Archives For State of emergency

This essay was written as a take-home exam for States of Emergency, Emergency Powers and Liberal Democracy at Copenhagen University, under Professor Ebrahim Afsah, which received a perfect score (12/12).  The essay was in response to the following question:

Contrast the emergency provisions in the German, Japanese, and United States constitutional order. How would you classify their respective approaches, what would you consider to be the main functional and normative needs answered by the particular instruments, and how would you assess their relative strengths and weaknesses? 

German, Japanese and United States emergency provisions

In response to exceptional circumstances, there are, at the most basic level, two different types of response: reacting outside of the usual legal system or acting within the existing legal system – using Ramraj’s terminology, an “accommodative” or “business as usual” (“BAU” approach).[1]  This essay will attempt to classify the German, Japanese and US approaches through the aforementioned frame, hypothesise on the normative and functional needs which these systems service and compare the strengths and weaknesses of each system both theoretically and within its own context.

World War I Army Biplane

Different emergencies require different responses within different contexts

Germany

A classic model of constitutional accommodation of emergency powers

The German system of emergency powers would be classified as an accommodative constitutional model.  It consists of four emergency states: the Verteidigungsfall[2], Spannungsfall[3], internal emergencies[4] and legislative emergencies.[5]  Each of these emergencies was associated with different powers.  This system, further, allows for the combatting of opponents to the liberal democratic order through the idea of “Wehrhafte Demokratie[6]

To understand the normative role played by the emergency provisions in the German Basic Law, an analysis must include a reflection on the history that shaped it.  Following a crushing defeat in the First World War, the Weimar Constitution[7] was enacted in 1919, with strong emergency provisions in obvious response to the security threats of the time.  Notably, the Weimar Constitution provided sweeping powers to the Reich President in an emergency, coupled with an extremely broad definition of an emergency sufficient to trigger such powers.[8]  This provision was abused by the Weimar republic, and eventually allowed republic to become an authoritarian regime.[9]  It is the spectre of such an abuse and domestic and international pressure following defeat in the Second World War that the current constitution was written.[10]  The Basic Law’s reflection on horrors of the Second World War are apparent, with the first thing mentioned being an affirmation of human dignity,[11] and the first Part creating rights inviolable even when an emergency has been declared.[12]  In 1968, amongst a backdrop of growing student unrest, the Bundestag amended the constitution and created a system for emergency powers.[13]  However, this system had learned from the flaws of the Weimar emergency provisions, there were sufficient checks and balances so that it could not, easily, be abused.  Thus, there are two central normative roles played by the German Basic Law.  Firstly, the strong constitutional rights that are non-derogable even in times of emergency serve to reassure the German people, and the international community, that the horrors of the Second World War could not be repeated.  Secondly, the allowance for emergency powers, even powers as controlled and pre-planned as those in the Basic Law, increase Germany’s sovereignty that was denied to the nation in its inception.[14]

The specific powers, and checks on such powers can also be seen as having a functional role in protecting the German constitutional order.  Much like the ancient roman dictatorship model,[15] there were checks on the timeframe allowable for an emergency,[16] limits to the laws that could be made during an emergency (the Basic Law could not be changed or abrogated)[17] and the usual constitutional order must remain intact.[18]  These checks serve the functional role of restricting the possibility of abuse of the emergency system.  Further, during a state of defence, if the legislature is unable to meet, they are replaced by a “Joint Committee” – a group of ministers chosen ahead of time – to take on the duties of the Bundestag and Bundesrat.  Here, there is a functional threat: the inability to pass law because the legislature cannot assemble, and this is solved with a system more liberal than the Roman model: instead of the executive taking over, a smaller legislature takes on the role.  Finally, the German system does allow for the use of the military and the border police internally during internal emergencies,[19] serving the obvious functional role of a physical response to a threat.   Thus, we can see that the German system has an ex ante approach to functional challenges: predicting and defining the scope of such challenges and responding with appropriately limited emergency measures.

The strength of such an ex ante approach would be threefold.  Firstly, the emergency requirements may be discussed ahead of time, during peace: thus, they can be discussed in full, and prove to be more comprehensive and well debated than ex post approaches.  Secondly, the explicit and controlled nature of the emergency provisions lends legitimacy to the constitution, and to the provisions.  Finally, the multi-level system employed by Germany seeks to balance rights with emergency provisions, allows the populace the final say (it allows the right to resist unconstitutional practices) and minimises the extraordinary powers allowed to the different governmental organs.  The weakness of the German approach comes through its rigidity: whilst it has served well so far, there may be a situation which was unaccounted for in the drafting process whereby the current system would limit the government’s ability to respond legally.

