing balance would be tilted in favor of security concerns at the expense of individual rights and liberties. The systematic nature of those biases suggests that failure to address them may turn mistakes and errors into cognitive pathologies, i.e., decision methods that are not only mistaken but irrational.15 Individuals operate under certain cognitive limitations and biases that may prevent them from capturing the real probabilities of the occurrence of certain types of risks and uncertainties. Because accurate risk analysis requires information pertaining to both the magnitude of the risk and the probability of that risk materializing, such cognitive limits color our risk assessment and create a strong tilt toward putting undue emphasis on certain potential risks. While similar observations hold true in a wide variety of areas, the risks involved in acute national crises, in general, and in violent threats, in particular, coupled with other factors that undermine rational decision-making, have a special tendency to trigger such cognitive limitations and biases due not only to their potential magnitude, but mostly due to the manner in which they are perceived. Our bounded rationality16 leads us to rely on cognitive heuristics—shortcuts that we use when making decisions—as a means of countering the lack of sufficient time to properly evaluate the situation or the complexity of the problem facing us.17 Being “cognitive misers,” individuals utilize shortcuts in order to minimize the effort involved in processing information and to make decisions as expediently and painlessly as possible.18 Generally, the use of heuristics makes perfect sense and is rational as it “reduce[s] the time and effort required to make reasonably good judgments and decisions.”19 However, the most common heuristics may create patterns of mistaken assessments.20 Those patterns are further reinforced when heuristics are applied in times of crisis. The availability heuristic means that individuals tend to link their assessment of the probability of an occurrence of a particular event to their ability to imagine similar 14 Waldron

(2007), 455. and Krier (2000), 327. 16 Simon (1957), 198. 17 See, e.g., Finucan et al. (2000), 5–8. 18 Fiske and Taylor (2017), 37. 19 Plous (1993), 109. 20 Plous (1993), 131–44. 15 Noll

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events taking place.21 The easier it is to recall an event–the more familiar we are with it, for example, from personal experience–the more we are likely to overestimate the likelihood of its occurrence in the future.22 Moreover, the stronger and the more vivid and salient the images that are associated with a particular event are—the closer they are in space or time, the more emotionally exciting they are, or the more concrete and “image provoking” they are—the more such events are going to be perceived as likely to occur in the future, even if not experienced personally.23 As the two pioneers in this field, Amos Tversky and Daniel Kahneman, note: “[T]he impact of seeing a house burning on the subjective probability of such accidents is probably greater than the impact of reading about a fire in the local paper.”24 The images linked to the September 11, 2001, terrorist attacks—the planes hitting the Twin Towers, the towers crumbling down, firefighters and police officers battling against time, and people jumping to their death—were exceptionally powerful. The attacks have been followed by repeated official warnings of pending attacks and periodic changes in the ill-conceived and ill-executed official color-coded terror alert level,25 and the prominence of the wars in Afghanistan and Iraq. Those have further fed the terrorism frenzy, increasing the imaginability of various potential hazards and hence their perceived riskiness and the concomitant sense of individual and national insecurity. Individuals tend to overestimate the likelihood of dramatic events that attract significant media coverage and attention and underestimate the risks of “mundane” events that are, in fact, more—perhaps even much more—likely. That being the case, we can expect greater attention and public pressure, and consequently more resources, to be directed at controlling, minimizing, insuring against, or preventing (to the extent possible) the former.26 Overestimation of the likelihood of such risks would also mean that when put on the balancing scales and be compared to other, competing, interests, we are likely to perceive such risks as weighing the scales down more than they actually ought to. Prospect theory and probability neglect suggest that individuals tend to give excessive weight to low-probability results when the stakes are high enough and the outcomes are particularly bad (or, in fact, particularly good).27 In cases of highmagnitude, low-probability risks, attention is directed almost exclusively to outcomes rather than to the likelihood of such outcomes materializing. Terrorist threats are particularly challenging in this regard. Individuals perceive risks as more “serious,” the more “dreaded” and “unknown” they are. As risks become increasingly dreaded 21 Tversky

and Kahneman (1973), 207; Tversky and Kahneman (1982), 11.

22 The flip side is that unavailability might lead to underestimation, and as a result also underreaction.

This may have accounted to the intelligence failure in foiling the attacks of September 11 and comprehending the true nature of the risk. See, e.g., Sunstein (2007), 535; Bazerman and Watkins (2004), 15–41. 23 Plous (1993), 126. 24 Tversky and Kahneman (1982), 11. 25 Loewenstein and O’Donoghue (2006), 201; Zimbardo (2003); Shapiro and Cohen (2007); Paul and Park (2009). 26 Slovic (2004), 984–989. 27 Kahneman and Tversky (2001), 17; Slovic (2004), 982–983.

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and unknown, “people demand that something be done about them regardless of the probability of their occurrence, the costs of avoiding the risk, or the benefits of declining to avoid the risk.”28 A risk is “dreaded” if people perceive it to be involuntary and potentially catastrophic, and one over which they lack control. It is “unknown” if it is new and not well understood, among other things. Terrorist attacks are “dreaded” risks and as such are considered to be of an especially serious nature.29 At the same time, the range of “modern” terrorist threats creates what Kai Erikson calls a “new species of trouble,” that makes analytical risk assessment extremely difficult and increases our reliance on affective assessment.30 In the context of high-magnitude, low-probability risks, individuals often demonstrate probability neglect, i.e., the failure to assess at all the probability that a certain scenario will materialize, but instead focus exclusively on the worst possible outcome—the worst-case scenario. This has been famously captured by former Vice President Dick Cheney’s statement that “If there’s a one percent chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response.”31 Such predictions are especially potent— and at the same time likely to be biased–when the expected outcome is “affect rich,” as when it involves not merely a serious loss, but one that produces particularly strong emotions.32 Individuals also entertain myopic perspectives about the future in that they tend to undervalue and discount future benefits and costs when comparing them with present benefits and costs. While a strong governmental response against terrorism is perceived by the public as socially beneficial, the longer-term costs to individual rights and liberties tend to be overly discounted.33 That such future costs seem mostly intangible and abstract, especially in comparison with the very tangible sense of fear for one’s person and loved ones, coupled with a feeling of increased security as a result of governmental action and a sense that government’s infringements on civil liberties target “others” (as discussed in Sect. 5), only exacerbate this facet of our risk assessment.34 The problems identified above are further aggravated in times of crisis and emergency due to the push of such circumstances towards group polarization. Of the various explanations for group polarization, several are of special significance in our context, namely emotional contagion, social interactions, and over-confidence. Strong emotions such as fear, hysteria, panic, outrage, and xenophobia are invoked by violent emergencies. Such emotions carry a pronounced effect on people’s perceptions of, and reactions to, risk as they act as multipliers of (perceived) likelihood

28 Wells

(2004), 925. (2000), 985–986. 30 Erikson (1994); Slovic (2004), 985. 31 Quoted in Suskind (2006), 61–62. 32 Sunstein (2002a), 66; Sunstein (2002b), 1137–1144; Sunstein (2005). 33 Sunstein (2007), 527–528, 531–532. 34 Sunstein (2007), 524–529. 29 Slovic

