Matthias Lemke (Federal University of Applied Administrative Sciences, Faculty of the Federal Police) will give a presentation on „Talking exception. How democracies justify the need for larger competences“ (presentation in French). You may download the entire preliminary program for the conference „From dictatorship to state of exception“ here. The french speaking conference is organized by Marie Goupy (CIPh / ICP) and Yann Rivière (EHESS) and will take place in the Ecole Française de Rome from May 31st to June 1st 2018.
Matthias Lemke (École supérieure fédérale d’administration publique, faculté de la police fédérale) va présenter une intervention sur „Raconter l’exception. Comment les démocraties justifient la nécessité d’élargir leurs compétences“. Veuillez trouver ici le programme préliminaire du colloque „De la dictature à l’état d’exception“, organisé par Marie Goupy (CIPh / ICP) et Yann Rivière (EHESS), qui se tiendra les 31 mai et 1er juin de cette année à l’Ecole Française de Rome.
On Monday, 19th of March, 11 a.m .– 5 p.m., the Humboldt-Forum will host an international workshop on „Quantitative and Qualitative Approaches to Legal Texts, Legal Practices and Parliamentary Work“. The workshop is organized by the Research Lab „Constitutional Politics in Turkey II“ at Humboldt-Universität zu Berlin. Please find more details in the pdf-file that can be downloaded here.
Das vorläufige Programm zum Panel „Normalisierung der Grenzüberschreitung“ von Annette Förster (RWTH Aachen) und Matthias Lemke (HS Bund – Bundespolizei) ist ab sofort online. Neben den geplanten Vortragstiteln findet sich dort auch der Call for Papers. In den nächsten Wochen werden wir die Abstracts sukzessive ergänzen. Ab dem 1.9.2018 stehen die Beiträge als Volltexte zur Verfügung. Bis dahin werden wir auch über die geplante Veröffentlichung informieren.
Der Blog hat einen neuen Menüpunkt: Unter „Events“ finden sich ab sofort alle anstehenden sowie zurückliegenden eigenständigen Veranstaltungen (Panels, Tagungen) sowie die dazugehörigen Informationen und Materialien.
This paper aims to examine the consequences on democracy of ‘permanent emergencies’ linked to terrorism, through the examples and comparison of France and Israel’s states of emergency. France has already extended the state of emergency, originally declared after the November 2015 attacks, for over a year. Israel has been under a state of emergency since its creation in 1948. In both cases, the existence of a state of emergency allows the government to adopt a number of measures which wouldn’t be legal otherwise.
Terrorism is often treated as an exceptional crime which requires an exceptional response, including the adoption of states of emergency. The changing nature of the terrorist threat requires a flexible legal framework, but there are a number of issues with creating exceptional regimes to deal with it, especially if these exceptional regimes become permanent. Exceptionalism might justify extreme rules and a wider range of measures because usual rules are considered insufficient. Yet, the desire for a symbolic message and swift action against terrorism should not cheapen the strength of existing legal measures, which run the risk of piling up without being actually implemented. In fact, we witness an inflation of terrorism legislation often adopted hurriedly and without proper implementation tools or sufficient budget. In turn, these emergency measures tend to settle in the long run as people get used to a new normal, leading to a slippery slope of what is acceptable. For instance, the new terrorism law in Israel enshrines in regular legislation measures that were, on principle, only applicable under the state of emergency.
In addition, emergency fosters extremes and often targets specific groups of people that can then become ostracized. In turn, this can create a climate of fear and resentment towards those suspected of terrorism, as well as discriminatory measures. States will tend to focus on the external and exceptional threat, instead of addressing long-term and domestic issues, which contribute to terrorism, such as radicalisation and integration.
Finally, under states of emergencies, the executive often adopts the primary role in setting the norms, which puts aside the review role of the judiciary. Yet, both in France and Israel, courts have increasingly become involved in ensuring the protection of fundamental freedoms and the separation of powers under states of emergencies, two intrinsic components of democracies. The paper will examine these three particular issues in the two states, and draw conclusions on the impact of exceptional counterterrorism measures on democracy and the rule of law.
The Italian experience offers some interesting profiles when dealing with the state of exception and emergency situations. The 1948 Constitution – as her predecessor, the Albertine Statute of 1848 – does not provide for any emergency section. However, she provides for instruments to enact whenever a situation of necessity and urgency occurs (mainly the law decree, at Article 77, the powers assigned by the Parliament to the Government in case of war, at Article 78 and the substitute powers of the government, when necessary, of Municipalities, Provinces, Metropolitan Cities and Regions, at Article 120).
The fact that the Albertine Statute did not provided for an emergency section does not have to lead to the conclusion that an emergency situation (or, to use a formulation closer to the French doctrine, a stato d’assedio, état de siège) has ever been declared. The riots in Milan in 1898 or the earthquake in Messina in 1908 witnessed the enforcement of the wartime criminal military code, showing that the Italian legal system accepted the possibility of a legitimate use of extraordinary powers – even against the law – in order to preserve the State and of the legal and social order. The very same aim led King Victor Emmanuel III to appoint Mussolini as head of the government in the aftermath of the March on Rome in 1922.
In the democratic history, other situations happened that required the resort to some sort of emergency power, namely the passing of the legislative decree no. 625/1979, against the left-wing terrorism (the so-called Brigate Rosse, Red Brigades) – strengthening the police powers and compressing suspect rights – and the law no. 225/1992 establishing the Protezione Civile (Civil Defence). Under this second law, the government can pass civil defence orders to handle emergencies. Here the intent seemed more to provide for procedures and structures able to confront emergencies and to make the developments predictable rather than just to assign extraordinary powers.
Besides these ad hoc interventions, the Constitution provides for the instrument of the law decree that the government can enact in situations of extreme necessity and urgency (no further specification on the meaning of the two words is given). The abuse of this instrument made by the governments until the mid-1990s – due mainly to the weaknesses of the parliamentary executive innate in the extremely fragmented party system, the proportional representation and the subsequent coalition governments – shifted the balance from a parliamentary democracy to a so to speak governmental democracy. The long-awaited intervention of the Constitutional Court with the decision no. 360/1996 finally sanctioned this practice as unconstitutional, as in violation of both the prerogatives of Parliament – as the main law-making body – and the certainty of law.
Beside the abuse of the law decree, a more recent practice has been to resort to emergency instruments even in situations not properly of emergency – since not of unpredictable nature – but rather just difficult to handle, such as the 2006 Winter Olympics in Turin or the 2015 Expo in Milan (just to mention a few). In such circumstances the connection to the extraordinary character of the situation is lacking; nevertheless, the government exercises all the same emergency powers.
Furthermore, the present-day economic crisis has provided for further remarks on the twisting of the Italian form of government (and of the form of State, according to some scholars) in situations of emergency, namely with respect to the role of the President of the Republic and of the Constitutional Court.
The active engagement of President Napolitano in the last crisis of government (starting from the Berlusconi’s one in 2011) and as a strong advisor of governments seem to have proved right Esposito’s theory according to which – since the president is given the same powers as the monarch in the constitutional monarchy – it is up to him to actively intervene in situations of emergency. The Constitutional Court too rises some concerns, with respect mainly to a certain number of decisions marking a straightforward intervention in the competence of Parliament and government, when balancing spending review and rights’ protection.
It is convenient to consider further this twisting in the balance of powers in the light of the separation of powers and on the qualification of the Italian present-day situation as within the constitutional legal order of within the emergency.