–Maja Sahadžić, University of Antwerp
On July 18-19 2016, the University of Haifa hosted the International Symposium “Constitutionalism under Extreme Conditions” organized by the Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa and Boston College Law School under the auspices of the Israeli Association of Public Law. The Symposium was co-convened by Richard Albert (Boston College Law School) and Dr. Yaniv Roznai (the Minerva Center for the Rule of Law under Extreme Conditions). The aim of the Symposium was to bring together a group of scholars for a high-level discussion on constitutionalism and emergencies. The Symposium featured seven panels, one poster session, and a keynote speech delivered by Aharon Barak, former President of the Supreme Court of Israel. Each session consisted of two papers presentations. However, the paper authors did not present their papers; the assigned discussants had 15 minutes to critique the paper after which the author had the opportunity to respond to questions over the course of one hour devoted to the paper. This report provides a brief summary of the papers, which will be published in an edited book. Video recordings of the Symposium are available here.
Former President of the Supreme Court of Israel and Professor of Law at the Interdisciplinary Center in Herzliya Aharon Barak delivered the keynote speech entitled Human Rights in Times of Terror – A Judicial Point of View. The keynote address focused on the role of the judges when balancing between human rights, national security, and the security of the state. Barak convincingly insisted that the main role of the judges is to protect democracy. During the course of the address Barak argued, using examples from his rich career, that while human rights protection cannot minimize the security of the state and the national security, at the same time, the security of the state and the national security cannot minimize the human rights protection. In other words, addressing the emergencies cannot minimize the application of the democratic methods when addressing the emergencies. The inspiring keynote delivered a message that in harsh reality the proper balance between these two is of the key importance, but reaching the balance requires persistence and devotion to democratic values.
The first panel was titled State of Exception and Normalcy and featured papers by Kumaravadivel Guruparan (University College of London: Constitutions as Instruments for Normalising Abnormalcy: The Sri Lankan and Indian Experience) discussed by Yair Sagy (University of Haifa), and Ming-Sung Kuo (University of Warwick: From Institutional Sovereignty to Constitutional Mindset: Rethinking the Domestication of the State of Exception in the Age of Normalization) discussed by Eli Salzberger (University of Haifa). Guruparan’s paper explored the argument that the state of exception is a normality of the modern state affecting all citizens indiscriminately. However, when the aforementioned argument is applied in deeply divided societies/states, such as Sri Lanka, it is indicated that the state of exception is used to partake in violent nation-building projects with an aim to co-identify the state and a particular community while dissimilating the rest. Kuo’s paper considered the normalization of the state of exception with regards to the scholarly focus on the idea of institutional sovereignty. He argued that the domestication of the state of exception rests in the introduction of the constitutional mindset in the center of the constitutional framing of the judgement in relation to responsibility.
The second panel titled Constitution-Making featured papers by Manar Mahmoud (Hebrew University: Challenges of Reconciliatory Constitution-Making in Tunisia and Egypt: A Comparative Perspective) discussed by Gad Barzilai (University of Haifa), and Andreas Braune (University Erfurt/Friedrich Schiller University Jena: Authoritative Constitution-Making in the name of Democracy) discussed by Amnon Reichman (University of Haifa). Mahmoud’s paper looked at the political forces in constitutional processes in Egypt and Tunisia in the last three years with an aim to understand the major factors behind the differences between these two. In a reality of striking changes in the political and constitutional structure of these states, discussion followed steady, gradual and widely accepted attempts for reconciliation in Tunisia, and disrupted, exclusionary and failed attempt of reconciliation in Egypt. Braune’s paper explored the authoritative constitution-making process as an effective alternative to democratic constitution-making for the purpose of entrenching well-organized polity. During the course of the discussion, discussants raised an issue of the public choice theory application, contrary to Braune’s historical examples from the French Revolution and the Arab Spring as the examples of the difficulties to establish a democratic polity.
The third panel titled The Next Frontier of Human Rights featured papers by Pedro A. Villareal (Max Planck Institute for Comparative Public Law and International Law: Public Health Emergencies and Constitutionalism: Between the International and National) discussed by Anna Mrozek, and Yoram Rabin (Office of the State Comptroller of Israel), Liav Orgad (IDC Radzyner School of Law) and Roy Peled (The College of Management) (The Law Governing the Right of Enemy Alien’s Access to Courts) discussed by Lukas Hrabovsky (Palacky University Olomouc). Villareal’s paper examined the influence of recent public health emergencies such as the H1N1 influenza pandemic, West African Ebola crisis, and the Zika epidemic on constitutionalism in such scenarios. The discussion especially pointed out the arrogation of powers, or the adoption of certain human rights-restrictive measures, that are not justified from a legal perspective. Rabin’s, Orgad’s and Peled’s co-authored paper considered raising a number of exceptions to the rule that enemy aliens when residing in enemy territory cannot seek redress in courts of the country with whom their own country is engaged in warfare, pointing out that courts refrained from defining the alternative rule but resorted to narrowly tailored decisions. Suggesting a new model with regards to this issues the paper explored the reasons behind hesitance to declare the traditional law void.
The fourth panel was titled Divided Societies and featured papers by Nikos Skoutaris (University of East Anglia) and Elias Dinas (University of Oxford) (The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences) discussed by Maja Sahadžić (University of Antwerp), and Nasia Hadjigeorgiou (UCLan Cyprus) and Nikolas Kyriakou (University of Cyprus) (Entrenching Hegemony in Cyprus: The Doctrine of Necessity and the Principle of Bi-communality) discussed by Ilan Saban (University of Haifa). Skoutaris’ and Dinas’ paper showed that while the aim of decentralization of political autonomy is to accommodate centrifugal tendencies, it may potentially support secessionist forces. The discussion assessed the devolution of legislative competences to the regional level in Spain for the purpose of retrieving empirical information about how subnational elections influence the strengthening of subnational identity. Hadjigeorgiou’s and Kyriakou’s paper explored the dual approach of the Greek Cypriot majority in the constitutional protection of different groups, and the application of the doctrine of necessity to keep the constitution up to date, but highlighting the unamendable nature of certain constitutional provisions.