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of risk.35 That effect is then amplified and re-amplified as a result of emotional contagion. Individuals are highly responsive to emotions expressed by others. Some emotions, such as fear, are particularly contagious. People also shape their opinions (particularly their expressed opinions) and adjust them so as to be in sync with the dominant position within the relevant reference group since they like to “belong” and to be favorably perceived and counted by others.36 This is especially so the less people feel that they know about a certain issue; they would tend then to rely on the judgments of those “in the know.” Decision-making that takes place under conditions of uncertainty is particularly prone to suffer from distortions that result from the interplay of informational and reputational influences and cascades. “In an informational cascade,” writes Cass Sunstein, “people cease relying … on their private information or opinions. They decide instead on the basis of the signals conveyed by others … It follows that the behavior of the first few people can, in theory, produce similar behavior from countless followers.”37 Matters of national security almost always present significant information asymmetries among the various branches of government and between the government and the public and are thus especially prone to the effects of informational cascades. Informational cascades may also partially explain the tendency of “civilians”—including not merely the public at large but also the judicial and legislative branches of government as well as individuals within the executive branch—to defer to the judgment of military experts in such matters.38 Informational and reputational cascades may, in fact, be manipulated by availability entrepreneurs who have particular stake in the outcomes of the policy making process and seek to shape and influence public discourse so as to control the policy selection process.39 In the context of national security issues the military-industrial complex may fulfill such a role.40 Such interest groups, seeking to influence national policy towards increased spending on defense and national security and according greater weight to national security concerns in setting national priorities, enjoy the benefits of possessing and controlling specialized information and expertise about potential national security risks and of being highly organized. This may not only lead other organizations institutions, such as the courts, to accord a significant margin of appreciation and deference to the judgments of national security entrepreneurs, but it may also mold the general public’s perception of the risks that terrorists, wars or emergencies present to the nation.41 Thus, if availability entrepreneurs acting in the area of national security present certain risks as highly likely to occur (or of special magnitude) their position is likely to influence greatly decision-makers and the public at large. Moreover, the combination of emotional contagion and consensus 35 Sunstein

(2007), 544–45; Sandman (1989), 45. discussion of “reputational cascade” see Sunstein (2003), 74–95. 37 Sunstein (2003), 55. 38 Gross (2003), 1034. 39 Kuran and Sunstein (1999), 727; Sunstein (2007), 539. See also Walker Wilson and Fuchs (2009). 40 Eisenhower (1961). See also Hanson and Kysar (1999a, b), 722–743; Hanson and Kysar (1999a, b). 41 Sunstein (2003), 54–95. 36 For

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leading to the prioritization of a “dominant position” will increase the ability of availability entrepreneurs to shape and influence public opinion and policy-making through reputational cascades, i.e., when people think they know what is right, and yet they conform to the crowd in order to maintain the good opinion of others. National security related risks, in general, and high-magnitude, low-probability threats, in particular, are especially susceptible, for example, to governmental “probability inflation”42 since they involve acute informational asymmetries between the Executive and other government branches and the public, resulting in greater deference towards the Executive.43 At the same time, the more confident “trusted” officials are in the correctness of their own assessments, that might, in and of itself, breed more radical responses to the perceived threats. As Sunstein suggests, “people with extreme views tend to have more confidence that they are right, and … as people gain confidence, they become more extreme in their beliefs.”44 Once again, the significant asymmetries in information between the experts and everyone else may contribute further to such confidence by the “experts” in the correctness of their positions. Over-confidence is often buttressed by notions of self-fulfilling prophecies and the observable tendency to prefer information that is consistent with one’s previously held views, or to interpret information in ways that confirm those views.45 This may also account for an attitude of suspicion and even disregard towards divergent positions that are advocated by “civilians.” At the same time, the phenomenon of “Monday morning quarterbacking” (known in scholarly circles as the “hindsight bias”) means that people tend to believe that they knew and assessed correctly all along a particular risk and its probability, even though the risk was completely unanticipated.46 The problem is that if people, in hindsight, believe that the risk was more foreseeable and still occurred that might be interpreted to mean that not enough measures had been taken in order to prevent the harm from taking place. That may lead “experts” whose professional reputations depend on their ability to anticipate threats and foil them to claim that the only reason for the failure to prevent the threat from materializing must be that they (i.e., the nation) were forced to fight the threats “with one hand tied behind their back” and to put the blame for the failure to act on those who are castigated as “soft on terrorism.” This may also contribute to the adoption of even more draconian counter-terrorism measures today then would have otherwise been justified by the circumstances.

42 Masur

(2007), 1325. (2007), 1329. 44 Sunstein (2005), 100. See also Rachlinski (2003), 1172–1173. 45 Horwitz (2003), 17; Plous (1993), 231–234. 46 See, e.g., Guthrie et al. (2001), 799–803. 43 Masur

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4 Framing Words are a source of immense power. We use words not only to communicate and express our thoughts, but also to shape thought itself. Rhetorical power is a way of constituting the audiences to whom it is addressed “by furnishing [listeners] with the very equipment they need to assess its use—the metaphors, categories, and concepts of … discourse.”47 These rhetorical devices are not neutral, value-free tools.48 Rhetors select them, consciously or unconsciously, to fit their purposes and to accord with their own, and their audience’s, values, worldview, and perception of reality.49 Governments choose and utilize them carefully not only vis-à-vis their own domestic audiences, but also to represent the status, values, and positioning of the state vis-à-vis other states, international institutions and organizations, and international and transnational legal and political forums. The framing of issues and outcomes significantly shapes choices—whether pertaining to private decisions or to public policy. “Frames are powerful nudges.”50 Individuals use frames as interpretive emotional filters through which they make sense of events around them and messages they receive.51 Reliance on framing means that whoever manages to control the framing of information greatly influences, and can manipulate, the interpretation and meaning that recipients of that information are likely to attach to it. The language used in the framing of the relevant events and issues (indeed, the language used to describe what the issues are and which of them are, in fact, relevant) is not only shaped and informed by reality,52 it is, in and of itself, constitutive of what that reality may be. Rather than being formed by, and discoverable through, exogenous situational contexts, rhetoric precedes and informs the impact of such situations.53 Meaning “is not discovered in situations, but created by rhetors.”54 In the United States, for example, no one plays the role of the national rhetorician more than the President—“the nation’s chief storyteller, its interpreter-in-chief.”55 Presidents, argues Kathleen Hall Jamieson, “respond to moments with words that tell us what the moments mean and then, with words, recommend to the nation and to the Congress courses of action.”56 While the Office of the President is continuously defined and redefined by its occupants in their interactions with the people, it also 47 Tulis

(2017), 203. (2009), 13. 49 Lakoff G (2009), 15. 50 Thaler and Sunstein (2008), 37. 51 Thaler and Sunstein (2008), 13. 52 Vatz (1973), 156. 53 Compare Vatz (1973), 154, with Bitzer (1968), 2. 54 Vatz (1973), 157. See also Berg (2009), 17–22. 55 Stuckey (1991), 1. 56 ‘Shifting language: trading terrorism for extremism (2005). See also Campbell Kohrs and Jamieson Hall (1990), 3. 48 Lakoff

