Balancing Security and Liberty

2020 ◽  
pp. 189-213
Author(s):  
Yvonne Tew
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Basic Structure ◽  
Preventive Detention ◽  
Public Order ◽  
Constitutional Amendments ◽  
Emergency Powers ◽  
Flexible Framework ◽  
Judicial Scrutiny

Emergency powers and national security laws have long been features of a powerful state in Malaysia and Singapore. In addition to extensive emergency regimes, these states have employed security laws authorizing preventive detention as well as public order statutes regulating expression and assembly. Courts have traditionally been highly passive in scrutinizing government actions taken in the name of national security or public order, refusing to assess whether the vast powers wielded by the executive were reasonable. This chapter makes the case for greater judicial scrutiny over whether government restrictions on individual liberties are justified. Proportionality analysis offers a rigorous, yet flexible, framework that courts can use to engage directly with the government’s justifications of national security and public order. And on some occasions, courts may have to employ a constitutional basic structure doctrine to strike down legislative attempts to pass statutes or constitutional amendments aimed at removing judicial review or eroding institutional safeguards. These judicial mechanisms would aid courts in the critical, yet sensitive, endeavor to balance security and liberty.

A Workable Method

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Numerous Case ◽  
Careful Scrutiny ◽  
The Government ◽  
Judicial Scrutiny

This chapter discusses the task of methodology. How might a court ascertain the appropriate mode of review in a given security-liberty case, and how might the court effectively undertake that review? The chapter suggests a calibrated judicial review method that affords the government wide latitude in most national security matters, with courts adopting a posture of substantial deference. However, when the government claims pressing public necessity to legitimate measures that curtail fundamental liberties of citizens or noncitizens, careful judicial scrutiny takes over. With Korematsu as backdrop, the method delineates the mechanics for selecting the appropriate type of review in a given case. In doing so, it speaks to a judicial review conundrum generated by a briar patch of unexplained boilerplate language in numerous case opinions—opinions that first recite “the court’s substantial deference” to the executive on security matters, then follow with “but the court is duty-bound to protect constitutional liberties,” implicating careful scrutiny.

Detention Without Trial and Constitutional Safeguards in Zimbabwe

1985 ◽  
Vol 29 (1) ◽  
pp. 38-58
Author(s):  
John Hatchard
Keyword(s):  
Developing Countries ◽  
National Security ◽  
Public Order ◽  
Political Rights ◽  
State Of Emergency ◽  
Personal Liberty ◽  
Emergency Powers ◽  
Peace And Security ◽  
Civil And Political Rights ◽  
The Government

There comes a time during the life of almost every nation when situations arise which threaten its peace and security. At such a time the government may need to acquire certain additional powers to help it combat the danger and this is frequently achieved by the declaration of a state of emergency. This enables it to utilise wide-ranging emergency powers and in this situation national security and public order considerations are placed above the constitution. As a result, among the first casualties of an emergency proclamation are the guarantees of personal liberty and protection of the law which are often abrogated or at least severely curtailed.The use of detention without trial during periods of emergency has now become commonplace, particularly in developing countries, a point which is defended by President Nyerere of Tanzania on the grounds that:“Our Union has neither the long tradition of nationhood, nor the strong physical means of national security, which older countries take for granted. While the vast mass of people give full and active support to their country and its government, a handful of individuals can still put our nation in jeopardy, and reduce to ashes the efforts of millions.”The need for a nation to protect itself in this way cannot be denied and this is widely recognised. For example, Article 4 of the International Covenant on Civil and Political Rights (1966) recognises the rights of governments

Realpolitik Influences

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Crucial Role ◽  
Final Section ◽  
Symbiotic Relationship ◽  
Law And Politics ◽  
Judicial Scrutiny ◽  
Politics And Law ◽  
The Impact

This chapter identifies realpolitik influences on the implementation of the proposed method for judicial review. It dispels the formalist notion that the judicial embrace of the method—any method—will itself assure its faithful operation. The chapter acknowledges the importance of judicial methods both for case adjudication and for judicial legitimacy. But, in light of the “flux and pressure of contemporary events,” it also identifies a crucial role for legal advocates and the American populace. It posits that careful judicial scrutiny in practice often results from a ragged combination of law and politics. This chapter’s final section tightly illustrates the impact of this kind of advocacy and pressure in Dr. Wen Ho Lee’s national security prosecution debacle. Dr. Lee’s story uplifts the realpolitik insight that there “is a symbiotic relationship between politics and law, in which civil society’s appeal to law informs politics, and that politics reinforces the law’s appeal.”

