a AI

The'-- I ac 'n a -* -
STATES
OF
EMERtGiENCY
TheirImpact on Human Rights
Astudypreparedby the
InternationalCommissionofJurists
( 1983 InternationalCommissionofJurists
CONTENTS
Page
INTRODUCTION ....................................... i
COUNTRY STUDI ES
Argentina ...................................... 1
Canada ......................................... 31
Colombia ....................................... 43
EasternEurope.................................... 69
Ghana .......................................... 99
Greece ......................................... 133
India .......................................... 169
Malaysia ....................................... 193
NorthernIreland................................. 217
Peru ........................................... 247
Syria .......................................... 277
Thailand ....................................... 289
Turkey ......................................... 309
Uruguay ........................................ 337
Zaire .......................................... 371
QUESTIONNAIRES ON STATES
OF EXCEPTION AND
ADMINISTRATIVE DETENTION ....... 389
OBSERVATIONS AND
CONCLUSIONS ....................................411
-0-0-0-0-
-i -
JA'TROIYJCTJON
by/
NLqNLl MacDesnoL, Secvzefauy- enwa.l of hae
.t e.'a.utonul Commin' o1O JOu guei.A
TheAe in a fnequent and peaqhup.J unden.-tudabnle linh between
ntateA of eme'zenc/ n(! nitucaion-i of gzave vio.lutiaon of /uiman
4lip/htn.. The monti ne-ioun 0 j i0(0 ioni tend to occvz in niLuaLtioL of
aenaion hen tht.e in px)L~ewome, o think they e, Lheatered bql
foceA Moh cha.Le,,e Owis wi ho Til if not the elab.ltihed ondei
of Liie .oc i.e l,.
47bi cle 4 of Ti',0 eT eanukTono I Covienaont on Ci ei and
PoILticul Yight4 Liecoyli.e4ilcTe 0i. of povennmenbi "in time of
public eme (4"
W
ANA tihic/i tenin tThe life of He notion" to
d('-70
9
ntO, wi th ceT(mi .excoptini, tnflzim thebLz obliGo.- ni wdez The
" The . '(icL .
Aitualio:n". Tew (1e Nm (-, ,'i -ion- in the ulopeun and
t1mezltcan .7',i ionuol humun i ic,ht. cmnt,enti oni.
Coven nt, "o x'Tent v iWe(40 b( the e.x 19 enctej of the
nf/o.tunute te sLie it'i u t wIndenc/ Ion bornme 9oveanmen t-Lo
.7eg(ztd an/ c,'iultn e To(,Th i ( 1tt.,o'iti/ (I" a .th e.t to "tihe .i.fe of
the nation". /niI i. )o,tic(1l(1/n L,7110 of ,7 ,iIT1e Uhich!(/o /o-t
p,.Ovide an/ oeful meoni fo,7 t/he Tnon.jfen of oxl.tice /-xYe7 und
wi'hich in con:IC1C01,-0 U00 inclinetd To .to,.ed anij cnitici m of t1e
go'elunenT i (ill ucT't nbv-en. t, of piiibiic o/nde/.
When -Te-je 1(me-b feel Thtle Otened theyl often dec-lane uantite
of ernenigenc/ 0 othen ituet of excepLion, and u-ie thei emelencel
powel--JL -t-upen/twhat nemain of Te bun-ic /uman liz/i.L and the
pfoceduita, fo.a Tuein mfoncement. /Ieving dt.i-mtltd the legal
machine.n! fon /il oection iof Mhe ciTi,,en, they fnequen-td/ pemit
.te 1
-Lhe.is 4ecu. i Til fonc,. to abit..e ite 'non-de-ogable' /ight.
,
includLng Vie ,tight. to li-fe and fneedom fnom Lonturle, Oi othen
czue-l, in/lumen on degnoding tneautnent on punihmenL. ieA neulIL
nuc'
,,
inhuman pnactLco-i (7 (rTinl/m(1un (a/eA.L, -icet daeentiona,
dL-appeu.ance, extnu- uLl-inga 4
1
T/tematLc pJac-tLcc4 of
udiciaZ end
-to~n-te.
/I- an onzgania.ion devoted to the plomotion of the Rule of
Law and the legal pnoLectLon of human lzigh/t, HLIC f/natena&one.I
Commai.aion of jV71,2t- decided to undent ee a -i ad
1
of nitatei of
eme4gency. Oven 15 counLnLea ivene ie-IecLerd whichi hud expe..enced
-i.atea of emeAgency in the 19604 and 1970'.. The 4AeacItion coveam
diffeen-t luindj of emengency undez di.felzenL 4epimeaj and -in
- ii -
diLffelent
4egionj. &Cpe-7tafzom tho-je coutiLL?aeze commL+Loned
-to pepaze papen-i which would je,7tve a.j thu b,7.ji.j fol the iud!/.