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shapes and defines the national identity of the people.57 It is through presidential rhetoric that the “national fabric is woven.”58 The rhetoric of emergency, crisis and war, works as “rhetoric of investiture,”59 explaining and legitimating the need to concentrate powers in the executive. Governmental powers expand in times of crisis.60 War rhetoric leads to greater public acceptance, and even active demand by the public, of government exercising expansive powers and authorities in order to overcome the threat and restore peace and security. The same rhetoric also ensures the concentration of those expansive powers in the hands of the executive, strengthening it at the expense of the other two branches.61 The executive’s perceived ability to act swiftly, secretly, and decisively against threats to the nation becomes superior to the ordinary principles of limitation on governmental powers and individual rights.62 The government’s ability to frame the terms of the public discourse is greatly determinative not only of eventual outcomes and policy decisions, but also of their perceived acceptability and legitimacy. As Wojtek Wolfe suggests, in the context of the wars in Afghanistan and Iraq, President Bush “utilized framing effects and threat rhetoric in order to successfully accomplish risky foreign policy shifts … [in which the administration] presented a situation to the public that implied a need for decisions to be made under risk or uncertainty, allowing prospect theory to be applied to the president’s framing of the issues.”63 At the same time, emergency and war rhetorics contribute to the erosion of processes of deliberation and “decay of political discourse,”64 replacing “discussion structured by the contestability of opinion inherent to issues with a competition to please or manipulate the public.”65 In seeking to manipulate public opinion and decision-making, the framing of the relevant issues is critical. Policy choices are frequently shaped more by the framing of outcomes than by the substance of the issues at stake. Thus, in order to increase public support for its actions, the government (and particularly the executive branch) may seek to manipulate information pertaining both to the magnitude and probability of potential or to the costs and benefits of pursuing different measures in response to such risks (more on framing in the next Section).66 Significantly, a study of presidential war rhetoric in the United States has shown that presidents have used dramatic narrative filled with emotionally charged language

57 Berg

(2009), 9. Kohrs and Jamieson Hall (1990), 6. 59 Campbell Kohrs and Jamieson Hall (1990), 113. 60 Rossiter (1948), 288–290. 61 Koh (1990), 117–149. 62 Montesquieu (1748), 154; Lobel J (1989), 1386. 63 Wolfe (2008), 1. 64 Tulis (2017), 176. 65 Tulis (2017), 178–79. See also Tulis J (2017), 179; Kelley and Martinez (2002). 66 See, e.g., Hasen (1990); Stohl (1976), 82–95; Slovic et al. (1982), 483; Slovic (2004), 981. See also Loewenstein and Mather (1990), 161–65. 58 Campbell

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to identify major threats by clearly identifiable enemies to the nation and the American way of life that must be immediately and forcefully met.67 Presidential war rhetoric often exhorts the audience—the American people—to unanimity of purpose and total commitment. It distinguishes between “us” and “them” and harnesses that distinction to constitute the audience as a “united community of patriots that is urged to repulse the threat with all available resources.”68 War rhetoric not only constitutes the “united community of patriots;” it also identifies and names the enemy.69 Presidential rhetoric identifies and addresses two socially constructed target populations, i.e., “us” who need protecting and the “dangerous others” who threaten us.70 (See the next Section for further discussion of this point). “Emergency,” “War,” and “national security,” are often invoked as “god terms,” i.e., a rhetorical absolutes that impart the capacity to demand sacrifice, “for when a term is so sacrosanct that the material goods of this life must be mysteriously rendered up for it, then we feel justified in saying that it is in some sense ultimate.”71 As such, a “god term” is an enabler on multiple levels. At the same time, the terms say very little about their specific content because only the actual content can speak for itself.72 The seductive attributes of the war frame have not been lost on presidents even outside the context of armed conflict, invoking the term in the context of the war on poverty, war on drugs etc. Indeed, the war frame confers legitimacy on a wide spectrum of presidential actions, including many that would have otherwise been strongly challenged. As Richard Jackson comments: “[T]he discourse of the war on terrorism … set the logic and possibilities of policy formulation in the first instance … [and] helped to create the wider legitimacy and social consensus that [is] required to enact … policy.”73 The use of the language of emergency and war also justifies appeals for national and individual sacrifice while, at the same time, undermining the possibility of robust opposition because opponents could be, and were, easily castigated as being unpatriotic, defeatists, fifth column[ists], soft on terror, and even putting soldiers in harm’s way. Tulis notes that in the context of the War on Poverty, the war rhetoric “puts doubters under the suspicion of being in favor of poverty” and of being “unpatriotic, immoral, or both.”74 As George Orwell suggests in his Principles of Newspeak, “The purpose of Newspeak [is] not only to provide a medium of expression for the worldview and mental habits proper to the devotees of Ingsoc, but to make all other modes of thought impossible. … [A] heretical thought … should be literally unthinkable, at least so far as thought is dependent on words.”75 67 Campbell

Kohrs and Jamieson Hall (1990), 105–18. Kohrs and Jamieson Hall (1990), 111. 69 Campbell Kohrs and Jamieson Hall (1990), 111. 70 Schneider and Ingram (1993); Morone (2003). 71 Johannesen et al. (eds) (1970), 90. 72 Weaver (2015), 212. 73 Jackson (2007), 354. 74 Tulis (2017), 171. 75 Orwell (1964), 246. 68 Campbell

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Framing is closely linked to the phenomenon of anchoring. Amos Tversky and Daniel Kahneman demonstrated that when needing to make numerical estimates and judgments, the first number with which a decision-maker is presented has a demonstrably disproportionate effect on that person’s ultimate choice.76 That first number becomes the anchor to which all future assessments are then tied even when the anchor is clearly irrelevant.77 Anchors strongly influence the ultimate decision, in so far as they would be taken as the starting points against which adjustments are made and as influences on subsequent decisions and actions.78 This concept can be readily applied to the War on Terror. Anchoring the traumatic events of September 11 in the context of “war” has greatly shaped and influenced the responses to the attacks. The baseline for future reference—the first “number” with which we were presented— was “war.” Everything followed from that. Using the rhetoric of war, the President was able to frame the threats facing the nation and the responses to these threats away from a criminal law model and instead anchor them in a decidedly war model. The media and public quickly picked up the message that the attacks of September 11, 2001 were not a crime, but an act of war against the United States. For example, George Will wrote in the Washington Post on September 23, 2001 that, “[t]he goal is not to ‘bring terrorists to justice,’ which suggests bringing them into sedate judicial settings—lawyers, courtrooms, due process, all preceded by punctilious readings of Miranda rights. Rather, the goal is destruction of enemies.”79 Once put in place, the war frame was repeated over and over again until it was eventually used reflexively rather than reflectively, becoming normalized rather than conceived of as aberrational and exceptional.

5 Othering The biases mentioned in Sect. 3 and the problems of framing, discussed in Sect. 4, suggest that under extreme circumstances governmental overreaction against terrorist and other violent threats is a likely outcome. This is buttressed further by prevalent characterizations of violent emergencies in dichotomized and mutually exclusive “us versus them” terms.80 Shortly after the terrorist attacks of 9/11, President George W. Bush announced that, “[e]very nation, in every region, now has a decision to make. Either you are with us, or you are with the terrorists.”81 Similar language is often used in emergencies

76 Kahneman

and Tversky (2001), 457–458. and Tversky (2001), 457–458. 78 Kahneman and Tversky (2001), 457–458; Plous (1993), 145–146. 79 Will (2001). 80 Gross and Ní Aoláin (2006), 220–227. 81 Bush (2001). 77 Kahneman

