State of emergency in contemporary constitutions p. tonini

STATE OF EMERGENCY

HOW HUMAN RIGHTS CAN BE DEROGATED UNDER WESTERN CONSTITUTIONAL LAWS

Paolo V. ToniniKing’s College of [email protected]

There exists no norm that is applicable to chaos - Carl Schmitt

The question you propose, whether circumstances do not sometimes occur, which make it a duty in officers of high

trust, to assume authorities beyond the law, is easy to solution in principle, but sometimes embarrassing in practice.

A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest.

The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our

country by a scrupulous adherence to written laws, would be to lose the law itself, with life, liberty, property and all

those who are enjoying them with us; thus absurdly sacrificing the end to the means

Letter of Thomas Jefferson to John B. Colvin, Monticello, September 20, 1810

TABLE OF CONTENTSI. PREAMBLEII. EMERGENCY VS. STATE OF EMERGENCY

A. DEFINITION OF EMERGENCYB. STATE OF EMERGENCYC. JURISPRUDENCIAL DILEMMA: LAWS OF

NECESSITY or RULE OF LAW?III. STATE OF EMERGENCY IN CONSTITUTIONS

A. CONCENTRATION OF POWERSB. CONSTITUTIONAL HANDLING OF EMERGENCY

STATUS FORMAL PROVISIONS (GERMANY,ISRAEL) REJECTION/DENIAL (BELGIUM) OMISSION (USA)

PREAMBLEArticle 4 ICCPR 1966

1 . In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6 (arbitrary deprivation of life), 7 (torture), 8 1,2 (slavery and servitude), 11 (debtor’s prison), 15 (lex posterior), 16 (recognition as a person) and 18 (freedom of thought, conscience and religion) may be made under this provision.

EMERGENCY vs. STATE OF EMERGENCYA. DEFINITION OF EMERGENCY

In English, the word “emergency” can be considered broadly overlapping the word “crisis”, “need” and “urgency”; the word “crisis” is more narrowly defined than “emergency” though. In fact, it refers to a time when a great danger, difficulty, or confusion, is at its worst point, and the problem must be solved or important decisions must be made in order to survive.

“emergency” and “state of emergency”. In fact, the former is the factual cause of the latter, which is a precise legal concept. Therefore such terms cannot be confused. It would be as if one mistook the factual cause for the legal effect

A. DEFINITION OF EMERGENCY Emercency can only be defined by contrast to a set of

circumstances deemed to be ordinary. In ordinary times in constitutionally-framed

democracies:1. the polity is able to assimilate the full impact of the

give and take of everyday politics;2. a concrete and definite apportionment of powers

operates in accordance with the constitution.

Emergency breaks the norm being a series of events truly exceptional, in the sense that they must be unforeseen, sudden, dangerous and short-running

EMERGENCY vs. STATE OF EMERGENCY

A. DEFINITION OF EMERGENCYAll the legislative attempts to give the word a substantive and concrete meaning, have failed in the end because it is impossible to encompass all the possible concrete menaces in the word of the law. Not even comparative research can overcome this elusiveness. The basic assumption that underpins the following considerations, is the fact that in times of crisis the system has to assure a ready response to the menace, and thus there can be no restraints of any kind, not even those at a constitutional level in order to defeat the threat.


B. STATE OF EMERGENCYThe systemic and legal reaction to an emergency is twofold. First of all some, if not all, constitutional provisions are suspended, in order to create a new paradigm able to face the crisis. Secondly, the implementation of the paradigm occurs concentrating the powers in the hands of the executive branch. Such a state of constitutional suspension is the so called state of emergency. N.B. not the validity, but only the effectiveness, of the norms is struck


C. A JURISPRUDENCIAL DILEMMA: LAWS OF NECESSITY or THE RULE OF LAW?

Pure constitutionalists (McIlvain, Hoffman, Dicey, Kelsen) the State is totally constituted by law, the source of the state of emergency is inside the Constitution -no matter whether is it stated formally or obtained by deduction- and emergency statuses are juridically produced voids in which the government can act with several degrees of restraints in order to overcome the crisis

Realists (Schmitt, Rossiter, Mortati) “Ausnahmezustand” - "state of emergency“: a state of exception which is supposed to free the executive from any legal restraints. The state of emergency is a space beyond the law, beyond the legal order, revealed when law itself recedes and leave the state, embodied by the sovereign, free to act. (dualist approach: authority-security vs. law)


Scholars have forsaken the search for a formal or tangible definition of emergency status in lieu of a substantive, functional and context-dependent approach because:

1.The situations that can amount to ‘emergency’ are imponderable and impossible to foretell;

2.The definition of State of Emergency changes according to jurisdiction, time and sometimes what kind of emergency arises. Therefore only a case-to-case approach can render a global idea of the concept.

STATE OF EMERGENCY IN CONSTITUTIONS

PARAMETERS OF COMPARISON

… therefore a comparative perspective must focus on what organ the concentration of powers can be attributed to and which institutional (read constitutional) mechanisms should yield and allow to start the related suspension of the constitution (read HRs embedded).


