Journal of Constitutional Law - Vol.1 (2020) - Special Edition
Journal of Constitutional Law - Vol.1 (2020) - Special Edition
Issue date: June 15, 2020
Author: Bruce Ackerman
Abstract
Terrorist attack of September 11, 2001 shocked the world, it caused major changes in understanding the safety and security. Very soon we saw that our lives have changed, in response to the threat governments around the world began imposing restrictions on different rights for ensuring the prevention of similar attacks. But one major discussion was how the governments deal with the emergencies. This paper asks a relevant question – what happens when we see next attack, what it will it look like. Nineteen years later the world faced a completely different threat – a public health emergency, yet the discussion that commenced post-9/11 is an extremely relevant point to start discussion. The foregoing paper, published in 2003 is one of the strongest and most discussed work on the topic of emergencies, relevant for the readers to the date, when assessing the boundaries and the perspectives of emergencies.
Paper: The Emergency Constitution
Pages: 9-64
Note: Reprinted with the permission of Bruce Ackerman and The Yale Law Journal Company, Inc. Originally published in Yale Law Journal, Volume 113, Issue 5, March 2004, Pages 1029-1091. Reprinted by the Creative Commons License. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This is an Open Access article distributed under the terms of the Creative Commons Creative Commons Attribute Non-Commercial ShareAlike 3.0 (CC BY-NC-SA 3.0), which permits copy, distribute and transmit the publication as well as to remix and adapt it, provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information visit the Creative Commons website:
Author: Eric A. Posner
Abstract
The deference thesis is that Congress and the judiciary should defer to the executive’s policy judgments during national emergencies. Criticism of the deference theory draws on the analogy of the emergency room medical protocol to argue that emergencies call for rule-bound constraint of the executive rather than deference to it. However, this criticism rests on a misunderstanding of the tradeoff between rules and standards. This paper was proposed as an analysis of deference thesis and its criticism, it has been modified to cover the general issues regarding the thesis and how rules and standards are relevant for national emergencies, it draws upon on the question of how and when the rules applicable during emergencies should be developed and applied.
Paper: Defference to The Executive in The United States after September 11
Pages: 65-76
Note: Reprinted from: Eric Posner, Deference to the Executive in the United States after September 11: Congress, the Courts, and the Office of Legal Counsel, originally published in 35 Harvard Journal of Law and Public Policy 213 (2012). Pages 213-244, https://www.harvard-jlpp.com/vols-35-39/. Reprinted with the permission of the Author. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This article is distributed under the terms of the Creative Commons Attribute Non-Commercial ShareAlike 3.0 (CC BY-NC-SA 3.0) licence (For more information:
Author: Bruce Ackerman
Abstract
War and emergency talks are attractive to presidency. “War on terror” that US has conducted clearly demonstrates what threats stem from unilateral power. Although terrorist attacks since 9/11 have not resulted in the deaths of thousands, attackers demonstrate their media savvy by choosing symbolically central locations for their assaults. These incidents have sufficed, however, to catalyze draconic revisions in antiterrorist legislation in both Britain and France. It is not hard to imagine what might happen when mass death is a real threat. Global pandemic of 2020 has made this fantasy a reality. Governments around the world are applying emergency powers. The foregoing essay by Bruce Ackerman, excerpted from another leading legal scholar’s Cass R. Sunstein’s book is an opinion on what is necessary to sustain the similar power of the US president, how sufficient the judiciary is and what role the political branches play in creating a democratic system of checks and balances.
Paper: States of Emergency
Pages: 77-82
Note: Reprinted with the permission of Bruce Ackerman and Cass R. Sunstein. Bruce Ackerman, States of Emergency. Originally published in: Sunstein, Cass R, “Can It Happen Here?: Authoritarianism in America” (HarperCollins Publishers 2018), ISBN: 9780062696199. Reprinted by the Creative Commons License. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This is an Open Access article distributed under the terms of the Creative Commons Creative Commons Attribute Non-Commercial ShareAlike 3.0 (CC BY-NC-SA 3.0), which permits copy, distribute and transmit the publication as well as to remix and adapt it, provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information visit the Creative Commons website:
Author: Clarisa Long
Abstract
The beginning of 2020 marked an unexpected turn for the world, the global pandemic of COVID-19 has affected every aspect of life. It has also created an unprecedented opportunity for governments to justify the expansion of their surveillance and collection of data. The foregoing essay, which was first published in Faculty Publications at Scholarship Archive of the Columbia Law School focuses on two types of data collection – governmental mass collection of nonanonymized location data and state-collected nonanonymized data on people’s health and immunity status. Several countries have applied one or both practices and it is relevant to look into them with legal perspective. Georgia is one of the countries, that also uses technology for the purpose of locating the possible contacts of the virus infected people, thus making the comparative analysis extremely relevant locally as well as globally.
