Legality and Semi-Legality: ‘Models of Accommodation’ and ‘Business as Usual’

Chapter 4
Legality and Semi-Legality: ‘Models of Accommodation’ and ‘Business as Usual’

Most traditional or liberal approaches to emergency powers maintain that extraordinary or exceptional provisions are compatible with legality, or at least can be made so. Blatant or unfettered recourse to authoritarian measures are depicted as being kept within the bounds of law, even if the legal framework is stretched in totalitarian directions or partially suspended to deal with perceived or purported crises that challenge the existing socio-economic order. These models are also generally presented as preserving the constitutional order, regardless of whether they, in fact, enable violent repression of popular discontent and/or help pave the way for more authoritarian forms of rule.

According to the typology of Gross and Ní Aoláin, two broad positions exist among these approaches. Models of accommodation were said to ‘countenance a certain degree of accommodation for the pressures exerted on the state in times of emergency, while, at the same time, maintaining normal legal principles and rules as far as possible’. On this view, ‘when a nation is faced with emergencies, its legal, and even constitutional, structure must be somewhat relaxed (and perhaps even suspended in parts)’ (Gross and Ní Aoláin 2006: 9). The focus is on upholding and legitimising the prevailing order by sanctioning supposedly temporary resort to dictatorial measures.

Business as usual models insist that ‘ordinary legal rules and norms continue to be followed strictly with no substantive change even in times of emergency and crisis’ (Gross and Ní Aoláin 2006: 10). As Gross and Ní Aoláin noted, such models are often criticised for disregarding ‘the reality of governmental exercise of extraordinary measures and powers in response to emergencies’. Both models rely on ‘an assumption of constitutionality that tells us that whatever responses are made to the challenges of a particular exigency, such responses are to be found and limited within the confines of the constitution’ (Gross and Ní Aoláin 2006: 10). Such assumptions are predicated on restoring the stability and political legitimacy of the capitalist economic and legal system.

‘The Principle of Legality’

While various tactical debates occur within this framework, the underlying concern is to maintain the edifice of legality. Characteristic in this respect was a volume of essays entitled Emergencies and the Limits of Legality (Ramraj 2008). Despite the manifold differences that the 16 authors had with each other, they shared a common commitment, ‘in some fashion’, to ‘the principle of legality’ (Ramraj 2008: 3). The editor explained that central to their conceptions of legality was ‘the notion that any power exercised by the state must be authorised by law. This is the essence of modern, constitutional government’ (Ramraj 2008: 4).

Ironically, the editor chose as his authority for that proposition Professor A.V. Dicey, the British constitutional writer of the late nineteenth and early twentieth century. Dicey’s apologetics for the British doctrines of necessity, martial law and Acts of Indemnity, adopted to protect brutal exercises of state repression, both at home and abroad, are considered later in this chapter.

Another extraordinary claim was that, ‘wartime courts’ aside, ‘the importance of upholding legality in times of crisis has been eloquently defended by judges around the world’, even if ‘sometimes in lone dissent’ (Ramraj 2008: 5). Actually, the overwhelming record of the judiciary, whether in declared periods of war or not, has been to agree with, or accede to, the draconian actions of governments. Oftentimes they have formally recited the need to respect the ‘rule of law’ while handing down judgments that either sanctioned the abuses in question or stopped carefully short of impeding the executive in practice. In other cases, as documented in Chapter 3, they have blocked attempts to challenge abuses.

Many other examples could be cited of judicial complicity. While a US Supreme Court majority eventually upheld the right of Guantanamo Bay detainees to mount habeas corpus challenges to their incarceration, no prisoners had to be released as a result (Boumediene v Bush 553 US 723 (2008)) (see Chapter 8). Likewise, in a pivotal case on unlawful detention, the English House of Lords declared, by an 8–1 majority, that the courts had to defer heavily to the views of the executive government in ‘assessing the strength of a general threat to the life of the nation’ (A v Secretary of State for the Home Department [2004] UKHL 56) (see Chapter 10). And the Australian High Court upheld the use of control orders, a form of detention without trial, on the basis that the court was obliged to accept as ‘notorious facts’ that the Commonwealth faced unparalleled dangers from terrorism after 9/11 (Thomas v Mowbray [2007] HCA 33) (see Chapter 9). The ‘Jamaican affair’, discussed in this chapter, is yet another damning illustration of the historic role of the judiciary.

