The role of the judiciary and of the courts in time of emergency measures enacted by the governments and the role of the Constitution

Elspeth Guild centered her presentation on the rule of law and its effectiveness in the time of emergency. She addressed which are the borders of the rule of law, which are its exceptions and against whom this power of exception should be exercised. She also highlighted the resistances to the state of emergency coming from the Constitution’s settlement. Guild first looked at the concept of rule of law which enshrines the idea that the actions of the authorities nee to be justified on the basis of laws. These laws have been duly passed by the legislature. As a principle, its application is strongest within the nation state where the relationship between the state authorities and the citizens is clearly delineated as one of rights and duties. The exclusion of the arbitrary in the actions of the state is one of the foremost aspects of the rule of law. This exclusion of the arbitrary is tied to two ideas: first, the right to forseeability for the citizen. The individual should be able to regulate his or her actions in accordance with published laws and able to determine what the consequences are of respect or breach of those laws. Secondly, the principle that citizens are equal before the law is equally central to the exclusion of the arbitrary. Guild stressed that both principles are to be found explicitly and implicitly in the American as well as in the European constitutions. They are also formulated in international human rights treaties as extending beyond the ken of the citizen to the right of the individual irrespective of his or her citizenship.

In the time of emergency, which is most clearly expressed as the time of war, these two principles may be modified. In national constitutions, provisions of exception permit state authorities to breach these fundamental principles where certain conditions are fulfilled. Guild mentioned also that the European Convention of Human Rights equally provides in article 15 that some of its provisions are derogable in times of emergency. The question which arises in the state of emergency which have been unleashed by the war on terrorism is against whom should these powers be exercised? What is the difference between the citizen and the enemy and how does one identify him or her? What are the consequences of identifying him or her?

Guild distinguished an internal legal regime whose borders are those of the national states and an external legal regime which is exclusively regulated by the international law system. The internal legal regime of a constitutional state includes several fundamental rights of the person and some prohibitions limiting the authorities which both constitute a direct expression of the rule of law: in particularly she reminded the right of defense, the presumption of innocence until a final judgment has been given, the right to a judge, the right to a due process and the obligation for the courts to provide reasons based upon the law for their decisions. However, she pointed out how, despite the presence of the rule of law in the constitutional systems of the modern states, illiberal practices are yet carried out. She gave the example of the issue concerning the treatment reserved to the imams in some EU Member States; imams are labeled both as enemies and as leaders of enemies. Recently in France several arrests of imams have taken place and in Italy the expulsion of a Senegalese imam has been at the centre of the media’s attention a few weeks ago. According to Guild, these measures are at the border of the rule of law and they show the conflict between the theoretical concept of the rule of law and the practical application of this key principle.