Japan and the United States

Two different approaches to the “BAU” emergency response

Both the Japanese and the United States Constitutional systems can roughly be classified as BAU approaches – neither has an explicit system of constitutional emergency powers.  However, both of these systems have found their own way of dealing with emergencies.  The Japanese system uses administrative guidance – “extra legal” orders given to large players in the economy.  The US system uses a mix of constitutional interpretation, legislative and administrative action to allow greater flexibility during an emergency.

The BAU system satisfies an important normative goal: it expresses a commitment to legality and to the rule of law where emergency provisions could potentially jeopardise them.  The Japanese constitution was written by the US after the Second World War, limiting Japan’s sovereignty by disallowing the creation of a military and by not providing for emergency powers.  Unlike Germany, however, Japan made a normative decision not to try and increase sovereignty, but to wholeheartedly adopt the western constitutional system imposed on it.[20]  Thus, the decision not to amend the constitution to allow for such powers serves to underline this commitment.  The US constitution was created at a time of emergency – thus, the ordinary system foreseen in the constitution is deemed to allow for appropriate responses to extraordinary threats within the constitutional system.  However, some flexibility is afforded through the “War Powers” afforded to the executive.[21]  The US commitment to reacting to emergencies within the law is highlighted by the case law on the matter, with the judiciary disallowing the exercise of power outside the areas usually afforded to each organ of government.[22]  This commitment to the constitutional limitation on government power reflects a normative commitment to rights and liberties.  Thus, the Japanese and US system of emergency powers highlight the importance of the rule of law within both countries.

Whilst the Japan and the US do not have constitutional systems for managing emergencies, they are both still subject to extraordinary circumstances.

In Japan, responding to the “oil shock” of the early 1970’s, the government had no constitutionally sound instrument to guarantee oil prices to maintain economic stability.  Thus, the Ministry of Trade and Industry, on behalf of the government, instructed the major oil companies in Japan to ignore the relevant competition law and fix prices at an acceptable rate.[23]  The companies were protected from litigation as long as they disobeyed the competition policy under the advice of the ministry, and without looking to personal profit – the illegality of their action was precluded by the instruction.[24]  Thus, the instructions take on an extra-constitutional quasi-legal role.  This instruction takes the functional role of responding to the crisis despite the normative choice of Japan to be bound strictly by its constitution’s limitations.

In the US, unlike Japan, the executive did attempt to access the limited doctrine of “war powers” in response to the economic crisis of the Great Depression, by analogising the crisis to a war. The Supreme Court stated that the organs of government, even in a time of war, could not exceed their constitutional powers, although the powers could be construed more broadly then in usual circumstances.[25]  Thus, the first of the US’s deviations from a strict BAU approach is revealed: whilst the US’s normative commitment to constitutional integrity forbid exceptional powers, they do allow increased depth of power within existing categories as a functional response to emergencies.  The second deviation is through legislation: there are currently more than 250 emergency laws enacted by different legislative bodies in the US.[26] Finally, administrative and procedural changes, alongside changing common-law requirements regarding criminal offences relating to Terrorism, highlight the third, informal and extra-constitutional response in the US to an emergency.  These three techniques highlight a functional need for exceptional powers in extraordinary circumstances.

The functional need for responses to extraordinary circumstances is met within the Japanese and US iterations of the BAU system – accommodation outside of the text of the constitution.

The Japanese and US systems show their normative commitment to the supremacy and universality of their constitutions.

The Japanese system, further, works extremely well within the cultural and socioeconomic frame of Japan.  Where administrative guidance can work in Japan, where the legal system and its participants look to the purpose, rather than the strict wording of government enactments, it would not work in the US or Germany, where strict formalism is the legal norm.[27]  In the Japanese context, the administrative guidance system allows a low-friction, responsive government power to respond to emergencies.  However, its weakness comes from its ad hoc nature, which reduced the legitimacy of the use of exceptional power.

The strength of the US system comes from the strength of its judiciary.  Whilst vague extraordinary powers would lead to an imbalance of power in many countries, the US judiciary is strong enough to enforce its limitations.  Although there were a few Presidents who believed that their power extended further than they did (e.g. Nixon’s famous statement from his interview by Frost: “Well, when the president does it, that means that it is not illegal”), the judiciary has been quick to limit the actual use of such powers.  Further, the flexibility has allowed a functional response to some threats, although the administrative and procedural approach applied in response to terrorism may have done more harm than good.  This highlights, in effect, the limitations of the US system: the vagueness of the boundaries of legality in states of exception allow for misuse and misunderstanding of the scope of the government.