They we7e a.eked to outlune the exitijzi
9
conJiLutional
und
leg-ilative
pzo-t,i'ionij
9ovevuiLng
jtatej of emeligency,
to de.-c7Lbe
the ci/zcum-jtance.j
in which emae9enciej
Wc.e decLazed,
and fon what
puA/zpo-e4i,
the action tahen unde4 the itate of emelzgency and the
extent to which it compiLed with the pae-axiitlitng
lilation,
the
abu.jei, if uny, wLhlh occaltmad,
and the cincwunmtancej
Wtdez Uhi-chi
Pie emelgency
wa- teluiiinated
o, if -jucheva-j the caoe, conteaued in
[olzce aftez -the cincun-titance.s
whichz gave lz-ie to the declaation
had cea-jed to cxij-t.
The team- '.jte of cmaengency' wa- intenpneted
Widely to
include ',zeqimesi of exceoton',
, i.e. ,ce!)imeQthat have ovcAthnowfn,
and not rnelzely -iw-tpanded the plzeviou contitutional
onden, and
have a-miimed legi.iactive
and executive
powenuej ana-loqoa- to tho-e
unde.-? a fo-uiiu -tate of eme4-gency.
fin addition to the.e counta -tudiei, wu'o quetionnauizei
ee
cil-cl-lated
to 158 oveanientj.
One neqaueted
p-aticIUan-i
of
-e! .ielatLon,
p.7ocecdh.
and ice-j
eme gency; Vte othe?
a ui p-zac
concctnin!) jPate.j of
alzlted "o he pact.ice of ac/mini-tlative
int!enment
0,?, a- it i- ca/Ied in Conunom,eaLth iountziaej,
pnevenivc devtntion,
i.e. indefinite
detention
on executive
autho-zi.ty
without chazye o, tLai o4 an/ fo/mz of ,idlcdicil dete4-
mination. Ow zeui /'o,7te Jecondqueeti-onni.ocne'
u,1 thatmoit. of
the Victfim-s of the L)o.,-It Vioationj
of humacn ,Lgh t-n at' pe7.ion-i who
alne detined byllai/ of uz!min-ltnatevv
illt "nmen t undez PUte of
eme. (;encil. tepiLe.i -to Oi qtzietiotzaijtas
iee naci2, ved f[zom
to hee
34 coat4.i of WI uich 28 ,eze not the jubject of the mone detailed
count~ly -Paluie-s.
13u-jed upon the-je countn,y iLudie-i and the 4eplicaj to the
(ue&Ponnae
e-s the IPif of" the Yztaneati.ona.l
Comrri-i-ion
of )unli-t-
made u compzative
cualy-ji of the lebi-iation,
piacticei
and
abuic- of -itet,.i of emen9ency in the diffen'ent
coauzt,7ie4,
and
compxaed them witU ,the e-itab-/jhed intanational
no.'ns 9ovelning
-itatei of cml,-?anc,,
fmaLI,,, necomiendation
walze made a-jto
fu,0tha p-zinciple
amd p.acticv-i,
both at the inteluzational
and
national level i,who.-ia adoption would en-le a ',teatlezplotection
ayain.]t. abu. e.
7he -study bi the lntuzationa.l Commi-jision of JuL.st- wa-i
ca, zied out in xmul-el with a .ji-idy by Miadame Queitcaux,
the
Flienci Special aptenn of the United Nationj .iub-Com,-nL--i-on
on
the Plievention
of di-cnlimiation
and the 'Notectionof Ai-nonzitiej.
She wuj cha.zyed by the Sub-CommLi--ion
to pnepane a epoN.Zt on the
Quai-ion ofthe Human ikg/t-i of Pe/-oniSublected
toAnyFo.un of
Detention olYmpaionment
(a itudy of te impZicationi
fon human
9/iYth4 of zecent develonent
concelnin
9
-ituat4.onj
known as'itaate-i
of -iegeo emengancy).
- iii -
The lntelnational Commission of wurit- coopelzated cloeiy
alith Madame Quaetiaux and fuinished heri with copitej of papeas it
had commi-.jiloned f[,om i.0i expelztj.