Whatever their divergences, the essayists were concerned to counter Carl Schmitt’s open assertion that a state confronted with a violent emergency cannot remain faithful to law. Schmitt was described as a ‘Nazi philosopher’ (Ramraj 2008: 4). This is to erect a straw man. In reality, Schmitt was not simply a Nazi. He was a defender of the Weimar Republic of 1919 to 1933. Amid the revolutionary convulsions that followed the horrors of World War I, he developed his totalitarian arguments in an attempt to maintain that so-called ‘democratic’ capitalist order, particularly against socialist-minded workers. After the 1929 Wall Street crash ushered in the worldwide Great Depression of the 1930s, Schmitt also sought to forestall the Nazis, but ultimately preferred their dictatorship, which he worked energetically to legitimise, to the threat of a working-class uprising (see Chapter 5).

The inspiration for the range of theoretical and practical responses contained in the volume was said to be the Gross–Dyzenhaus debate, which advanced ‘competing models for preserving legality in times of emergency’ (Ramraj 2008: 6–8). Gross articulated the extra-legal measures model that provided that officials must occasionally step outside the constitutional order to deal with grave threats, so as to strengthen the legal order. Dyzenhaus objected that this model permitted egregious departures from ‘the principle of legality’. He urged faith in the capacity of judges and the ‘moral resources’ of the law to sustain a ‘rule-of-law project’ even when the legal and political order was under great stress. That was so, even if this project required ‘imaginative experiments in institutional design’ to transcend a rigid separation of powers in order to enable cooperation between the judiciary, executive and legislature (Dyzenhaus 2008: 64–7).

Some contributors to the volume, such as Tushnet and Lazar, contended that factors apart from law – including politics, informal power and discretion – regulate and constrain state power in emergencies, partly because of the poor record of the courts. Lazar conceded that formal adherence to legality can camouflage arbitrary abuses of power (Lazar 2008: 166–70). Other authors gave greater weight to political and sociological calculations; but all argued for legality, although often as an issue of expediency and political legitimacy. Pointing to Irish experiences, Colm Campbell cautioned that indiscriminate use of emergency powers ‘can have radicalising effects by reinforcing a sense of membership of a victimised community, particularly in quasi-ethnic conflicts’. A visible commitment by the state to legality can have an ‘indirect damping effect’ on conflicts (Campbell, C. 2008: 186, 188).

The ‘Ordinary Law’ Approach

In the same volume, Tom Campbell stated his preference for a ‘business as usual’ model, provided that it permitted some ‘extreme measures’ in the name of combating the supposedly extraordinary threat of contemporary terrorism (Campbell, T. 2008: 202). In keeping with his ‘prescriptive legal positivism’ approach, he weighed in against expanding the ‘rule of law’ concept beyond the enforcement of ‘authoritative rules’ that can be applied without drawing on moral judgments. Campbell contended that judicial review on the basis of fundamental constitutional rights, by ‘out of touch constitutional courts’, may be ‘insufficiently responsive to changed and catastrophic circumstances’ (Campbell, T. 2008: 221). He rejected the positions of both Dyzenhaus and Gross:

Dyzenhaus fears that Gross would leave us in a legal grey hole, that is, a sphere of executive power that is largely without legal constraint. Yet, the alternative he presents is arguably worse in that it creates a political grey hole in which unaccountable judicial power is exercised in a way that undermines political responsibility. Within democratic theory the Gross-Dyzenhaus debate does not represent us with an acceptable choice. (Campbell, T. 2008: 228)

By ‘democratic theory’, as he made clear earlier in his essay, Tom Campbell meant the prevailing parliamentary order. He argued that emergency legislation could be drafted to appropriately anticipate a broad range of emergencies, and supported Tushnet in calling for parliaments, as well as courts, being required by any emergency legislation to endorse an executive declaration that a state of emergency existed (Campbell, T. 2008: 219). Another alternative, Campbell suggested, was that offered by Kent Roach.

