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Constitutionalism Under Extreme Conditions

Law, Emergency, Exception

  • 2020
  • Buch
Herausgegeben von
Prof. Richard Albert
Dr. Yaniv Roznai
Buchreihe
Ius Gentium: Comparative Perspectives on Law and Justice
Verlag
Springer International Publishing
Enthalten in
Springer Professional "Wirtschaft+Technik"
Springer Professional "Wirtschaft"
insite
SUCHEN

Über dieses Buch

Dieses Buch untersucht das Problem der Verfassungsänderung in Krisenzeiten. Unterteilt in fünf Hauptteile untersucht und hinterfragt sie, wie das öffentliche Recht Veränderungen in Zeiten außerordentlichen Drucks auf die Verfassung bewältigt. In Teil I, "Notfall, Ausnahme und Normalität", diskutieren die Beitragenden die Praktiken und Methoden, die dazu beitragen könnten, den Einsatz von Notstandsbefugnissen zu legitimieren, ohne die verfassungsmäßigen Prinzipien zu gefährden, die während einer Phase der Normalität geschaffen wurden. In Teil II, "Terrorismus und Kriegsführung", bewerten die Verfasser, wie Verfassungen in Kriegszeiten ausgelegt werden, wobei sie sich auf das Spannungsverhältnis zwischen individuellen Rechten und Sicherheit konzentrieren. Teil III, "Public Health, Financial and Economic Crises", befasst sich mit der Frage, wie sich Verfassungen in Reaktion auf Krisen ändern, die weder politisch im herkömmlichen Sinne noch gewalttätig sind, was auch die Beurteilung der verfassungsmäßigen Widerstandskraft in Stresszeiten erschwert. Teil IV, "Konstitutionalismus für geteilte Gesellschaften", untersucht dann den Druck auf Verfassungen, die darauf ausgelegt sind, unterschiedliche, multinationale Bevölkerungen zu regieren, und wie Verfassungsstrukturen Stabilität und Gleichgewicht in diesen Staaten fördern können. Teil V mit dem Titel "Verfassungsgebung und Verfassungsänderung" beleuchtet, wie Verfassungen in spannungsgeladenen Zeiten transformiert oder neu geschaffen werden. Das Buch schließt mit einer reichhaltigen kontextuellen Diskussion der drängenden Herausforderungen, vor denen Verfassungen in Momenten extremen Drucks stehen. Kapitel "Public Health Emergencies and Constitutionalism Before COVID-19: Between the National and the International" ist unter einer Creative Commons Attribution 4.0 International License unter link.springer.com frei zugänglich.
Mit KI übersetzt

Inhaltsverzeichnis

Frontmatter
Introduction: Modern Pressures on Constitutionalism
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.
Yaniv Roznai, Richard Albert

Emergency, Exception, and Normalcy

Frontmatter
Introduction: Emergency, Exception and Normalcy
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.
Guy Lurie
From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization
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.
Ming-Sung Kuo
Judicial Review and Emergencies in Post-Marcos Philippines
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.
Dante B. Gatmaytan
Constitution and Law as Instruments for Normalising Abnormalcy: States of Exception in the Plurinational Context
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 friend-enemy 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.
Kumaravadivel Guruparan
Political Emergencies as Challenges to the Impartiality of Public Law
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.
Ioannis A. Tassopoulos

Terrorism and Warfare

Frontmatter
Introduction: Terrorism and Warfare—Extreme Conditions or the New Normal?
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.
Myriam Feinberg
Human Rights in Times of Terror—A Judicial Point of View
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’.
Aharon Barak
Detaining Unlawful Enemy Combatants In Israel: A Matter of Misinterpretation?
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.
Joshua Segev
The Law Governing the Right of Enemy Aliens’ Access to Courts
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.
Roy Peled, Liav Orgad, Yoram Rabin

Public Health, Financial, and Economic Crises

Frontmatter
Introduction: Public Health, Financial and Economic Crises
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.
Anna Damaskou
Judging in Times of Economic Crisis: The Case Law on Austerity Measures in Comparative Perspective
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.
Antonia Baraggia
Financial Crisis as a New Genus of Constitutional Emergency?
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.
Elisa Bertolini

Open Access

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

Frontmatter
Introduction: Constitutionalism for Divided Societies
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.
Patrick Graham
The Constitutionalism of Emergency: The Case of Bosnia and Herzegovina and Beyond: Multinationalism Behind Asymmetrical Constitutional Arrangements
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.
Maja Sahadžić
The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences
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.
Elias Dinas, Nikos Skoutaris
Entrenching Hegemony in Cyprus: The Doctrine of Necessity and the Principle of Bicommunality
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.
Nasia Hadjigeorgiou, Nikolas Kyriakou

Constitution-Making and Constitutional Change

Frontmatter
Introduction: Constitution-Making and Constitutional Change
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.
Tom Gerald Daly
Authoritative Constitution-Making in the Name of Democracy?
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 constitution-making 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.
Andreas Braune
Again: From 1867 to Today, Making a Constitution Under an Elite Umbrella in Turkey
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.
Fatih Öztürk
Constitution-Making, Political Transition and Reconcilation in Tunisia and Egypt: A Comparative Perspective
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 constitution-making 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 constitution-making 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.
Manar Mahmoud
Constitutional Exception as the Basis for Security Sector Reform in Timor-Leste
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.
Ricardo Sousa da Cunha

Conclusion

Frontmatter
Emergency’s Challenges
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.
Oren Gross
Titel
Constitutionalism Under Extreme Conditions
Herausgegeben von
Prof. Richard Albert
Dr. Yaniv Roznai
Copyright-Jahr
2020
Electronic ISBN
978-3-030-49000-3
Print ISBN
978-3-030-48999-1
DOI
https://doi.org/10.1007/978-3-030-49000-3

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