The edi-lo7 of -he Lade;, M/?a. Douniel O'Donnell, plic-palled on
intea--im /elpit on .jtuteiof emealgencit which wa.j .jubmiltted to the N
Sub-Comeuij,4in and dit-'ibuted a-jUNdoc. el1CA. 4Sub.21A'Ol93 of 26
;luo'qjt 1981. 71i.l L'aJ late expanded bq M.,. O'Donnell to become
the anaul.jLij and co on. in -die final chapte-- of -he ple.jei-L
'jtudy.
i-he 7ntvqnc,Lionul Cmmi.,.j ion of Yu.7iijt-i iut/hi.0-i to ct'lnou)- Lede
it-. debt and exP/-e.j-. tL- thank.- both o him uncd to the expe.'Zt.i foa
thei'z pae/a/7(tion of, on, 'XPCi/Ii Ichi -ll (1,3
0o- commenti thie .'c'(1'ed
the baui. foa the chna'Le,7ij dec;Iin; ci/it /xi.ticu-laa coun-,ti4e.. It
-./hou-h De made c leaz, /1001ei7, that -the_. -ie ppe- ' /(11- been edi.ted,
Jonitte e.Alib.iutnia!lq, b! Ow te tuff oft Vie 9L , cna he I/CY9 al&e
i 7e-iIr)ofjLle fo,? te ,,erint t(x t u(d, in paN ti cul(', Vthe
conc.lu.ion.i at te end of 6t.ow capte/,. /10i CXvpeat., olhen than.
thoiewho 7equ&t0c! oi name-i not be Pub-i.i/ed,cu'e:-
Lhat t /
la/entintu - Au-iana 1Zyuad; Cunid - Paof . ,ld, i,7omb&q1
Colombia - neo!'. Cu,7,7i..;Oiu uit -
-1 uae,5 j ,n e-1uIope .P.
van den /ea,,
1
,of7. 1. f7.A.M ,!b.:uy',, e; o-uau ; 4/ia-
5u,'unne La /2obuoad;a-i, t aw, iiui/; tldd; Cieea ,ct -, e-bio. 7"
Neoato-i, Poly Papatiuanuajol)uot;.ndia - .. A'oozanti, i-ti S.
Nanijan; Malaq.lia - Pcam Cumanawny A'oat/ien Ylieland -
Naot. Claiknea- Paie, Douzoe oaff; Pewu -i9oe jyi)aaci-a-Sayan;
Sy7ia - ttaciba Ounudjea; T-ailand - aot Koiol Sobha?-
VichiL-i; Uauiuay - rI-ejando ibtucio; Zaiaa - aof. fiacquae4
Vandealinden, Paof. ELienne R.Mlbaia.
Finally, -de Yntennational CommLijjion of guritdachnowiedge,-
wiith 9qatitude the giant finom the United S-tata 4genci fl orntea-
natona, Levolopnent, which made po,4-ibie the pliepaAation and
pubicaizonof thi --tudi.
geneva, 'ach 1983
- 1-
THEPRESENTSTATEOF EMERGENCY INARGENTINA
CONTENTS
Page
I. INTRODUCTION ................................... 1
The MilitaryGovernmentand the National
Constitution.....................................2
TheLegalFrameworkof thePresentSystem .. 3
II. EMERGENCYPOWERSAND LEGISLATIONAND
THEIRUSE ........................................6
1) Stateof Siege...............................6
Conditions for administrative
Effects of the State of Siegeon
Requirements for avalid declaration... 7
Procedure forthedeclaration .......... 8
detention.............................. 8.....
Powersofjudicial review.................. 10
Constitutionalguarantees.................. 12
Conclusion.................................. 14
2)EmergencyLegislation..................... 15
Jurisdictionof militarycourts ........ 15
Powersofarrestandpreliminary
investigations.............................. 16
Righttoone's 'natural jurisdiction' .. 18
Military justiceprocedures................ 19
III. ASSUMPTION BY THE MILITARYJUNTAOF
JURISDICTION. ............................. . 21
IV. OTHER REPRESSIVELEGISLATION................... 21
Ideologicalrepression......................... 21
Suppressionof trade unionrights .......... 23
Prohibitionofpolitical activities ........ 25
V. ABUSESOF POWER:TORTUREANDDISAPPEARANCES 26
VI. SUMMARYOF CONCLUSIONS......................... 27
-0-0-0-
-3-
I. INTRODUCTION
Whenthe militaryhighcommanddecided inMarch 1976to assume
the leadershipof the Argentinastate as the culminationofaprocess
ofmilitarisationofArgentine society,the situationin the country
was considered by the MilitaryJunta to be "awar aqainsttheenemies
ofthe fatherland". Withinthisall-embracing concept,anyideology
opposed to themilitarygovernmentwas considered asendangering the
peaceand securityof thenation.