In his essay, Roach maintained that the ‘ordinary law of emergencies’, as illustrated by the US National Emergencies Act, the UK Civil Contingencies Act and the Canadian Emergencies Act, had proven that it could effectively supervise the state and hold it accountable for its use of emergency powers. However, he also proposed that where such ‘ordinary’ laws are deemed by the legislature to be insufficient, there should be formal provision for executive derogations from rights, subject to subsequent legislative and judicial review. That would allow for situations where ‘governments conclude that it is necessary to go beyond reasonable limits on rights and dispense with rights altogether’ (Roach 2008: 230). While conceding that ‘routine derogations could lead to tyranny’, the optimal approach was to provide for ‘explicit and democratic derogations from rights’ (Roach 2008: 257). This, he contended was preferable to Gross’s extra-legal measures model because it was ‘designed to maximize both political and legal deliberation about the justifications for derogation’ (Roach 2008: 257).

Despite his advocacy of an ‘ordinary law’ approach, Roach criticised the US National Emergencies Act, noting: ‘In its single-minded focus on the power of the President to declare an emergency or an exception as opposed to the principles that might govern the declaration and conduct of the emergency, the Act is Schmittian’ (Roach 2008: 235). However, Roach presented the UK Civil Contingencies Act as ‘an admirable attempt to outline some broad legal principles to govern emergency governance rather than simply consigning these questions to the discretion of the sovereign’ (Roach 2008: 240). This claim flew in the face of the potentially dictatorial powers enabled by the Act, as well as the preservation of royal prerogative powers (see Chapter 7). Roach considered the Canadian Emergencies Act to be ‘carefully drafted’ and ‘not a Schmittian exercise of unrestrained power’. Indeed, it ‘demonstrates how there can be a creative blurring of all three branches of government that may be particularly helpful to supervise the state during emergencies’ (Roach 2008: 240, 241–2, 244). Those assertions are belied by the sweeping powers granted by the Act, and also the preservation of the royal prerogative power (see the Canadian case study below).

Who is the Audience?

In summing up the volume of essays, Ramraj posed the question of who the intended primary audience was for the authors involved. Dyzenhaus was addressing the judges, urging them to ‘take seriously their role in constraining state power’. The arguments of Gross, who assumed, as a matter of empirical fact, that the judges tend to defer to the executive in times of crisis, appeared to be directed at public officials in the executive branch of government, encouraging them to make ‘considered and deliberate’ decisions. In part, according to Ramraj, Gross’s arguments were aimed at ‘the people’ who must stand in judgment of such decisions (Ramraj 2008: 27). Essentially, the debates were regarded as directed to those holding power within the state. ‘The people’ – a term that lumps all members of society together, regardless of their wealth, class and socio-economic status – were relegated to a largely passive role, supposedly judging the emergency measures once they were completed by those in power.

Ramraj also partly acknowledged the limited scope of the essays:

One limitation is the focus in many chapters on liberal-democratic states with a stable and developed legal-political infrastructure and an entrenched – though perhaps severely strained – culture of accountability. How much relevance does this discourse have for the developing world, where emergencies connote insurgency and prolonged armed conflict or military government? Or where a prolonged and complex process of post-conflict reconstruction involves, as if often does, the introduction of unfamiliar forms of wielding and constraining state power, the reduction or elimination of traditional forms of power and a direct challenge to the existing political elites? (Ramraj 2008: 28–9)

These were questions that ‘must be conformed squarely’, but that was a task ‘for another day’ (Ramraj 2008: 29). In truth, the assumed paradigm of a stable politico-legal system in a ‘liberal-democratic state’ is not just a narrow one, but a false one. Capitalism globally is increasingly beset by economic breakdown, growing social inequality and escalating geo-strategic conflicts between the major powers that threaten to lead to another world war. Under these conditions, even the most seemingly stable corporate, military and legal elites will confront the mounting likelihood of popular unrest, uprisings and war. Any serious examination of emergency powers must be undertaken in that context.