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across jurisdictions. The contours of conflict are drawn around groups and communities rather than individuals. Such distinctions need not be taken as given; counterterrorism measures often actively produce and construct a suspect community.82 What is critical, though, is the identification of such a community of “others.” In times of crisis the dialectic of “us versus them” serves several functions. It allows people to vent fear and anger in the face of actual or perceived danger, and direct negative emotional energies toward groups or individuals clearly identified as different. The same theme also accounts for the greater willingness to confer emergency powers on the government when the “other” is well-defined and clearly separable from the members of the community.83 The fact that the targets of emergency and counterterrorism measures are perceived as outsiders, frequently foreign ones, has important implications when communities set out to strike a proper balance between liberty and security in times of crisis. The clearer the distinction between “us” and “them” and the greater the threats “they” pose to “us,” the greater in scope the powers assumed by government and tolerated by the public become. Balancing takes place not between security and liberty as such, but rather between our security and their liberty.84 Targeting outsiders is likely to incur little political cost for decision-makers. It may even prove to be politically expedient: While the benefits (perceived or real) of fighting terrorism and violence accrue to all members of society, the costs of such actions seem to be borne disproportionately (even exclusively) by a distinct and ostensibly well-defined group of people. Moreover, inasmuch as violent emergencies may lead to the targeting of “foreigners,” those targeted may lack the most basic of requirements for a meaningful political leverage—the right to vote political officials out of office. Times of great danger (real or perceived) have brought about a confluence of two mutually reinforcing trends, namely the tendency of the public to fear and hysteria, and nativistic tendencies. In his seminal study, Strangers in the Land, John Higham analyzes the phenomenon of American Nativism, which he defines as “intense opposition to an internal minority on the ground of its foreign (i.e., ‘un-American’) connections.”85 Higham finds patterns of nativistic attitudes throughout American history, focusing, in particular, on anti-Catholicism, anti-radicalism, and racial nativism. Yet, he also notes that “nativism usually rises and falls in some relation to other intense kinds of national feeling.”86 Intense moments have led to the intensification and polarization of pre-existing nativistic sentiments. Violent emergencies tend to result in situations where the cost bearers are sufficiently few and powerless, or have certain substantial (perhaps even insurmountable) barriers to their coalescing to fight the government’s actions.87 Under such circumstances, the danger is that political leaders will tend to strike a balance disproportionately in favor of security and impose 82 Hillyard

(1993), 257; Volpp (2003), 147. (2003), 1082–1085. 84 Cole (2003), 4–5. 85 Higham (2002), 4. 86 Higham (2002), 4. 87 Stuntz (2002), 2165. 83 Gross

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too much of a cost on the target group without facing much resistance (and, in fact, receiving strong support) from the general public.88 Research has demonstrated that when people contemplate their mortality they tend to punish or judge more harshly those who violate—or are at least perceived to violate—deeply held cultural values.89 The specter of our own mortality tends to lead us to make decisions that reinforce deeply held cultural values. To the extent that “foreign” connotes that which is not part of our group cultural identity and is even perceived to threaten it, it is not hard to see why, in the context of terrorist threats, “foreign” will be particularly targeted.90 The stigma of foreignness is not limited to the distinction of citizenship. Crises tend to lead to focus on identity and solidarity, rather than the formal legal characteristics of citizenship.91 Citizens who are somehow identified with the enemy are also seen as outsiders, as the internment of American citizens (together with non-citizens) of Japanese ancestry during World War II demonstrated. “Foreign” connotes, therefore, anything that threatens “our way of life.”92 The links to things and influences from abroad can then be easily made.93 Race, religion, and eventually ideas and beliefs and associations can, and have been, described as “foreign,” mobilizing significant popular forces against particular groups. As William Wiecek notes: “Since the early nineteenth century, Americans have nurtured a consistent fear that alien ideologies, as well as the foreigners who were thought to be their vectors, were invading the pristine American republic.”94 In the aftermath of September 11, the identification of the terrorists as foreigners has followed this pattern. It also serves to explain the particular shock and feelings of betrayal and revulsion that accompany attacks orchestrated by “home grown terrorists.”95 Whether drawn along citizenship, ethnic origin, race, or religion, a sense of clear distinction between “us” and “them” facilitates pushing the emergency powers’ envelope. A bright-line separation between “us” and “them” allows for piercing the Rawlsian veil of ignorance.96 We allow for more repressive emergency measures when we believe that we are able to peek beyond the veil and ascertain that such powers will not be turned against us. The portrayal of the sources of danger as “foreign” and terrorists as “others” who are endowed with barbaric characteristics and who are out to destroy us and our way of life is used further to prove the urgent need for radical measures to meet the threat head on.97

88 Blasi

(1985), 457; Méndez (2002), 383; Stone (2004), 545; Monaghan (1993), 26. et al. (2006), 1256. 90 Rachlinski et al. (2006), 1250–1252. See also Karst (2006), 1342–43. 91 Bosniak (2000); Wells (2005). 92 Brown (2010). 93 Wells (2004), 909–921. 94 Wiecek W (2001), 381. 95 Editorial (2005), 18; Guthrie and Tighe (2005), 13; Jenkins et al. (2005), 4. 96 Rawls (1999), 102–107. 97 Small and Loewenstein (2005), 315–316. 89 Rachlinski

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While the distinction between us and them is not unique to the sphere of emergency powers crises lead to heightened individual and group consciousnesses. Indeed, in identifying the enemy, several rhetorical tools are commonly utilized. Stereotyping is often employed with respect both to insiders and to outsiders, emphasizing gallant, noble, and worthy attributes of the former, and negative traits of the barbarian and demonic “other.”98 The language used is that of “good versus evil,”99 which may be accompanied, at times, by strong religious overtones.100 Stereotyping is often employed with respect both to insiders and to outsiders, emphasizing good, noble, and worthy attributes of the former, and negative traits of the latter. Collective derogatory name-calling and identification of the others as “barbarians” are symptoms of that trend.101 Internal conformities within the community are exaggerated, while divergence from “outsiders” is emphasized. War rhetoric facilitates this drawing of the contours of conflict around groups and communities. Thus, “a discourse of indignation, threat and suffering … communicated within a group, can become the basis for mobilization against an identified enemy.”102 As Robert Ivie suggests, “a people strongly committed to the ideal of peace, but simultaneously faced with the reality of war, must believe that the fault for any such disruption of their ideal lies with others.”103 Allegiance to the community and the willingness to sacrifice for the community’s sake—in certain situations, the willingness to make the ultimate sacrifice of one’s own life—receive a higher premium and attention in times of peril that endanger the group. The lines of ins and outs are more clearly and readily drawn.104 The combination of heightened levels of fear and anxiety and the identification and naming of the enemy who is held responsible for threatening the people may eventually result in a moral panic.105 The behavior of the clearly identifiable group of “enemies”—real or constructed as such106 —who are depicted as “folk devils,” is seen as harmful or threatening to the values and even existence of the nation and the people.107 Moral panics with their identification of “us” not merely as the good folk but also as the “victims”108 of the behavior of deviant “others” lead to a “tough on crime” mentality among the public, the press, law enforcement agents, politicians,

(1988), 156–202; Reid (1976), 267- - 69; Volpp (2002) 1586–1587. e.g., Bush (2001) (declaring that “This will be a monumental struggle of good versus evil. But good will prevail.”); Bush (2001) (positioning America and its allies as “those who want peace and security in the world” against evil acts of terrorism). 100 See, e.g., Bush (2001) (asking for “God’s good graces” and prayers on “the Lord’s Day” (Sunday)). 101 Hanson and Yosifan (2004), 55–57. 102 Billig (2003), xiii. See, e.g., Friedman (2009), WK8. 103 Ivie (1980), 280; Ivie (2005), 10–49; Bostdorff (1994) 205–240. 104 Schauer (1986). 105 Goode and Ben-Yehuda (2009), 37–38. 106 Hillyard (1993), 257. 107 Cohen (1972), 11–12; see also Livingston Smith (2011). 108 Furedi (2008), 651. 98 Gray 99 See,

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and the courts.109 Thus, facilitated by governmental rhetoric, and further inflamed by media exaggeration,110 moral panics, such as those that may come about as a result of high-profile terrorist attacks, in turn create immense pressures on all three branches of government to “do something” about the threat. As politicians and legislators engage increasingly in “symbolic alignments”—in which what counts is not the nature of the target but rather being seen as taking a position “against the devil and on the side of angels”—the focus is clearly put on a particular threat, terrorism, caused by a clearly identifiable group of folk devils, rather than on other types of threat, such as the infringement on civil liberties.