The fifth panel titled Economic and Financial Crises featured two connected papers by Antonia Baraggia (University of Milan: The ‘Judicialization’ of Emergency: The Case of the Eurozone Crisis) discussed by Daniel Benoliel (University of Haifa), and Elisa Bertolini (Bocconi University of Milan: Financial Crisis as a New Genus of Constitutional Emergency) discussed by Suha Jubran Ballan (University of Haifa). Baraggia’s paper assessed the role of the judiciary at the European Union and national level during the Eurozone crisis. By comparing the attitudes of national constitutional courts and the Court of Justice of the European Union the participants aimed to explain the unresponsiveness of the CJEU to invalidate emergency measures, and effectiveness of national supreme courts in the fundamental rights protection. Bertolini’s paper considered whether it is possible to equate an economic crisis with a traditional emergency or it is a new genus of the constitutional emergency. The discussion examined the crisis-related measures adopted at the European and national level with regards to proportionality, transparency, accountability, non-discrimination, supremacy of rights and democratic principle.
The sixth panel was titled Actors in Constitutional Change and featured papers by Fatih Ozturk (Istanbul University: Again: From 1867 to Today, Making a Constitution under an Elite Umbrella in Turkey) discussed by Guy Lurie (University of Haifa), and Tilmann J. Roder (Max Planck Foundation for International Peace and the Rule of Law in Heidelberg: Militaries as Actors in Constitutional Change Processes) discussed by Ricardo Sousa da Cunha (Service of Legal and Constitutional Affairs of the Presidency of the Democratic Republic of Timor-Leste). Ozturk’s paper explored the historical influence of the extremist elite powers on the adoption of the new constitution in Turkey. Discussed at the moment when the military coup was taking place in Turkey, the discussion mainly revolved around whether the new constitution will eliminate the imbalances between high military officers and the nation as a whole, as well as around the after coup measures taken by the state institutions. Roder’s paper showed that militaries in many countries play a significant role in constitutional politics. Roder used Egypt, Myanmar, Pakistan, Thailand, and Turkey for the analysis of the mandate of the armed forces and the civil-military relations from the constitutional angle.
Just before the seventh panel, the poster session took place. Five papers were presented. Maja Sahadžić (University of Antwerp) presented The Constitution of Emergency, Reasons Behind Asymmetrical (Constitutional) Arrangements in Bosnia and Herzegovina where she explored multi-tiered multinational systems with asymmetrical solutions which are often introduced to reconcile diversity. She aimed to determine reasons behind the asymmetry, and whether the asymmetry has a potential to accommodate diversity in conflicting societies. Ricardo Sousa Da Cunha (Service of Legal and Constitutional Affairs of the Presidency of the Democratic Republic Timor-Leste) presented The Constitutional ‘Big Bang’ in Timor-Leste where he followed the events after an attempted coup in Timor-Leste in 2008. He showed the extreme conditions for the emergence of the Constitution in Timor-Leste where the emerging constitutional order faced a social and political context with traditions and values different from those it was created in. Lukas Hrabovsky (Palacky University Olomouc) presented Emergencies and Constitutional Rights in a Time of Terrorist Threat in the Czech Republic: Do We Need a New Dimension of Emergency? He mapped the discourse in the relations between emergencies and constitutional rights with regards to the terrorist threat answering the question whether the state of emergency is sufficient enough to deal with the terrorist threat. Joshua Segev (Netanya Academic College) presented Detaining Unlawful Enemy Combatant in Israel. A Matter of Misinterpretation? He argued against the territorial and over-individualized interpretation given to the 2002 Unlawful Enemy Combatant Act. Patrick Graham (University of New England) presented In Pursuit of Power: the Common Law Constitution where he looked at how policymakers designed a regulatory framework of emergency power in Great Britain during the period 1914-1926, and source of this constitutional power.
The seventh panel titled Political Emergencies and Political Trauma featured papers by Dante Gatmaytan (University of Philippines: Reluctant Radical: Political Trauma and Judicial Review in Post-Marcos Philippines) discussed by Joshua Segev (Netanya Academic College), and Ioannis A. Tassopoulos (University of Athens: Political Emergencies as Challenges to the Impartiality of Public Law: A Defence of the Constitutional Stability of Practical Reason Based on Greek Experience) discussed by Patrick Graham (University of New England). Gatmaytan’s paper explored the power of the judiciary to review the factual bases of emergency powers in the post-Marcos time. During the course of the discussion Gatmaytan emphasized the attitude of the Philippine Supreme Court in avoiding its responsibilities and making the judicial review the final, and not a primary remedy for the abuse of executive power. Tassopoulos’ paper explored the endurance of democratic constitutions tested by the ability of the state to take the necessary measures, and the political system’s ability to deliberate and resolve the political conflicts according to the rules of the game. The discussion turned towards the government being in tension with Carl Schmitt’s decisionism over emergencies, and the excessive voluntarism of constituent power.
There cannot be a real conclusion to the question of constitutionalism under extreme conditions. The collection of papers certainly explores this topic from different perspectives. The papers most certainly help us to understand the complexity behind the extreme conditions, and the consequences that have an effect–or not–on the durability of constitutionalism. Finally, from whatever perspective approached, there seems to be no doubt that constitutionalism under extreme conditions is not an exceptional phenomenon. In the end, the most important goal of the Symposium has been reached, which is to contribute to the dialogue on this phenomenon.