Part II The Right to Know, C Preservation of and Access to Archives Bearing Witness to Violations, Principle 16 Cooperation Between Archive Departments and the Courts and Non-Judicial Commissions of Inquiry

2018 ◽  
Author(s):  
Ciorciari John D
Keyword(s):  
National Security ◽  
Judicial Review ◽  
Historical Background ◽  
Public Order ◽  
Political Rights ◽  
Bearing Witness ◽  
The Right To Know ◽  
Commissions Of Inquiry ◽  
Civil And Political Rights ◽  
The Right

Principle 16 stresses the need for cooperation between archive departments and the courts and non-judicial commissions of inquiry. This principle highlights two key challenges of managing archival access: respecting legitimate national security needs and protecting privacy. With respect to national security, the Principle’s requirement of independent judicial review renders it more demanding than the International Covenant on Civil and Political Rights and other major human rights instruments, which merely require that restrictions be prescribed by law are necessary to protect national security or public order. Principle 16’s forward-leaning position draws attention to the fact that national security and public order exemptions are easily abused by states keen to avoid embarrassment or self-incrimination. This chapter first provides a contextual and historical background on Principle 16 before discussing its theoretical framework as well as archival access in practice.

A new typology of judicial review of legislation

2014 ◽  
Vol 3 (2) ◽  
pp. 143-169 ◽  
Author(s):  
JOEL I COLÓN-RÍOS
Keyword(s):  
Latin American ◽  
Judicial Review ◽  
Basic Structure ◽  
Final Word ◽  
Constitutional Amendments ◽  
Positive Law ◽  
Constituent Assembly ◽  
The People ◽  
Comparative Constitutional Law ◽  
Latin American Countries

AbstractThe distinction between strong and weak judicial review occupies a privileged place in comparative constitutional law. This article argues that it is necessary to generate a new typology that includes two other increasingly influential models. The two ‘new’ models can be identified as ‘strong basic structure review’ and ‘weak basic structure review’. The former, present in some common law countries such as India and Belize, not only provides judges with the ability to strike down legislation that is inconsistent with a particular constitutional provision, but also constitutional amendments incompatible with the principles on which the constitution rests. The latter model, weak basic structure review, currently present in some Latin American countries, also provides judges with the power to strike down ordinary and constitution-amending legislation, but gives ‘the people’, acting through a constituent assembly, the final word on the validity of any form of positive law. Finally, the article considers the possibility of the development of a fifth model in which even the constituent people would be bound by certain principles to be identified and enforced by judges.

In the Light of Justice

2018 ◽  
Author(s):  
Eric K. Yamamoto
Keyword(s):  
National Security ◽  
Cautionary Tale ◽  
Rubber Stamp ◽  
Shadow Side ◽  
Judicial Scrutiny ◽  
Judicial Role

This chapter distills the book’s responses to two pivotal questions. If a sweeping, politically driven curtailment of fundamental liberties happens again, would the Korematsu majority’s highly deferential 1944 approach be expanded to new purposes to legitimize present-day transgressions of essential democratic liberties? Or would the courts undertake watchful care over those liberties by scrutinizing the government’s claim of necessity so that the talismanic incantation of national security itself does not enervate the judicial role? The chapter coalesces prior themes by first linking rubber-stamp judicial passivity to the deeply problematic shadow side of national security law; second by highlighting Korematsu and its coram nobis reopening as a cautionary tale; third, by repudiating Korematsu’s unconditional deference to the government’s claim of necessity; fourth by implicating judicial legitimacy in affirming Korematsu’s stated commitment to careful judicial scrutiny; and finally, by moving toward justice by breaking a key link in the chain of enduring injustice.