6 Monitoring The rhetoric of emergency is addressed at one and the same time to both domestic and international audiences. In a modern interconnected world, presidents (and prime ministers) do not operate in isolation. The domestic positioning of an administration or a government has distinct consequences beyond the state’s borders. A national government must carefully consider the risks as well as the advantages of appealing to the generality, globality, and interconnected nature of any threat that is defined domestically in war terms, as other nations, international institutions, and even nonstate actors reposition themselves in response. The subject matter of public emergency presents a background for a head-on collision between state sovereignty and national security on the one hand, and the international involvement in protecting individual human rights against state encroachment on the other hand. Mindful of this conflict and keen to preserve governmental maneuverability in the face of emergency, the drafters of the Convention for the Protection of Human Rights and Fundamental Freedoms,111 the International Covenant on Civil and Political Rights,112 and the American Convention on Human Rights113 included derogation clauses in each of the three documents. Designed to accommodate the needs of the state with the rights of individuals, the derogation clauses seek primarily to allow governmental action infringing recognized individual rights in a period of extreme emergency beyond what governments lawfully could do in times of normalcy. Within the framework of the conventions, the derogation regime acknowledges the possibility of a signatory state derogating from some of the individual rights protected under the conventions in extraordinary times and under specified 109 For

the latter see, e.g., Cohn Weiss (2006), 1117–1120. See also Hamilton (2012). and Ben-Yehuda (2009), 88–108. 111 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953). 112 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368. 113 American Convention on Human Rights, Nov. 22, 1969, O.A.S. Official Records OEA/ser. K/XVI/1.1, doc. 65 rev. 1 corr. 1 (entered into force July 18, 1978), 9 I.L.M. 673 (1970). 110 Goode

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conditions. In times of national danger, states are required to balance security interests and individual rights concerns according to a set of rules that both define the circumstances in which they may exercise emergency measures that infringe upon enforceable human rights and what measures they can use. The human rights conventions’ derogation regime incorporates both procedural and substantive principles that minimize the danger of usurpation or abuse of the derogation power by establishing a set of criteria through which any particular exercise of that power may be evaluated.114 The principle of proclamation requires an official declaration of the existence of a state of emergency. Its purpose is to make public the governmental decision that a state of emergency exists and to reduce the incidence of de facto states of emergency by requiring states to follow formal procedures set forth in their own municipal laws. This requirement is domestically directed. The principle of notification, which obliges a derogating state to notify the other parties to the relevant convention, within a brief period of time, of the derogation enables, in theory, effective international supervision over derogation measures and allows other states to exercise their rights under the convention to ensure that all parties comply fully with the provisions of that instrument. Even when an act of derogation may be justified under the conventions, the state does not enjoy unfettered discretion with respect to the derogation measures that it wishes to pursue. Such measures can only be taken “to the extent strictly required by the exigencies of the situation.” Derogation measures employed by a government, as well as the fact of derogation itself, must be proportional to the particular threat, both with respect to degree and duration. Another substantive part of the derogation regime is the principle of nondiscrimination on the ground of race, color, sex, language, religion, or social origin. Furthermore, emergency measures taken in the face of a public emergency must not be “inconsistent with [the derogating state’s] other obligations under international law.” The most important prerequisite for a legitimate derogation from otherwise protected rights is that the circumstances in which the derogation has been effected must constitute a “public emergency” of a certain specified degree—the principle of the exceptional threat. A crisis must be a truly extraordinary exigency to qualify as a derogation-justifying emergency. The derogation system adopts a vision of spasms of crises—episodic and sporadic events, albeit very serious in nature— that last for a relatively brief period of time before the restoration of normalcy. Emphasizing the exceptional nature of emergencies comports with the traditional paradigm regarding the relationship between normalcy and emergency—that of “normalcy-rule, emergency-exception.”115 However, for decades, long before 9/11, the actual jurisprudence under the human rights instruments proved far less robust than the theoretical constructs of the derogation regime seem to suggest. While judicial organs such as the European Court of Human Rights and the Inter-American Court of Human Rights have indicated consistently that they will not abdicate jurisdiction over derogation questions, they have 114 Gross 115 Gross

(1998), 448–453. (1998), 440.

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largely assumed a deferential attitude towards governmental assertions of conformity with the requirements of the derogation clauses, challenging the practical significance of their own rulings on their competence to decide these cases. Governments fared well when their decisions concerning the existence of a particular situation of emergency had been reviewed by those judicial bodies. This has been the result of the systemic difficulties that courts confront when they face national crises, and of a consistent failure to come to terms with the inadequacy of traditional paradigms of emergency. The contextual deference motif is also making a more sustained appearance in non-derogation cases, especially those involving due process rights, where invocations and appeals to the scourge of terrorism operate as a means to contextualize the contemporary interpretation of these rights. Undertaking a two-pronged historical analysis, one sees that the judicial bodies under the human rights conventions have, in practice, consistently legitimized the states’ use of emergency powers. First, focusing on the justification for calling the emergency, the case law under the European Convention on Human Rights and its American counterpart has, by and large, upheld states’ drawing on the legitimacy and necessity of particular derogations.116 The second step involves close scrutiny of judicial proportionality analysis, most notably as deployed by the European Court of Human Rights. Until the attacks of 9/11, this second prong had allowed the Court to scrutinize more robustly the actual practice of states coming before it, often striking down the measures taken by the derogating state as disproportionate to the threat faced, or articulating a lesser means-to-ends analysis.117 However, post-9/11, we identify a subtle shift in the outcomes of proportionality-based analysis, suggesting that it works increasingly to the respondent state’s benefit in determining whether the measures deployed were proportionate and suitable to the perceived or actual threat at hand.118 Importantly the proportionality test is being deployed in cases where there is no formal derogation in place, but the state advances claims about the broad context of terrorism as necessary to understand the complexity and contextual implications of its vulnerable position. This is effectively derogation and sustained emergency by stealth. This shift is evident in cases involving non-derogable rights (specifically torture or inhuman and degrading treatment) as well as specific derogable rights, such as due process and liberty, in which the very importation of a weak form of proportionality analysis, allied with pervasive references to the challenges of terrorism and exceptionalism broadly articulated, is weakening the core of the rights under review. Furthermore, in the aftermath of 9/11, while there has been a proliferation of exceptional powers practice, many democracies avoided formal acknowledgment 116 See e.g., Lawless v. Ireland, 1 Eur. H.R. Rep. 15, 37 (1961); Ireland v. United Kingdom, 2 Eur. H.R. Rep. 25, 107 (1976); Refah Partisi v. Turkey, 35 Eur. H.R. Rep. 3, 89 (2002); Askoy v. Turkey, 1996-VI Eur. Ct. H.R. 2260, 2281; Sakik v. Turkey, 1997-VII Eur. Ct. H.R. 2609, 2628; see also Ní Aoláin (1995). 117 See e.g., Aksoy v. Turkey, 1996-VI Eur. Ct. H.R. 2260 at 78; see also McCann and Others v. the United Kingdom, 324 Eur. Ct. H.R. (ser. A) at 149–50 (1995). 118 Sec’y of State for the Home Dep’t v. AF (No 3), [2009] UKHL 28, [2010] 2 A.C. 269 33; Sec’y of State for the Home Dep’t v. MB & AF, [2007] UKHL 46, [2008] 1 A.C 440, 484–85, 496–97.