Conclusion

The German system of emergency provisions is a strictly constitutional system of accomodation.  The Japanese and US systems are different varieties of extra-constitutionally flexible BAU systems.  Whilst the German system might provide more functional certainty, and the Japanese and the US systems might provide more normative currency, each system responds well to its own environment.  The German Basic Law was written under intense international pressure, but grew, with the nation, into a system which allows for emergencies, but in a strictly legalistic way.  The Japanese constitution was imposed on it, and has been largely unmodified, however, the method of its application is uniquely Japanese, with “guidance” being issued formally, and, usually, being followed in a manner that benefits the nation.  The US constitution was created in a time of conflict, and incorporates many powers which would allow a constitutional response to emergencies.  Where the US has been faced by an emegencies, it has responded by an organ of government taking leadership and responding to the situation: usually the executive as checked by the judiciary, but, with the modern threat of terrorism, the response has been within the executive, legislature and judiciary.  It is impossible to assess the strength of these systems outside of their national and historic contexts, but it seems that each system is uniquely adapted, and quite effective, within its own context.

After the jump: Footnotes and Bibliography 

Continue Reading…

Advertisements

This essay was written as a take-home exam for States of Emergency, Emergency Powers and Liberal Democracy at Copenhagen University, under Professor Ebrahim Afsah, which received a perfect score (12/12).  The essay was in response to the following question:

The discourse on emergency provisions is often framed as a trade-off between liberty and security. Do you believe this presumed dichotomy is always accurate? How does the socio- economic condition of a given state and society affect your assessment?

Emergency provisions are the departure from the ordinary constitutional or legal order in response to extraordinary circumstances.[1] A structured system managing emergency powers (constitutional, legislative, judicial, or even merely cultural[2]) allows for flexibility in response to a crisis.  Traditionally, such a system would increase the power of one organ of government,[3] expedite the decision-making system,[4]or reduce civil protections[5] to allow for an effective preventative policing system.  As Ramraj points out: creating a system that allows for States of Emergency not only provides a source of legality for the extraordinary empowerment of states, but also restrains the state by limiting the application and scope of such powers.[6]  However, there has been increasing academic focus on the potential misuse of states of emergency by governments.  As such, there has been a shift in analysis from Emergency powers as a tool to restore constitutional order to a dichotomy: a balancing act between liberty and security.

This essay will analyse this hypothesised dichotomy doubly.  First, this essay will discuss where the idea may hold: liberal democracies, focussing on the US experience with terrorism.  Secondly, this essay will discuss where the idea fails: where non-liberal polities and developing nations implement states of emergency – focussing on the Chinese and East Timorese experiences.

[Assemblage of the Statue of Liberty in Paris.]

Liberty and Security are not always dichotomous, especially in non-liberal polities

Liberal Polities

The United States, terrorism and the trade-off between liberty and security

Since the status quo of liberal democracy is a peaceful society where the rule of law is respected and rights are protected, a focus on preserving these rights is natural.[7]  This essay will discuss the US system, as an example, to show how rights may be infringed by states of emergency, and whether there is a direct relationship between liberty and security.

The US system of emergency provisions is quite complex.  On its face, it seems that there is little scope for emergency powers in the US constitution.[8]  However, in practice, the US judiciary[9] and legislature[10] has allowed emergency provisions in quite a few circumstances.  The cases outlined in the Chesney article[11] outline the convergence of criminal and military legal practice.  On the one hand, pressure has been used successfully to require increasing standards for military detention – arguably an increase in liberty for the captured with a potential decrease in security for the nation.[12]  On the other hand, procedural requirements for civilian, criminal prosecution have decreased.[13]  These decreases include allowing guilt by association[14] as well as increasingly accommodating government requests for secrecy, even to the detriment of the accused.[15]  In the spirit of the American liberal ideology, it began to extend rights to military trials (that more often than not, involve non-nationals). However, in the name of security it reduces protection in the criminal system (which targets domestic crimes, usually involving nationals).  Thus, here, a Liberty-Security analysis highlights an absurd result: liberty is becoming the focus of external efforts, and security the focus of internal efforts, quite the opposite of that which is expected.

Thus, the US system shows that a Liberty-Security analysis can be interesting.  However, whether the two are dichotomous is not clear, since there is merely a correlation shown.  More importantly, there has been no proof that the decrease in liberty allowed for in the emergency provisions has had any effect on increasing security: in reality, the decrease in legitimacy caused by the provisions outweigh the small gains in possible prosecutions caused by these provisions.