A. CONCENTRATION OF POWERS

• The concentration can be stated either in constitutions or in laws or can be the result of a self-attribution. It does not only operate on an horizontal level (i.e. between the organs and the provisions of a constitution), but also on a vertical level (if the state is federal). Moreover, the ruling organ can even engage in law making.

• As far as the horizontal level is concerned, the great majority of occurrences has shown that the executive branch established in the same constitution is the ‘assignee’ of the powers;

• If the state is ‘federal’, the higher government tends to prevail. However, both the national and the federal levels should constitute a great protection against the concentration of powers. The way in which Federalism provides for this barrier depends. In the US the federal government in years has gained a great control over the singular federated states, beyond what is expressly stated in constitution. Whereas in Germany the local governments retain more control.


B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS

1.FORMAL PROVISIONWeimar Republic

art.482 of the Weimar constitution: “In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary using armed force. In the pursuit of this aim, he may suspend the civil rights described in articles 114, 115, 117, 118, 123, 124 and 153, partially or entirely


• ‘The march of folly’: Would Nazi Germany have have been in breach of Art. 4 ICCPR if it had been ratified before Hitler took the power?

• nowadays, which limits may international law (jus cogens) pose to a State in the same situation? Are they really helpful without enforcement?

B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS1. FORMAL PROVISION

Israel Israel has been under a continuous and chronic state of

emergency since the declaration of independence on may 14, 1948. i.e. even before the election of a Constituent Assembly (1949). Even more peculiar, Israel is ruled by an unicameral legislature with de jure parliamentary supremacy, that acts both as a common legislative branch and as a quasi-Constituent Assembly. In practice it has not been established by any formal constitution. Instead of it, a process of piecemeal legislation took place, resulting in a number of "Basic Laws" - that have a quasi-constitutional weight.

From 1948 (Law and Administration Ordinance) to 1992 (Basic Law – The Government; BLG) the Government ruled assuming both legislative and executive powers from the Knesset (Parliament). In absence of a constitution, the government were even able to modify the so-called Basic Laws. Today more restraints, but state of emergency never revoked.


B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS2. DENIAL

BelgiumArticle 187, title VII, general disposition, affirms: “The

Constitution may not be wholly or partially suspended.”

Is it reasonable? Complete lack of pragmatism. During WW1 it has been breached by the king declaring a sui generis ‘state of siege’.

Today is rendered only as a fundamental preeminent criterion in the interpretation of the constitutional text. In other words, a sort of early warning to the Constitutional Court


B. CONSTITUTIONAL HANDLING OF EMERGENCY STATUS3. OMISSIONUnited States

“[…] since March 9, 1933, the United States has been in a state of declared national emergency. In fact, there are now in effect four presidentially-proclaimed states of national emergency. […]These proclamations give force to 470 provisions of Federal law. These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all-encompassing manners. This […] powers […] confer enough authority to rule the country without reference to normal Constitutional processes.”- US Senators Frank Church and Charles McC. Mathias Jr - Senate Report 93-549, 93d Congress, 1st Session, Report of the Special Committee on the Termination of the National Emergency – Emergency Powers Statutes, provisions of federal law now in effect delegating to the executive extraordinary authority in time of national emergency - , November 1973


• Liberty maximalists. They strongly dissent from the inherent presidential powers doctrine, also believing that constitution provisions can not be derogated unless it is expressly stated. USSC Justice Davis accepted this view in ex parte Milligan.

• National security maximalists. Recall Rossiter’s theorization and affirms that the president during a crisis can act in any way he guesses right in order to save the nation. Those actions are not unconstitutional.

• Liberal theories. Mediation between the principle of the rule of law stricto sensu and the quest for security. An express congressional ratification ex post facto is requested in order to make constitutional unconstitutional presidential emergency powers and regulations. See the Monroe doctrine.

• After two world wars, one cold war and several other conflicts, the national security maximalism with some modifications in practice prevailed. T


• Consider The National Emergencies Act of 1976 and the International Emergency Economic Powers Act of 1977. Regain control over the executive and give certain rational procedures to the declaration of an emergency status.

• Procedure: when an emergency occurs the President must firstly make a declaration, and then explain all the justifications to the Congress in a report. If within six months the Congress neither approve nor refuse this state of emergency, that situation remains in force for one year, unless the president declares its continuation. However, in any time a parliamentary joint resolution can annihilate that emergency status. What it is worth noting is the fact that, in this framework, the only rights that can be suspended are, according to the constitutional text, art. 1 sect. 9 (eight specific limits on congressional power) and the V amendment (abuse of government authority in a legal procedure).

• Nevertheless, those acts, like the Israeli ones, have turned out to be, in praxis, waterholes. In fact it is possible to recognize at least 32 declarations of emergency between the enactment of the provisions and the tragic attacks of 9/11. In the end, the President can easily obtain the congressional ex ante authorization that is, practically, a blank check for the executive.


QUESTIONS?This presentation is an adaptation from

THE ROLE OF COMPARISON TO UNDERSTAND AND DEAL WITH EMERGENCY IN CONTEMPORARY

CONSTITUTIONS Lost in Guantanamo: the fall of the Great Writ of

Habeas Corpus, Paolo Vincenzo Tonini,

Bologna University School of Law, 2009

Health & Medicine

State of emergency in contemporary constitutions p. tonini