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of de facto emergency power usage, and the explicit recognition that additional or layered domestic emergency powers activated derogation obligations under international human rights treaties.119 In a move connected to the issues raised in Sect. 2, states deploying ordinary legislative measures to enact rights-limiting regulation and to avoid any invocation of exceptionalism in the overt language of emergency regulation, consistently normalized the exception.120 Few democratic states have entered security-based derogations under their international human rights treaty obligations since 9/11.121 Thus, for example, the United Kingdom entered a substantial derogation after the events of 9/11 under Article 15 of the European Convention on Human Rights.122 Whatever the perceived merits of derogation framing, it is debatable what tangible leeway this derogation subsequently gave the United Kingdom. It is reasonable to assume that a formal derogation brought greater attention to the practices of the United Kingdom as the one democratic state in derogation,123 and that it became a lightning rod for the cries of foul play. One lesson from the British choice to frame the situation as a public emergency that justified resort to derogation, and the criticism directed at the UK government as a result, is simply not to derogate formally from human rights treaty obligations and avoid ceding the narrative space to the formalized exception. Rather, the working principle might well be that the maintenance of emergency powers is, by and large, not dependent on derogation, as evidenced by the 2000 Crime Act in the United Kingdom.124 Essentially, the “work” can get done in other ways. The normalization frame is now well in place.

119 Masferrer

(2012), 9. and Ní Aoláin (2006), 228–243; Vladeck (2012), 1300; Dyzenhaus (2006), 17–65. 121 Zwitter et al. (2014). 122 List of Declarations Made by the United Kingdom Regarding the Convention for the Protection of Human Rights and Fundamental Freedoms, Council Eur. Treaty Off. (Oct. 29, 2014), http://www.conventions.coe.int/treaty/Commun/ListeDeclarations.asp?PO=UK&NT= 005&MA=999&CV=1&NA=&CN=999&VL=1&CM=5&CL=ENG. 123 Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In, 2009–10, H.L. 86, H.C. 111, at 7–8 (U.K.) (see in particular paragraphs 11 and 12, where the Parliamentary Committee disputes the executive’s assertion that the conditions exist sufficient to claim a state of emergency relying on the assessment of the Joint Terrorism Analysis Center (JTAC)). 124 Terrorism Act, 2000, c. 11 (U.K.). 120 Gross

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The production of legislation that is emergency-driven in character, but framed formally as ordinary, continues unabated. Democracies such as the United Kingdom, France,125 the United States, Canada,126 Germany,127 and Australia128 have enacted substantial and far-reaching legislation aimed at containing terrorist or national security threats and virtually all of it has been marshaled through the ordinary criminal law.129 The most cogent example of this phenomenon is the conversion in the United Kingdom of decades of exceptional emergency legislation including the Emergency Powers Act and the Prevention of Terrorism Acts into consolidated “ordinary” UK wide legislation at the ending phase of the conflict in Northern Ireland.130 We are witnessing “the subversion of legal norms to counter-insurgency ends.”131

References Askoy v. Turkey, 1996-VI Eur. Ct. H.R. 2260 American Convention on Human Rights, Nov. 22, 1969, O.A.S. Official Records OEA/ser. K/XVI/1.1, doc. 65 rev. 1 corr. 1 (entered into force July 18, 1978), 9 I.L.M. 673 (1970) Bazerman M, Watkins D (2004) Predictable surprises. Harvard Bus Rev Press, Brighton Beatty D (2005) The ultimate rule of law. OUP, Oxford Berg DR (2009) The new way and the war on terror: a generic analysis of George W. Bush’s war rhetoric. VDM Verlag, Saarbrücken Bitzer L (1968) The rhetorical situation. Philos Rhetor 1(1):1–14 Blasi V (1985) The pathological perspective and the First Amendment. Columbia Law Rev 85(3):449–514 Bomhoff J (2008) Balancing, the global and the local: judicial balancing as a problematic topic in comparative (constitutional) law. Hastings Int’l & Comp Law Rev 31(2):555–586 Bosniak L (2000) Citizenship denationalized. Indiana J Glob Leg Stud 7(2):447–510 Bostdorff D (1994) The presidency and the rhetoric of foreign crisis. University of S C Press, Columbia Brown R (2010) Prejudice: its social psychology, 2nd edn. Wiley-Blackwell, Hoboken

125 Gross

(2018). Council Office, Securing an Open Society: Canada’s National Security Policy (2004). 127 See Lichtenberg (2012). 128 Since 9/11, Australian states have passed a number of laws authorizing temporary emergency powers. See, e.g., Terrorism (Extraordinary Temporary Powers) Act 2006, (Austl. Cap. Terr.) (Austl.), available at http://www.legislation.act.gov.au/a/2006-21/current/pdf/2006-21.pdf; Terrorism (Emergency Powers) Act 2003 (N. Terr.) (Austl.), available at http://www.austlii.edu.au/ au/legis/nt/consol_act/tpa323/; Terrorism (Police Powers) Act 2002 (N.S.W.) (Austl.), available at http://www.austlii.edu.au/au/legis/nsw/consol_act/tpa2002291/. 129 See e.g., Terrorism Act, 2000, c. 11 (U.K.); Lane Scheppele (2006). 130 The legislation included the Terrorism Act (2000), the Anti-Terrorism, Crime and Security Act (2001), the Criminal Justice Act (2003), the Prevention of Terrorism Act (2005), the Terrorism Act (2006), the Terrorism (United Nations Measures) Order 2006, and the Counter-Terrorism Act (2008). 131 McGovern (2011), 223. 126 Privy