The first actof theMilitary Juntawas to assumeall con-
stitutionalpowers. The Statutefor theProcessofNational Re-
organication (1)signifiedthe replacementof the NationalConstitution
as the basic law. The MilitaryJuntanotonlygathered theconstituent
powersinto its ownhands, whichentailed theenactmentof institutional
laws amendingthe Constitution, butassumed authorityfor the exercise
ofthe three powers- executive, legislative and judicial- bvreserving
for itself adiscretionaryareaof responsibilityoverall three,
representing itselfas thesupremeorganof the State. It proclaimed
that
the MilitaryJunta (composedof theCommanders-in-Chief
ofthe threeservices) appointsand removes the President
of thenationandacts as the HighCommandoftheArmed
Forces (2)and
the Conqressis dissolved and the legislativepower
investedby the Constitution in theCongressis exercised
by the Executive,with the assistanceofaLegislative
AdvisoryCommittee,composedof ninehigh-rankingmilitary
officers (threebeing appointedbyeachofthe armedforces).
ThisCommittee is onlyempoweredto advisetheExecutive
with respectto legislation. Since the assumptionof power
bythe Jinta noelection,nationalor provincial, hasbeen
held.
theMilitaryJuntaexercises judicialpowers. The
InstitutionalActof 18June 1976 states : "TheMilitary
Junta assumesthe rightto judge the conductofpersons
whohaveprejudiced thesupreme interestsof thenation"
(article1). TheMilitaryJuntadetermines the persons
who areoffenders underthe termsof article 1,andmay
impose the followingpenalties: loss ofpoliticaland
trade unionrights, loss of the rightto administerand
disposeofproperty,and,in the caseof naturalised
Argentinecitizens, lossofcitizenship.
Theeffectof these changesisthat the rulersofthe State
are notanswerable to thepeople, whodidnotelect them,are not
(1)Official Bulletin,31 March 1976
(2)The Statutefor the ProcessofNationalReorqanizationprovides
thatthe legislativepowerswithwhichCongressisendowedby
theNationalConstitution,includingsuchpowersasare
exclusive toeachof its Chambers,shall be exercisedbythe
- 4-
entitled to dismissthem, anddo notenjoy anypoliticalrightsor
freedoms. Theprincipleof theseparationofpowers hasbeenabolished.
Awholeset ofrepressive emergencylaws have been introduced.
These
have theirtheoretical
basis in theDoctrineof NationalSecurity,
in which the major tenet is "bipolarity",
or thedivisionoftheworld
intotwo opposedandirreconcilable
blocs.
TheMilitaryGovernmentand the NationalConstitution
In1816Argentinaproclaimed
its independence
fromSpain.
Pawever, theprocess of nationalorganisation
didnotbeqinuntil much
later, after alongperiodof internecine
struggle betweenBuenosAires
- the capital - and theprovinces.
Thegovernorof the provinceof
Santa F6,JustoJos6de Urquiza,resolvedin 1852 tostrengthen
the
centralgovernment.
Until then, the politicalstructure of theArgen-
tineConfederation
had beenveryweak, as itwas based onrespect for
the autonomyofeaci,province.
Consequently,
Argentine constitutional
lawcame into beingas the successorto the publiclawofthe provinces.
The provinces incorporated
into their respective constitutions
the
principlesin force in Europe for the oraanization
of aliberalState,
namely, the separation
ofpowers, representative
democracy,
andr.cog-
nitionof the basic riahtsof the individual.
The texts of the pro-
vincial constitutions
were theimmediate forerunners
of the National
Constitution
of 1853.
The Constitution
was drafted byaCommissioncomprising
a
representative
of each of the fourteenprovinces,who assembledat
SantaF6 on20 November1852. Sevenmonths lateron 1Mav1853, they
producedan aqreed text.
TheConstitution
of 1853 was amendedin the lightof the
decisions takenby the constituent
conventions
of1860, 1866,1898,
1949and 1957, but the basicprinciples that remained inforce are the
guiding tenetsof liberalismwith regardto freeenterprise,
free trade
and ageneral welcometo immigrants.
TheConstitution
consists ofa
preambleand 110articles.
The normativepartcontainsthe declarations,
rights and guaranteesof citizensand the basic rulesof lawon which
the structure ofpower is founded.
In thehalf centurysince 1930aseriesofmilitarycoups have
set aside the provisions
ofthe Constitution.