Non-Liberal Polities and Developing Democracies

China and East Timor: assumptions in the liberty-security model

This section will analyse the dichotomy hypothesis from two angles: where there is no government aspiration towards liberalism (China) and where the rule of law is still to be established (East Timor). In both situations, the dichotomy between security and liberty is not central to the population, and the relationship between the two is even more tenuous than in the US.

China has developed a different social contract to that which is standard in liberal polities.  In China, under Mao, China’s fear of resorting back to the lawlessness of the early 1900’s (colonisation by Japan, civil war), the Party ruled with an iron fist, and the populace accepted that.  Even where it wasn’t, any dissent was briskly dealt with, often without any resort to legal authority for such actions.[16] Since the Cultural Revolution, and, especially in the past 30 years, a new social contract has taken the forefront.  Whilst fear in the populace was the motivator before, now, economic growth has allowed the government its power.[17]  Thus, the goal of the government, with the implicit consent of the populace, is maintaining economic growth.  One way it has managed to do this is by instituting rule by law.[18] Whilst, at times, groups of people in China have shown that they value liberty, it seems that it is not the central focus of the populace, or at least of their pragmatic relationship with the current political system.  Thus, if liberty is a secondary goal to economic growth,[19] this essay argues that a Liberty-Security analysis is not the most appropriate measure for China’s use of emergency powers.

In China, a constitutional legalism was put in place primarily for the sake of legitimacy.  However, this essay will argue that the system of emergency powers allowed Chinese constituents their current legal liberties – a situation whereby security and liberty were not dichotomous, but, rather, complementary.  In 1976, the Chinese government uses the army, without legal basis, to establish order.  In 1982, a new constitution was put forth with Emergency Provisions.  Deng Xiaoping used these provisions as opposed to arbitrary rule, as part of a commitment to law.  Thus, whilst during the application of the emergency provisions (such as in the response to the 1989 student protests) liberties may have been sacrificed for the good of the state – but these liberties would not exist if the government did not have the flexibility of emergency provisions to tempt it to rule by law, rather than rule arbitrarily.   Even though China’s aims are not the rule of law, or liberality, there has been further reform to the Emergency Provisions system, with the “Law on Martial Law,” “Emergency Response Law”[20] and the 2004 constitutional amendment increasing the controls on the government. [21] Thus, in the Chinese case, the population was only granted liberties in peace-time, as well as in emergency, because the government felt comfortable granting them because of the availability of emergency provisions.

East Timor was born in conflict,[22] in the shadow of a hostile Indonesia and a long history of colonisation.  The nation, however, had aspirations of constitutionality.[23]  The two times where a state of emergency was declared were in response to existential threats.[24]  The state declared emergency legally.  However, these provisions were also created to minimise the impacts on the liberty of the populace – e.g. a curfew was put in place instead of other more draconian measures to restrict movement.[25] Further, the emergency powers allowed constitutionally were extremely strictly controlled, in order to prevent abuse: time limitations were in place, the Human Rights Ombudsmen could not be closed and other controls were still in place.[26]  Thus, the damage to liberty in the name of security in emergency laws was to be controlled.  In the US, the threats countered by emergency provisions exchange security for liberty within the state system, in a country like East Timor, the threats to the nation are existential.  If the emergency provision fails, the state may fail, and any liberties or aspirations to the rule of law would be jeopardized.

China and East Timor differ significantly from the US, and any analysis of emergency provisions should reflect these differences.  A simple Liberty-Security analysis would fail to reveal the complexity in China’s “legal experiment” or East Timor’s this nascent democracy. In the US, we can judge the Liberty-Security dichotomy in a simple binary system: where the emergency provisions are in force and where they aren’t.  In the case of China, the analysis must be more nuanced:  one must judge the balance between liberty and security on a different binary system, where the emergency powers are in force, or where the government ceases to experiment in legality and returns to a Mao-like arbitrary rule.  Similarly, in East Timor, the analysis must take into the account that without the use of emergency provisions, the state may cease to exist, with any aspirations to liberal democracy, any rights gained so far and any semblance of rule of law going with it.   Without the emergency provisions, rights and protections tangential to the legal order protected by the provisions would disappear: thus, the hypothesis of dichotomy fails in the case of China and East Timor.