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Bush GW (20 Sept 2001) President of the U.S., address to a joint session of Congress and the American people. http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/200 10920-8.html. Accessed 13 Sept 2019 Bush GW (2001) President of the U.S., remarks by the president in photo opportunity with the national security team. http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/200 10912-4.html. Accessed 13 Sept 2019 Bush GW (2001) President of the U.S., remarks by the president upon arrival. http://georgewbushwhitehouse.archives.gov/news/releases/2001/09/20010916-2.html. Accessed 13 Sept 2019 Bush GW (11 Sept 2001) President of the U.S., statement by the president in his address to the nation. http://georgewbush-whitehouse.archives.gov/news/releases/2001/09/20010911-16.html. Accessed 13 Sept 2019 Campbell Kohrs K, Jamieson Hall K (1990) Deeds done in words: presidential rhetoric and the genres of governance. University of Chic Press, Chicago Cohen S (1972) Folk devils and moral panics: the creation of the mods and rockers. Paladin, Boulder Cohn Weiss J (2006) Tough on crime: how campaigns for state judiciary violate criminal defendants’ due process rights. N Y University Law Rev 81(3):1101–1136 Cole D (2003) Enemy aliens. The New Press, New York Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953) Dyzenhaus D (2006) The constitution of the law: legality in a time of emergency. CUP, Cambridge Editorial (2005) The chilling challenge of home-grown Jihadis: we need to confront the message, not just the bombers. Fin Times 18 Eisenhower D (1961) Farewell address. http://www.eisenhower.utexas.edu/farewell.htm. Accessed 13 Sept 2019 Erikson K (1994) A new species of trouble: explorations in disaster, trauma, and community. W. W. Norton, New York Fenwick H, Phillipson G (2011) Covert derogations and judicial deference: redefining liberty and due process rights in counterterrorism law and beyond. McGill Law J 56(4):863–918 Finucane M et al (2000) The affect heuristic in judgments of risks and benefits. J Behav’l Decis Making 13(1):1–17 Fiske S, Taylor S (2017) Social cognition: from brains to culture, 3rd edn. Sage, London Friedman T (2009) America versus the narrative. NY Times WK8 Furedi F (2008) Fear and security: a vulnerability-led policy response. Soc Policy & Adm 42(6):645– 661 Goode E, Ben-Yehuda N (2009) Moral panics: the social construction of deviance, 2nd edn. WileyBlackwell, Hoboken Gray JG (1988) The warriors: reflections on men in battle, 2nd edn. Lincoln, Bison Gross O (2003) Chaos and rules: should responses to violent crises always be constitutional? Yale Law J 112(5):1011–1134 Gross O (2018) The normal exception. In: Graber M et al (eds) Constitutional democracies in crisis. OUP, Oxford Gross O (1998) “Once more unto the breach”: the systemic failure of applying the European Convention on Human Rights to entrenched emergencies. Yale J Int’l Law 23(2):437–502 Gross O, Ní Aoláin F (2006) Law in times of crisis: emergency powers in theory and practice. CUP, Cambridge Guthrie C et al (2001) Inside the judicial mind. Cornell Law Rev 86(4):777–830 Guthrie J, Tighe C (16 July 2005) The eerily ordinary extremists. Fin. Times 13 Hamilton M (2012) The child pornography crusade and its net widening effect. Cardozo Law Rev 33(4):1679–1732 Hanson J, Kysar D (1999a) Taking behavioralism seriously: some evidence of market manipulation. Harvard Law Rev 112(7):1420–1573 Hanson J, Kysar D (1999b) Taking behavioralism seriously: the problem of market manipulation. N Y Law Rev 74(3):630–749

Emergency’s Challenges

449

Hanson J, Yosifan D (2004) The situational character: a critical realist perspective on the human animal. Georget Law J 93(1):1–180 Hasen R (1990) Efficiency under informational asymmetry: the effect of framing on legal rules. University of Calif Los Angel Law Rev 38(2):391–438 Higham J (2002) Strangers in the land: patterns of American nativism, 1860–1925, revis edn. Rutgers University Press, New Brunswick Hillyard P (1993) Suspect community: people’s experience of prevention of terrorism acts in Britain. Pluto, London Horwitz P (2003) Free speech as risk analysis: heuristics, biases, and institutions in the First Amendment. Temple Law Rev 76(1):1–68 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368 Ireland v. United Kingdom, 2 Eur. H.R. Rep. 25 (1976) Ivie R (2005) Democracy and America’s war on terror. University of Ala Press, Tuscaloosa Ivie R (1980) Images of savagery in American justifications for war. Commun Monogr 47(4):279– 294 Jackson R (2007) Language, policy, and he construction of a torture culture in the war on terrorism. Rev of Int’l Stud 33(3):353–371 Jenkins R et al (2005) The London bombers. The Times 4 Johannesen R et al (eds) (1970) Language is sermonic: Richard M. Weaver on the nature of rhetoric. La State University Press, Baton Rouge Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In, 2009–10, H.L. 86, H.C. 111 (U.K.) Kahneman D, Tversky A (2001) Prospect theory: an analysis of decision under risk. In: Kahneman D, Tversky A (eds) Choices, values, and frames. CUP, Cambridge, pp 17–43 Karst K (2006) Threats and meanings: how the facts govern First Amendment doctrine. Stanf Law Rev 58(5):1337–1412 Kelley C, Martinez MT (2002) Hitting Camels in the butt: war rhetoric and deliberation in the aftermath of the September 11 terrorist attacks. Am Political Science Assoc Koh H (1990) The national security constitution: sharing power after the Iran-Contra affair. YUP, New Haven Koh H (1988) Why the president (almost) always wins in foreign affairs: lessons of the Iran-Contra affair. Yale Law J 97(7):1255–1342 Kuran T, Sunstein C (1999) Availability cascades and risk regulation. Stanf Law Rev 51(4):683–768 Lakoff G (2009) The political mind: a cognitive scientist’s guide to your brain and its politics. Penguin Books, London Lane Scheppele K (2006) The migration of anti-constitutional ideas: the post 9/11 globalization of public law and international state of emergency. In: Choudry S (ed) The migration of constitutional ideas. CUP, Cambridge Lawless v. Ireland, 1 Eur. H.R. Rep. 15 (1961) Lichtenberg A (2012) Germany’s anti-terror law 10 years on. Available via DW.de. http://www.dw. de/germanys-anti-terror-law-10-years-on/a-15654829. Accessed 12 Sept 2019 List of Declarations Made by the United Kingdom Regarding the Convention for the Protection of Human Rights and Fundamental Freedoms, Council Eur. Treaty Off. (Oct. 29, 2014). http://www.conventions.coe.int/treaty/Commun/ListeDeclarations.asp?PO= UK&NT=005&MA=999&CV=1&NA=&CN=999&VL=1&CM=5&CL=ENG Livingston Smith D (2011) Less than human: why we demean, enslave, and exterminate others. St. Martin’s Griffin, New York Lobel J (1989) Emergency power and the decline of liberalism. Yale Law J 98(7):1385–1434 Loewenstein F, Mather J (1990) Dynamic processes in risk perception. J Risk Uncertain 3(2):155– 175 Loewenstein G, O’Donoghue T (2006) “We an do this the easy way or the hard way”: negative emotions, self-regulation, and the law. University Chic Law Rev 73(1):183–206