scholarly journals Takeover Bids in Europe in Times of a World-wide Pandemic Threat: A Delicate Balance Between the Fundamental Freedoms and the Protection of Europe’s and the Member States’ Strategic Assets

2020 ◽  
Vol 17 (3-4) ◽  
pp. 353-362
Author(s):  
Marieke Wyckaert
Keyword(s):  
National Security ◽  
World Wide ◽  
Public Order ◽  
Open Market ◽  
Delicate Balance ◽  
Fundamental Freedoms ◽  
The Future ◽  
Strategic Assets ◽  
Pandemic Threat ◽  
Takeover Bids

This paper explores takeover bids in Europe in times of the COVID-19 pandemic. The search for a balance between maintaining the open market as a European achievement and the protection of national security and public order is not a new phenomenon. This search is not easy with the future FDI Regulation and will raise additional questions.The FDI Regulation became very concrete thanks to the COVID-19 pandemic: At the beginning of the crisis, the Commission presented a Communication setting out guidelines for FDI to be applied prior to the regulation.

Diverging incentives for reforming China’s restrictions on digital innovations

2017 ◽  
Vol 10 (3) ◽  
pp. 259-280 ◽  
Author(s):  
Martina Francesca Ferracane ◽  
Hosuk Lee-Makiyama
Keyword(s):  
National Security ◽  
Industrial Policy ◽  
Design Methodology ◽  
Negative Impact ◽  
Public Order ◽  
Content Type ◽  
State Owned Enterprise ◽  
Policy Objectives ◽  
New Perspective

Purpose This paper aims to investigate China’s policy on digital trade with the objective to highlight the rationales behind such policy. Design/methodology/approach China’s policy on digital trade is assessed by analysing the main regulations imposed in the country in the period from 1985 to 2016 that have an impact on digital trade. Findings It was found that there are more than 70 measures imposed today that have a negative impact on digital trade. The measures are diverse and can be justified with several policy objectives, namely, industrial policy, public order and national security, and these support China’s fiscal and state-owned enterprise structure. Originality/value This paper analyses China’s policy on digital trade from a new perspective and provides insights on the rationales behind this policy.

scholarly journals Practical use of ArcGIS for the ensurance of national security

Connectivity ◽  
2021 ◽  
Vol 149 (1) ◽  
Author(s):  
M. R. Semenchuk ◽  
Keyword(s):  
National Security ◽  
Situational Awareness ◽  
Public Information ◽  
Geospatial Data ◽  
Public Order ◽  
Security Measures ◽  
Gis Technology ◽  
Stage Of Development ◽  
Geographic Context ◽  
Interagency Cooperation

At the present stage of development, the geographic information system (GIS) technology can be applied in many areas, including national security. Geospatial data create new opportunities for resolving vital issues, among which are detection and immediate response to threats and dangers, as well as for making effective management decisions on preventive security development. Previously, GIS has been a technology used by a small group of geospatial data analysts with limited access to up-to-date data. Nowadays, the ArcGIS software is a geospatial platform, which provides capabilities to the civil security sector of countries striving for sustainable development, public order and emergency prevention. ArcGIS maps and applications can help governments to create space for interagency cooperation in national security and other fields, where geospatial data is an administrative and decision-making instrument. The article describes the advantages of the ArcGIS software, including its extensions and add-ons, the best practices of applying GIS technology for the purposes of public order enforcement, potential offense detection and public event security. In addition, ArcGIS is used to access the existing data and integrate it into a common geographic context - a web map ensuring the interoperability of data and a better understanding of how to take security measures and make objects clearly visible. The GIS application analysis has shown that public order enforcement through the utilization of geospatial data implies the detection of dangers, threats and vulnerabilities, interagency cooperation thanks to shared situational awareness across multiple groups for daily operations, and action coordination with the use of the latest technologies and public information. At this point, the ArcGIS software makes it easier to take national security and pubic order measures from any device, at any time and place.

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