Models of Accommodation

Gross and Ní Aoláin outline several models of accommodation – classical, constitutional, legislative and interpretive. As reviewed in Chapters 2 and 3, the classical models are the Roman dictatorship, the French state of siege, Article 48 of the German Weimar Constitution and the British doctrine of martial law. Constitutional models are countries or states – such as the Netherlands and Portugal, and some states of the United States – that have explicit provisions in their constitutions for extraordinary executive measures in the event of an ‘emergency’. Legislative models consist of legislation enacted to hand exceptional powers to the executive, such as the US, UK and Canadian emergencies legislation, as well as the far-reaching World War I and II regulation-making powers adopted in Britain. Interpretive models are those that permit the judiciary to interpret legal powers in ways that authorise emergency measures or actions by the executive.

Six Basic Flaws

Before examining these models, it must be said that they all share fundamental flaws. First, as established in Chapters 2 and 3, the classical models proved to be far from exemplars of constrained and delineated recourse to emergency powers. Rather, they gave way to totalitarian and brutal methods of rule to deal with upheavals produced by the rise of an exploited class – the slave revolts that shook Rome and the working-class rebellions that challenged the capitalist orders in France, Germany and Britain. Most acutely, the record of the Weimar Republic demonstrated the hollowness of formal constitutional constraints on emergency powers under capitalism, and how such constitutions serve as antechambers of authoritarianism when the ruling elite feels fundamentally threatened by discontent from below.

Second, there are obvious problems of definition. How are emergencies defined? Who has the power to decide whether a fact scenario, or alleged fact scenario, fits the definition? What powers can be exercised? As discussed in the Introduction, emergency is an inherently ‘elastic’ concept, open-ended and politically manipulable. From the 1933 Reichstag Fire, seized upon by Hitler to justify decree-making power, to the false claims of ‘weapons of mass destruction’ utilised by the US and its allies to invade Iraq in 2003, governments have inflated or fabricated pretexts for supposedly pre-emptive emergency measures.

Former President Richard Nixon’s claim of unfettered presidential authority to determine the legality of any emergency action, regardless of constitutional and statutory provisions, underscored this reality. Interviewed by David Frost in 1977, Nixon was asked whether ‘there are certain situations … where the President can decide that it’s in the best interests of the nation or something, and do something illegal’. Nixon replied:

Well, when the President does it, that means that it is not illegal … If the President, for example approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the President’s decision in that instance is one that enables those who carry it out, to carry it out without violating the law. (Gross and Ní Aoláin 2006: 52–3)

The difficulties of definition and lawlessness are highlighted by constitutions that distinguish between different kinds or levels of emergencies. Portugal’s, for instance, makes an unclear distinction between a ‘state of siege’ and a ‘state of emergency’. The former may be declared ‘in cases of actual or imminent aggression by foreign forces, serious threat to or disturbance of the democratic constitutional order or public calamity’ (Article 19(2)). A state of emergency can be declared ‘where the circumstances mentioned in the preceding paragraph are less serious’ (Article 19(3)). Guatemala’s constitution lists no less than five types of emergency: state of prevention, state of alarm, state of public catastrophe, state of siege and state of war (Article 139).

Written with overtones of Karl Loewenstein (see below), the German Basic Law provides for an ‘internal emergency’, a ‘state of tension’ and a ‘state of defence’. An internal emergency can be declared ‘to avert an imminent danger to the existence or free democratic basic order of the Federation or of a Land’. No definition is provided for a ‘state of tension’ (Articles 91, 87a(4), 12a(5)–(6), 80a, 115a–l).

Canada’s constitutional remit is even more sweeping, extending to the making of laws ‘for the Peace, Order and Good Government’ of the country (section 91 of the Constitution Act of 1867). The Supreme Court of Canada has interpreted this power as permitting the national parliament to legislate for national emergencies (Forcese 2008: 63). In keeping with that seemingly open-ended power, the Emergencies Act 1988 authorises the federal government to declare four different types of emergency: ‘public welfare’, ‘public order’, ‘international’ and ‘war’. A public order emergency, one that arises from ‘threats to the security of Canada’, can be directed against various forms of political dissent (see the case study on Canada at the end of this chapter).