450

O. Gross

Masferrer A (2012) Introduction: security, criminal justice and human rights in countering terrorism in the post 9/11 era. In: Masferrer A (ed) Post 9/11 and the state of permanent legal emergency: security and human rights in countering terrorism. Springer, New York Masur J (2007) Probability thresholds. Iowa Law Rev 92(4):1293–1358 McCann and Others v. the United Kingdom, 324 Eur. Ct. H.R. (ser. A) (1995) McGovern M (2011) The dilemma of democracy: collusion and the state of exception. Stud Soc Justice 5(2):213–230 Méndez J (2002) Human rights policy in the age of terrorism. St Louis University Law J 46(2):377– 404 Monaghan H (1993) The protective power of the presidency. Columbia Law Rev 93(1):1–74 Montesquieu (1748) The spirit of laws. English edition: Montesquieu (1977) The spirit of the laws (trans: Nugent T). University of Calif Press, Berkeley Morone J (2003) Hellfire nation: the politics of sin in American history. YUP, New Haven Ní Aoláin F (2017) On promotion and protection of human rights at the Third Committee, 23rd meeting-General Assembly, 72nd session. http://webtv.un.org/watch/fionnuala-n%C3%ADaoláin-special-rapporteur-on-promotion-and-protection-of-human-rights-at-the-third-commit tee-23rd-meeting-general-assembly-72nd-session/5613073854001/?term#.WegYLUgrJ0w.fac ebook. Accessed 13 Sept 2019 Ní Aoláin F (1995) The emergence of diversity: differences in human rights jurisprudence. Forham Int’l Law J 19(1):101–142 Noll R, Krier J (2000) Some implications of cognitive psychology for risk regulations. In: Sunstein C (ed) Behavioral law & economics. CUP, Cambridge, pp 325–354 Orwell G (1964) Appendix: the principles of newspeak. In: Orwell G 1984, The New American Library Edn. Harcourt, Brace and Co, Inc, New York Paul J, Park S (2009) With the best of intentions: the color coded homeland security advisory system and the law of unintended consequences. Res Pract Soc Sci 4(2):1–13 Plous S (1993) The psychology of judgment and decision making. McGraw-Hill, New York Privy Council Office, Securing an Open Society: Canada’s National Security Policy (2004) Questiaux N (1982) Study of the implications for human rights of recent developments concerning situations known as states of siege or emergency. U.N. ESCOR, 35th Sess., U.N. Doc. E/CN.4/Sub.2/1982/15 (1982), para. 118 Reid R (1976) New England rhetoric and the French War, 1754–1760: a case study in the rhetoric of war. Commun Monogr 43(4):259–286 Rossiter C (1948) Constitutional dictatorship: crisis government in the modern democracies. Princeton, PUP Rachlinski J et al (2006) Inside the bankruptcy judge’s mind. Boston University Law Rev 86(5):1227–1266 Rachlinski J (2003) The uncertain psychological case for paternalism. Northwest University Law Rev 97(3):1165–1226 Rawls J (1999) A theory of justice. Cambridge, Belknap Refah Partisi v. Turkey, 35 Eur. H.R. Rep. 3 (2002) Russett B (1990) Controlling the sword: the democratic governance of national security. HUP, Cambridge Sakik v. Turkey, 1997-VII Eur. Ct. H.R. 2609 Sandman P (1989) Hazard versus outrage in the pubic perception of risk. In: Covello V et al (eds) Effective risk communication: the role and responsibility of government and nongovernment organizations. Springer, New York, pp 45–52 Schauer F (1986) Community, citizenship, and the search for national identity. Mich Law Rev 84(7):1504–1517 Schneider A, Ingram H (1993) Social Construction of target populations: implications for politics and policy. Am Polit Sci Rev 87(2):334–347 Sec’y of State for the Home Dep’t v. AF (No 3), [2009] UKHL 28, [2010] 2 A.C. 269 Sec’y of State for the Home Dep’t v. MB & AF, [2007] UKHL 46, [2008] 1 A.C 440

Emergency’s Challenges

451

Shapiro JN, Cohen DK (2007) Color blind: lessons from the failed homeland security advisory system. Int’l Secur 32(2):121–154 Shifting language: trading terrorism for extremism (2005) Nat’l Pub Radio, at 01:32. http://www. npr.org/templates/story/story.php?storyId=4772826. Accessed 13 Sept 2019 Simon H (1957) Models of man: social and rational. Wiley, New York Slovic P (2000) The perception of risk. Earthscan, London Slovic P (2004) What’s fear got to do with it? it’s affect we need to worry about. Mo Law Rev 69(4):971–990 Slovic P et al (1982) Understanding perceived risk. In: Kahneman D et al (eds) Judgment under uncertainty: heuristics and biases. CUP, Cambridge Small D, Loewenstein G (2005) The devil you know: the effects of identifiability on punishment. J Behav Decis Mak 18(5):311–318 Stohl M (1976) War and domestic political violence: the American capacity for repression and reaction. Sage, Beverly Hills Stone G (2004) Perilous times: free speech in wartime from the Sedition Act of 1798 to the War on Terrorism. W. W. Norton, New York Stuckey M (1991) The president as interpreter-in-chief. CQ Press, Washington Stuntz W (2002) Local policing after the terror. Yale Law J 111(8):2137–2194 Sunstein C (2002a) The laws of fear. Harvard Law Rev 115(4):1119–1169 Sunstein C (2005) Laws of fear: beyond the precautionary principle. CUP, Cambridge Sunstein C (2007) On the divergent American reactions to terrorism and climate change. Columbia Law Rev 107(2):503–558 Sunstein C (2002b) Probability neglect: emotions, worst cases, and law. Yale Law J 112(1):61–108 Sunstein C (2003) Why societies need dissent. HUP, Cambridge Suskind R (2006) The one percent doctrine. Simon & Schuster, New York Terrorism Act, 2000, c. 11 (U.K.) Terrorism (Emergency Powers) Act 2003 (N. Terr.) (Austl.). http://www.austlii.edu.au/au/legis/nt/ consol_act/tpa323/ Terrorism (Extraordinary Temporary Powers) Act 2006 (Austl. Cap. Terr.) (Austl.). http://www.leg islation.act.gov.au/a/2006-21/current/pdf/2006-21.pdf Terrorism (Police Powers) Act 2002 (N.S.W.) (Austl.). http://www.austlii.edu.au/au/legis/nsw/con sol_act/tpa2002291/ Thaler R, Sunstein C (2008) Nudge: improving decisions about health, wealth, and happiness. Penguin Books, London Tulis J (2017) The rhetorical presidency, new edn. Princeton, PUP Tversky A, Kahneman D (1973) Availability: a heuristic for judging frequency and probability. Cogn Psychol 5(2):207–232 Tversky A, Kahneman D (1982) Judgment under uncertainty: heuristics and biases. In: Kahnemen D et al (eds) Judgment under uncertainty: heuristics and biases. CUP, Cambridge, pp 3–22 UN Doc. A/72/43280 UN Doc. A/HRC/37/52 (2018), para. 16 Vatz R (1973) The myth of the rhetorical situation. Philos Rhetor 6(3):154–161 Vladeck SI (2012) The new national security canon. Am University Law Rev 61(5):1295–1330 Volpp L (2003) The citizen and the terrorist. In: Dudziak M (ed) September 11 in history: a watershed moment?. Duke University Press, Durham Volpp L (2002) The citizen and the terrorist. Univ Calif Los Angel Law Rev 49(5):1575–1600 Waldron J (2007) Safety and security. Neb. Law Rev 85(2):454–507 Walker Wilson M, Fuchs M (2009) Publicity, pressure, and environmental legislation: the untold story of availability campaigns. Cardozo Law Rev 30(5):2147–2222 Weaver R (2015) The ethics of rhetoric, reprint edn. Echo Point, Brattleboro Wells C (2005) Fear and loathing in constitutional decision-making. Wis Law Rev 2005(1):115–224 Wells C (2004) Questioning deference. Mo. Law Rev 69(4):903–950

452

O. Gross

Wiecek W (2001) The legal foundations of domestic anticommunism: the background of Dennis v. United States. Supreme Court Rev 2001:375–434 Will G (2001) Battle hymn. Wash Post B07 Willcock v. Muckle, 2 K.B. 844 (1951) (Devlin, J.) Wolfe W (2008) Winning the war of words: selling the war on terror from Afghanistan to Iraq. Praeger, Santa Barbara Zimbardo P (2003) The political psychology of terrorist alarms. http://www.zimbardo.com/dow nloads/2002%20Political%20Psychology%20of%20Terrorist%20Alarms.pdf. Accessed 12 Sept 2019 Zwitter A, Prins A, Pannwitz H (2014) State of emergency mapping database. In: University of Groningen Faculty of Law Research Paper Series. http://emergencymapping.org/onewebmedia/ 140423%20-%20STEM%20Working%20Paper.pdf. Accessed 12 Sept 2019

Oren Gross is the Irving Younger Professor of Law at the University of Minnesota Law School.