Apartfromthe govern-
mentof GeneralAgustin Justo (from1932to 1938) and the firstperiod
ofGeneralPeron'spresidency
(from1946to 1952), no constitutional
government,
elected by the general will of the people, served its full
term. In 1930,PresidentHipolitoIrigoyenwas deposed; in 1943,
General ArturoRawsonoverthrewPresidentRamonS.Castillo,whilein
1955, acoupd'6tatdirectedby GeneralLonardi putan end to the
government of Peron; in 1962 PresidentArturoFrondiziwas overthrown;
in 1966, adelegation
ofgenerals notifiedPresidentArturo Illiaof
his removal fromoffice; and in 1976 three military officers,acting
/continuation
of footnote (2)7
Presidentof the Nation ...ALegislative
AdvisoryCommittee
/appointedby theJuntMshall takepart in theformulation
and
approvalof thelaws, in accordancewith theprocedure tobe
established.
- 5-
onbehalfof the JuntaofCommanders-in-Chief,
informedSra.
dePeronthat she no longerheldofficeand placed her in military
custody.
Only oncein the last fourteenyears has the peopleof
Argentinabeenable tovote for the governmentof itschoice. This
wasin 1973, when it votedfor the returnofPeron. Since then
militaryrulers haveassumed officeunder variouspretexts,such
as "repressingcrime and prosecutingdelinquents",
"restoringthe
situation to normal", and "protectingthe peace and securityofthe
nation".
"If Ihad to expressin onewordwhat hasmostvitiated the
political scene in the last fewvears, 1would say ithas been
demagoguerv"saidGeneralVidelaontakingpowerinMarch 1976.
Referring to theelectionofPeron,he continued: "Thisis broadly
whattook placeon24 March1973, and its background, whichhas
existed for some time, is subve.-sion. Subversionis, in fact, the
consequence ofdemagoguery. It is subversionthat pits father against
son fromone generationto another". (3)
Under article 22 of the NationalConstitution the act of
usurpingthe powerof governmentis an act ofsedition. Article22
states: "Thepeopleshall not deliberateorgovernexceptthrough the
mediumoftheir representativesand authoritiesestablished bythis
Constitution. Any armed fozce or groupof personswho usurp therights
of the peopleand speaks intheir name commits the crimeof sedition".
It is clear, therefore, that themilitarygovernmentwhichhas
beenin powersince 1976 is unlawful informand inessence. In viewof
the lengthof timeit has remainedin power,it cannotbe justified (as
some have soughttodo)as a"defacto"government,i.e., acaretaker
governmentwhose termof officeis fleeting,and whichwillremainin
poweronlyuntil a"dejure"governmenthasbeen elected.
The legal frameworkof the presentsystem
The instrumentswhichpurporttoestablishthe institutional
frameworkofArgentinaat thepresent time are:
- the Basic Objectives
- the Acton the ProcessofNationalReorganization,and
- the Statuteftr the Process ofNationalReorganization.
The latterStatuteestablished inarticle 12 "that the
nationalandprovincialgovernments shalladapt their actions to the
(3) "LaRazon"newspaper,BuenosAires,13April 1976
- 6-
basicobjectivessetby theMilitaryJunta,tothe presentStatuteand
tothe national andprovincialconstitutions,
so longas they are not
opposed tothem".
The Constitution
of1853 thusremoves thebasis ofthe "legal
order",and in itare to be found the criteria fordetermining the
legitimacyor illeqitimacy
of subsequentpoliticaland institutional
developments.
Thenature of theJunta's"Objectives"
is clearin its basic
outlines. By reaffirmingthe supremeprinciplesof the"enforcement
of
Christianmorality", "national tradition"and the "dignityof being
Argentinian",
it attempts to ensurepublicandsocial orderand "national
security".
The "communiques"
(similarto "ordinances"
or "decrees")which
theJunta has issuedeversince its firstday inpower,aredirected
towards this. Comriunique No. 1stated "thatthe whole countryis under
theoperational
controlof the Juntaof GeneralCommandersofthe Armed
Forces", whileNo.4informed "the peoplethat all thesources ofpro-
ductionand placesof work,bothState andprivate, shall be considered
objectivesof national interest"; No.16 notified"thepeople thatSpecial
StandingCourts Martialnavebeenset up throughoutthe country"pur-
portedlyunder article 483 of the CodeofMilitaryJustice,and No. 25
authorized the institutionof governmentcontrolover the Confederacion
General Empresaria (GeneralConfederation
of Entrepreneurs)
and the
Confederacion
General deTrabajadores
(GeneralLabourConfederation
/CGT/).