Third, there is the phenomenon of ‘militant’ or ‘intolerant’ democracies that claim to stand for the defence of core values of a democratic order. On that basis, these states provide for the forfeiture of fundamental democratic rights from citizens who allegedly seek to undermine or destroy the ‘democratic’ constitution. In other words, in the name of democracy, democratic rights are eviscerated.

This has the effect of adopting a sweeping exceptional power to suppress opposition by preventing targeted people or political parties from exercising civil or political rights.

Article 18 of the German Basic Law, adopted after World War II, allows for people to be stripped of political rights for supposedly abusing these rights in order to combat the ‘free democratic basic order’. Article 21(2) of the Basic Law provides for the declaration as unconstitutional of any political party that allegedly has similar goals. The German Federal Constitutional Court has used this power to ban two parties, the Socialist Reich Party and the Communist Party, and Israeli courts have invoked similar reasoning to proscribe parties that deny the existence of the state of Israel (Gross and Ní Aoláin 2006: 39–40).

Such an anti-democratic principle is incorporated into the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 17 states:

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

The notion of an ‘intolerant’ democracy contains definite shades of Carl Schmitt. Indeed, his theorising about the supposed need to block parties that opposed the existing ‘democratic’ order via exceptional, anti-democratic measures found echoes that spread across the Atlantic during the 1930s. Karl Loewenstein, a German constitutional scholar who emigrated to the US after the Nazis assumed power in Germany in 1933 – and later became a US government adviser during and after World War II, particularly in Latin America and Germany – proposed draconian measures for so-called liberal democracies to combat perceived enemies of democracy.

Loewenstein’s basic proposition was that foes of democracy could hide behind a Trojan Horse of protection of individual rights to serve their cause and ultimately subvert the politico-legal order (Loewenstein 1937, 1938). He argued that the liberal democratic order was designed for normal times, and that the ‘exaggerated formalism of the rule of law’ had to be cast aside during periods of political crisis (Loewenstein 1937: 432). ‘Democratic states’ had to assume dictatorial methods to survive. By this doctrine, while expounded in the name of upholding democracy, democracy itself was expendable, or subservient to the retention of political power in the hands of the existing order. ‘The statute-book is only a subsidiary expedient of the militant will for self-preservation’ (Loewenstein 1937: 657). Employing conceptions that could have been invoked by Schmitt, Loewenstein wrote:

Where fundamental rights are institutionalized, their temporary suspension is justified. When the ordinary channels of legislation are blocked by obstruction and sabotage, the democratic state uses the emergency powers of enabling legislation which implicitly, if not explicitly, are involved in the very notion of government. Government is intended for governing … If democracy believes in the superiority of its absolute values over the opportunistic platitudes of fascism … every possible effort must be made to rescue it, even at the risk and cost of violating fundamental principles. (Loewenstein 1937: 432)

Like Schmitt, while Loewenstein’s concept of a ‘militant democracy’ was directed against fascist parties, it was above all aimed against communist parties that represented, even in a distorted form, the threat of working-class revolutions inspired by Marxist ideas of genuine socialist democracy: ‘The central focus of Loewenstein’s ire was first and foremost communism’ (Greenberg 2015: 201). During World War II and the subsequent Cold War against the Soviet Union, Loewenstein became a much-utilised ideologist of US officials in Latin America, where his theories justified severe political repression, including arbitrary deportations of political dissidents, and in Germany, where his views were instrumental in the drafting of the German Basic Law and the court rulings to outlaw the Communist Party (Greenberg 2015: 169–210). In Germany, Loewenstein became a lauded political figure in US-backed ruling circles:

The occupation’s educational and cultural affairs departments therefore sponsored Loewenstein’s tours throughout German cities to recruit the local support for an anti-communist campaign. Across the ruined country, Loewenstein called on Germans to combine the creation of democratic institutions with a vigilant suppression of Communist activities. (Greenberg 2015: 201)