a network of constitutionalists from countries throughout the world
Over the coming days, we will be featuring each of the 20 workshops in the 10th IACL World Congress 2018 on “VIOLENT CONFLICTS, PEACE-BUILDING AND CONSTITUTIONAL LAW”, being held in Seoul, Republic of Korea on 18-22 June 2018. Full details are on the congress website, in English and French, along with information on how to submit a paper. Papers may be in either French or English.
WORKSHOP #2 Abuse of the Constitution in Times of Emergency
Many contemporary constitutions include one or more clauses related to a state of emergency. These clauses may alter the normal division of powers, typically between an elected parliament and an executive, or they may allow for derogations from some constitutionally protected fundamental rights. Often the latter type of emergency clauses are modelled along the lines of the derogation clauses in international human rights treaties (ICCPR art. 4, ECHR art. 15, IACHR art. 27), while there is much more diversity as to how a state of emergency may affect the powers and competences of various state organs.
As history has shown, the power to declare an emergency is susceptible to abuse not only in the politically expedient interests of self-entrenchment and the suppression of opposition, but also in order to achieve otherwise contested priorities or policy objectives that would be unattainable in ordinary times in the face of an effective opposition capable of delaying or thwarting them.
Have constitutional designers developed effective mechanisms to constrain the exercise of the power to declare an emergency? Does law have a role in times of emergency? To what end? Should we accept that law has little to say about such a state of affairs—one that is more political than legal? Or should law come to terms with the reality that it will forever remain defenseless in the face of pure power-plays that we often identify with prolonged declarations of emergency? Whether or not law has a role in policing the conduct of political actors during times of emergency, can it be denied that “sovereign is he who decides on the exception,” as Carl Schmitt famously declared?
This Workshop will inquire into the risk of abusing constitutional emergency clauses for purposes beyond what is necessary to respond to the emergency with measures that would legitimately aim at the restoration of normalcy while at the same time effectively containing the threat to the nation. The types of “abuses” we hope to discuss on the basis of papers submitted from Workshop participants include:
• Invoking the emergency clause(s) in the absence of any actual emergency;
• Using an emergency as an opportunity to introduce permanent change, in contrast to temporary measures aimed at the restoration of normalcy;
• Deploying emergency powers to curtail opposition (political parties, new social movements, dissidents, trade unions, free media, indigenous peoples, or minority or religious groups);
• Re-organizing the state administration with the purpose or effect of purging the administration, judiciary or academia of people not regarded as “loyal” to the regime;
• Centralizing powers into the hands of the executive at the expense of the elected parliament or the constituent units of a federal state;
• Breaching non-derogable rights;
• Invoking an emergency for the wholesale suspension of fundamental rights, rather than imposing measured restrictions upon them;
• Introducing restrictions to rights that as such are subject to legitimate derogation but without satisfying the requirements of necessity and proportionality;
• Using the emergency clause(s) to legitimize breaches of the country’s international commitments, including human rights obligation.
This Workshop will be structured around common themes drawn from the accepted papers. It will feature several moderated discussions rather than individual presentations. The Workshop co-chairs will introduce each theme, followed by open discussion and debate among Workshop participants, with time allotted to those authors whose papers relate to a given theme. The chosen themes will be announced to all authors prior to the Workshop, and all accepted papers will be made available online to Workshop participants in advance of the program.
Submissions are welcome from scholars of all levels, including doctoral candidates in law and related disciplines. The Workshop co-chairs will endeavor to assemble a group that reflects a diversity of perspectives, national origins, seniority and methodological approaches.
To participate in this Workshop, please email an abstract of roughly 500-750 words to: IACL.Workshop.Abuse.Const@gmail.com
All abstracts should indicate the name, institutional affiliation and contact information of the author(s). All abstracts should also state clearly the title of the Workshop for which it is intended.