If any justification
canbe foundfor themilitaryintervention,
it lies in thefact that thepreviousgovernmentfailed torid the country
ofthe three revolutionary
armedforceswhichwere committingacts of
terrorismanddisturbing thepeace of thenation.
However, theobjectivesof theMilitaryJuntagofar beyond the
restoration
of lawand order. On 7July 1979,over threeyears after
the coup, theHead of theArmyHighCommand,General SuarezMason,
addressinqmembersof thediplomaticcorps in the Institute ofForeign
Service to the Nation, said:
"It wouldbeabsurd topresume thatwehavewon the waragainst
subversionsimply becausewe haveelimirEted thethreatofarms.
As symptomsof subversive action,weshouldlook at the recent
attacks against the university lawand againstthe questionof
Moral and CivilTraining...
The aimof this strategy (thatof
subversion)
is to seizepower,and, toconfront thisdanaer, there
mustbe acomprehensive
responseon thepartof theState. There
are two strategiesfor this - the militaryand the political-
and everyMinistryshould takeanactivepartinthe latter.
It is the spheres ofreligion,politics,education, economics,
cultureand labourthatare nowthe targets for subversive
elements". (4)
Thepurported legalbasis of manyofthe powersexercisedbythe
MilitaryJuntais the Stateof Siege,whichwasproclaimedtwoyears
(4) "LaVozdel Interior",
7July 1979
- 7-
before the Presidencyof IsabelPeron. Aswillbe seen, the proclamation
ofthis Siegewas unconstitutionalinform, and thereforeinvalid. It
canbe plausiblyargued that atthat time there was,in the wordsof the
InternatianalCovenantonCiviland Politica.Rights (towhichArqentina
is not aparty) apublicemergencywhich threatenedthe life ofthe
nation. At leastthree clandestinearmedorganisations wereengagedin
carryingout armed attacksagainstmilitary units,publicofficesand
privateundertakings. However,by 1977, as is shownby thepassage just
quotedfromGeneralSuarezMason, 'the threat of arms' hadbeen
eliminated. Since that time, the powersof theState ofSiege havebeen
used toimpose aparticularpoliticalideology of 'nationalsecurity'
and to suppress all opposition to it.
Today, the situationinArgentinais oneofunrelieved peace
andcalm, as the militaryare constantlyc]aiminqas theresultof their
rule (5).
Nevertheless,when the Militaryjunta announced theguidelines
forgovernment actionin 1981-1984,itstated that "... the National
ExecutivePower (henceforthto be assumedby anothermilitaryofficer
appointedby the Junta)shall, in the performanceof its actions in the
near future, takeas the centre ofgravity for theseactionsthe need
tomaintainand increasesecurityand the ruleof law". (6) The military
governmentwas to continueunchanged,aswas the State ofSiege in order
to preservenational securityas the primaryobjective in face ofa
supposed constantandlatentdanqer.
After the surveymadeinArgentina by the Inter-AmericanCommission
onHumanRights (IACHR)between6and 20September1979, theCommission
preparedareport,whichwas approvedatits 67th sessionon 11 March
1980. In referring to thelimits to the repressiveactionof theState
(page261, the IACHRstated:
"In the lifeofany nation, threats to thepublicorderorto
thepersonalsecurityofits inhabitants,whichemanate from
personsorgroupswhoresort toviolence, mayreachsuch
proportions thatthey entail thetemporarysuspension ofthe
exerciseofcertainhumanrights."
"Mostofthe constitutionsof the LatinAmericancountries
acceptsuchlimitationsand mayevenprovidefor certain states
ofexception, such as aStateofEmergencyor aStateofSiege,
insuch circumstances. Naturally, considerationsofextreme
gravitymustprevailfor suchmeasuresto betaken,since the
purpose oftheir introductionmustbe topreserve thosevery
rights and freedoms thathave beenendangeredby thedis-
turbanceof publicorderandpersonalsecurity."
(5)Message to the countryfromGeneral Videla,"Clarin",6March
1980. "... Behindus, there liesasuccessionof frustrations
and failures,whichhave beenwipedoutforever. Now,atthe
end of fourfruitful anddecisiveyears, inwhichundeniable
achievementshave beenmade ineveryfield,weare enteringupon
the long-awaited time ofcreativity".
(6)Guidelines for governmentactionin 1981-1984, "Clarin",19
August 1980
- 8-
"Everygovernment", adds the IACHRreport, "whichfaces the risk
ofsubversionmustchoosebetween,onthe one hand, following theroadof
respectfor the rule of law and,onthe other, falling intoState terrorism.