Conclusion

The hypothesis of dichotomy is not universal, but may have a limited application

This essay has shown that in liberal democracies such as the US, the hypothesis of dichotomy may hold: emergency provisions do tend to increase security and, at the same time, reduce liberties.  However, even in the case of the US, this analysis proved simplistic – in sacrificing liberties in the name of security, the US may have increased its security threats by losing legitimacy.  Further, in the face of non-liberal polities and aspiring democracies, this dichotomy does not hold except for in the simplest of analyses.  In China, without access to emergency provisions, the government may not have even aspired towards rule by law.  In East Timor, the rule of law may have fallen apart were it not for emergency provisions.  In each case, the liberty and security increase hand in hand, not in the inverse manner proposed by this hypothesis.  This result may be explained by the normative goals of the government and the socioeconomic zeitgeist of the nation applying emergency laws, as well as the magnitude of the threat.  In the US, with a normative underpinning in the rule of law, and a country rich and developed enough to be resilient, the analysis may prove an effective tool for the populace and academia to judge proposed emergency provisions – is the citizen willing to give up this liberty to protect against that security threat?  In China, which lacks such a normative underpinning (instead being focussed on real and tangible increases in output) such an analysis fails to account for the fragility of the government’s attachment to law.  In East Timor, a nation in a fragile socio-economic state – where there is little resilience in the rule of law, such an analysis fails to account for the loss of liberty associated with the loss of the rule of law.

The dichotomy hypothesis may be an important tool, but it is a tool with a scope limited to established liberal democracies with the rule of law and socioeconomic sophistication.  The inverse relationship between liberty and security in emergency provisions may be helpful, but it is by no means universal.

After the jump: Footnotes, Bibliography and Related Articles

Since the beginning of  February, after spending the summer in Sri Lanka and India, I have been living in Copenhagen, and studying at the University of Copehnagen, Denmark, on exchange.

Finding home

When I arrived, in clothes more appropriate to Goa than to Scandinavia, I immediately caught a train to the city and wandered around, somewhat uselessly, trying to find my Kollegium (residential college).  I found the cool new modern one – Tietgen – I found the university’s main campus, I seemed to find anything but my place.  Finally, giving up, I jumped into a cab, who could at least  ask strangers in Danish where we were going.

So, the sun was beginning to set on this beautifully Baltic day and I arrived at my college … only to find that my residential contract didn’t start for a few days yet!  I dropped my bags off at the rooms of some random, but awesome, American mates I made on my way to the College, and, in a panic, I called Sarah, my awesome friend from Australia, who would also be my roommate in college.

She told me of a “Generator Hostel” in town which had a few rooms to spare, and off I was!  A bit of negotiation with the lady at the front desk and I was put in a 6 bed dorm that was empty, a private room for a fraction of the price!

A few days later, after the contract started, after a tour around the college by this massive creeper of an Argus Filch type character – our college’s caretaker, I got to see my room.

When you walk in the door, there is an awesome modern kitchen/living area filled with top class appliances and wonderful things.  Everything built-in seems to be great quality.  Everything that is replaceable seems to be Ikea.  There is lots of light, and the place looks really promising!

My room is a little spartan, a snug single bed, a small desk and a dresser, that is it.  No ceiling lights, just a lamp – quite dark, but quite big.  Good enough for me, especially after my time in the subcontinent.  One thing though, the lack of light has me studying much more in the common areas than in my room.

My roommates are spectacular:

  • Sarah – my awesome friend from Australia
  • Paul – a tank American both from New Jersey and Texas
  • Nanna – a Signalhuset veteran who is Danish

We cook and eat and party together, and we are a really great bunch!

The University

University of Copenhagen

Image via Wikipedia

I am a student at Copenhagen University, an old university built right into the centre of the city.  Where UTS has it’s ’70’s brutalist tower, CPH U has its more than 100 year old buildings, and annexes where we study.

This semester I am studying three subjects, each taught in a seminar style (do lots of readings before class, discuss and apply them in class – no “lecture” to give you all the info if you are lazy).

The first is World Trade Organisation, easily my favorite class so far.  The professor has practical experience in the WTO, and is extremely dynamic and inspiring.  WTO law is different to most international law – its cases make it exciting! And, the cherry on top, each week we moot the case we read, giving us an even greater insight into the reasoning and judgments.

The second class is States of Emergency, Emergency Powers and Liberal Democracy.  This class is intense – three hour lectures after reading approximately 150 pages a week, each week dealing with many models and at least a few examples of the application of these models.  Although it is quite a hectic subject, it is also extremely fascinating.

Finally, I also study Rights of the Child in International Law.  This class, like most basic international law classes, is quite obtuse.  It teaches us why we have the conventions we do, how people are still breaching them, and why we can’t do anything about it.  It is a little depressing and filled with cultural relativism, but I hope that once we got onto the topics that have been litigated – namely Child Soldiers, that the subject will improve.

I’ll keep you all posted!