Paper: Privacy and Pandemics
Pages: 83-90
Note: Reprinted from: Clarisa Long, Privacy and Pandemics, originally published in Pistor, Katharina, "Law in the Time of COVID-19" (2020). Books. 240. https://scholarship.lawcolumbia.edu/books/240. Reprinted with the permission of the Author. This article is not included under the Creative Commons Attribution (CC BY) 2.0 License of this Journal. This article is distributed under the terms of the Creative Commons Attribute Non-Commercial ShareAlike 3.0 licence (For more information:
Author: Nodar Kherkheulidze
Abstract
Principle of the Rule of Law is a cornerstone of the Georgian Constitution and organization of the government in general. It determines the way in which government should be conducted. A key aspect of this principle is separation of powers between the branches of the government, which creates a balance among them and ensures exercise of the people’s power in a democratic, constitutional and lawful manner. At the same time, there are cases where it is impossible to preserve the said balance. During a state of emergency and martial law, the President of Georgia has the power to issue decrees that have the legal force equal to that of organic laws, thereby substituting the legislature to a certain extent. This paper addresses the issue of norm-making in a state of emergency (based on a Georgian example) and its relationship with the principle of a rule of law state. In particular, in explores whether a decree can completely substitute the law and what should its scope be; which standards are being pulled back and what the rules that should be unalterably observed during the process of norm-making are. In addition, it seeks to analyze whether it is possible to define and impose liability on grounds of the decree, and whether or not a decree can delegate certain powers to the Government of Georgia.
Pages: 91 -105
Author: Tamar Khavtasi
Abstract
The spread of the pandemic has drawn attention to the issues regarding the protection of fundamental human rights and liberties. Within the context of a state of emergency, which was declared in order to normalize the situation, there has been a surge of restrictions placed upon such human rights as the right to liberty, freedom of movement, the right to property and others. Nevertheless, it is of vital importance for legal states that, despite the state of emergency, interferences into fundamental rights not exceed the constitutional framework, and that individual rights not be disproportionately violated.
The Constitution of Georgia allows for not only restriction, but also expropriation of private property during the state of emergency. Certainly, in every such case, decisions made by the government must follow the principle of proportionality in order to preserve the essence of the right to property. The point of scrutiny is whether or not the abovementioned criteria are met by the regulations regarding restrictions to the right to property imposed in the context of the pandemic.
Paper: The Right to Property in a State of Emergency
Pages: 107-119
Author: Ana Jabauri
Abstract
From the beginning of 21st century, legal ramifications of declaring a state of emergency have attracted a lot of attention due to the fact that many states have resorted to this measure in order to combat, first, terrorism threat, and most recently – a new pandemic – COVID-19. However, a state of emergency is certainly not a new issue, and there is a large body of scholarly work dedicated to it, alongside the issue of derogations from fundamental human rights and liberties both from international human rights law and constitutional law perspective.
This article focuses on constitutional legal aspects of the state of emergency and derogations from human rights obligations and is aiming to address some of the problems that might occur during a state of emergency. It will be argued that a state of emergency represents a convenient shortcut to authoritarianism and that a strict constitutional legal framework is necessary to be put in place in order to prevent the spread of exceptional provisions within the legal system, which could lead to the normalization of a state of exception.
Paper: State of Emergency: A Shortcut to Authoritarianism
Pages: 121-143
Author: Nana Uznadze, Giorgi Melikidze
Abstract
Since the beginning of 2020 the World woke up to a new reality: due to the dangers of Pandemic, majority of states are forced to change the rhythm of their lives and put it under the strict measures of emergency regime. The massive deployment of the states of emergency has itself put the need to analyse the legislature governing this institute high on the agenda, in Georgia as well as in the world. As the research has demonstrated, naturally, the state of emergency is announced differently depending on the models of governance, such as participation of various institutions in it or the differences of function allocation, however, at all stages the participation of the Parliament, as a controlling body is significant. The foregoing paper will investigate the state of emergency from the parliamentary perspective: the role of legislative body in this process and the threats, that may emerge when exercising governance, will be analysed.
Paper: Parliaments during the Emergency Regimes
Pages: 147-162