Whenagovernmentenjoyswidepopularsupport, the choiceof thefirst road
will alwaysprove successful,as anumberof countries havedemonstrated
bothin the distantpastand in morerecent times".
II. EMERGENCYPOWERS ANDLEGISLATIONANDTHEIRUSE
The legal provisions in force inArgentinarelating to the state
ofemergencycan be classified in fourcategories:
1. Theinstitutionof the Stateof Siege,provided for in
article 23 of the Constitution;
2. Emergency legislation, creating so-called "subversive"
offences. This takes the formof emergencyorderswhich
outlawawholerangeof activities, andspecifiespro-
cedures for enforcingthem,including the extensionof
militaryjurisdiction and the applicationof the Codeof
MilitaryJustice to civilians;
3.Theprovisions of the InstitutionalActof 18June1976,
underwhich theMilitaryJuntaassumed judicialpowers;
and
4.Other repressive legislationaimed at
- ideologicalrepression,
- tradeunion repression,
- repressionofpoliticalactivities,
- expulsion of aliens.
1) Stateof Siege
Requirements for aValid DeclarationofaStateof Siege
Theinstitutionof the State of Siege is governedby theterms
ofarticle 23of the NationalConstitutionwhichstates: "In the event
of internaldisorderorforeign attackendangeringthe operationofthis
Constitutionandof the authorities created thereby, theProvinceor
territoryinwhich the disturbanceoforder exists shallbe declared
inastate ofsiege and the constitutionalguaranteesshall be sus-
pendedtherein. But duringsuch suspensionthe Presidentofthe
Republic shallnot convictor apply punishmentupon his ownauthority.
His power shallbe limited, insuch acase, withrespect to persons,
to arrestingthemor transferring themfromonepoint of theNation to
another, if they donot preferto leaveArgentine territory".
AStateof Siegemay, therefore,be legitimatelydeclared
onlyin the eventof internaldisorderor foreign attack. Evenin
thoseextremecircumstances, the State ofSiegemay not be declared
unlesssuchdisorderorattack actuallyendangers thelawful authorities
of the countryand the Constitution,and may notbe applied beyondthe
provinceor territory affectedbythe danger.
- 9 -
Althougharticle 23 of theConstitutionestablishes notime
limitfor theapplicationof theStateof Siege, it should beinter-
pretedasmeanin that its durationshall not exceedthat ofthe reasons
forwhich it was declared. This interpretationis consistentwith the
limitationexprassly establishedby article86, paragraph19, of the
Constitution; "ThePresidentof theNationhas thefollowingpowers ...
Hedeclares, withtheconsentof the Senate,one or moredistrictsof
the Nationin astateof siege for alimitedperiod in the event of
foreign attack. In the event ofinLernaldisorder,he has this power
onlywhen theCongressis in recess, since this is apowerbelongingto
that body. The Presidentexercises this power under the limitations
prescribedin article23".
Internaldisorderis understood to meanarmeduprising, civil
war orrebellion; and foreignattackthe invasianofArgentineterritory
byforeignmilitary forces for hostilepurposes. AState ofSiegeis a
constitutional remedywithcertainveryprecise characteristics:
a)in the firstplaceit is ajuridical institutionofan
exceptionalnature;
b)itcannct be invokedas apreventivemeasure,and itis
essentialthat the reasons for itwhich are mentionedin
theConstitutionmust genuinelyexist;
c) the internal disorderorthe foreignattackmustbeof
suchgravity thatit has reallyendangered theConstitution
andtheauthorities created thereby;
d)itmustbe limited territoriallyand temporally; -nd
e)its nature is not punitive- this beingafunctionofthe
PenalCode- but defensive.
theState of Siege nowin forcewas declaredon6November1974
duringthe Presidency ofMaria IsabelMartinezdePeron. Ashasbeen
stated,therewasan activemilitary threatat the time, whichprovided
adequatejustificationfor the introductionof theState ofSiege,at
leastinparts if not inthewholeof thecountry.
Whenthe MilitaryJuntaseizedpoweron24 March1976 it
remindedthepopulationthat theStateof Siegewas still ineffect.
It is quite clearfromthespeechofGeneral SuarezMason,which
hasalreadybeen quoted,that by 1977 therewas nolonger any 'internal
disorder'andno constitutional justificationfor continuingthe State of
Siege. However,morethan sixyearsafterthe overthrowofthe constitutional
qovernment it stillremains in force.
Insteadofsafeguardingthe ruleof law,constitutionalscability
andpersonalsecurity, this exceptionalconstitutional remedyhas become
aninstrumentof ideologicalrepressiondesignednot toprotectthe
securityof citizens, butto foster legal insecuritybydiscretionary
actsof the Executive. Inparticular, the Executive is usingits power
to detainpersonswithoutany effectivejudicial reviewonpurely
politicalgrounds.
- 0-
Procedurefor thedeclarationofthe StateofSiege
In the eventof internaldisorder, theorganof theState
empoweredto declare the State of Siege is theCongress (7), and, inthe
eventof foreignattack, theExecutivewith the agreementof the Senate (8).
Inorderfor the declarationof theState of Siege to be con-
stitutionallyvalid, thetwo Chambersof theCongjress mustbothgive
theirconsent, oritmustbe approvedby themif theExecutivehas
declaredit while they are inrecess. Thedecreeissuedby the
Executiveon6November1974 declaringthis emergencymeasurewas
promulgatedwhilethe Congresswas in recess, and gas not submitted
to it for considerationwhen it reconvened. The Stateof Siege was
therefore clearlyunconstitutional, andwas evenmoresoafter the
overthrowofPresidentIsabelPeron and the closingdownofConaress
in 1976.
Underthe Constitution, the Executive lacksauthority to
declareaStateof Sieqewhenthe Congressis in session,andduring
acongressionalrecess its authority to dosois entirelyprovisional,
lastingonlyuntil theChambers reconvene.
Conditions forAdministrativeDetentionofPersors 'heldat the
disposalof the Executive'
The constitutionalbasis for the arrestand administrative
detentionofsuspectswithouttrial underaStateof Siegerests upon
the President'spowerofarrest in article 23 of the Constitution,
which has alreadybeenquoted Theorders (calleddecrees)providing
for administrativedetentionmust fulfil the requirementsset forthin
law 19 549,article 7,relatingto the competence,cause, object,
procedure, motivation,purposeand formofthe arrest. Theseprovide
thatany order for arrest or transferunder theStateof Siegemustbe
issued personally,in writing,by the President. ('Transfer' means
transferto anotherpartof the country). Itmustbebased onreal,
concretegrounds. The reasons for the arrestmust be shown tobe
related to thereasons for the declarationoftheState ofSiege. The
decreesmust thereforebe individual andmust statepreciselythe
particulargrounds in eachcase.
Nonetheless,mostoftheorders for thedetentionof persons
'atthedisposalof the Executive', as itis called,have beensigned
longafter the arreststookplace,in orderto counterpleAsofhabeas
corpusmadeon theirbehalf; inotherinstances,when the courtshave
orderedtherelease ofthe detainees, finding the casebroughtagainst
them inadequate,these ordershave beenused tokeepthemunder
detention. Apartfromthe fact that theseorders are drawnupby the
securityormilitaryforcesand submittedto theExecutivefor sig-
natureafter the actualarrests, theydonot followotherlegal require-
mentsnecessaryfor themtobe valid
(7) Article 67, paragraph26 ofthe Constitution
(8) Article86, paragraph19 of theConstitution
- 11 -
Inmanycases they are "collective"ratherthan individual
orders, inwhich generalcharqes are madeagainstanumberofcitizens.
Moreover,thespecificreasons for eacharrestorder are notstated;
instead, astereotypedformulaapplicable to anydetainedpersonis
usedinall cases.
Among the casesmentionedby the Inter-AmericanCommissionon
Human Rights,No. 2114 (DoraGoldfarband PedroLucero) illustratesthe
ambiguityandvaguenessof the groundsonwhich they arebeing held.
Bothwere arrestedon 24 March1976 and held in themilitary jail of
Mendoza without charges beinq brought against them. Several months
later, on 29 June 1976, they were placed "at the disposal of the
Executive, sincethey had been involved in activitiesjeopardizing
the internalpeaceand the essentialinterestsof the State" (decree
1120). Dr. Goldfarb was a judge in the city of Mendoza.
In the report of the Inter-American Commission on Human Rights
(Chapter IV, The Right to Freedom, paragraph 3, page 140) , the Commission
finds, afterconsideringall the observations and testimonybeforeit,
that: "The detention of individuals for an indefinite time, without
specific charges, without trial, without defense counsel, and without
effective means of defense, is a violation of the right to liberty and
to due processof law. This is all themore serious if we bear inmind
that in many cases, the detainees have been tried and their cases dis-
missed by the civil or military courts, and they are nonetheless still
detainedbyordersof the Executive. The samesituationoccurswhen
individuals have completed their sentence, but despite this, they con-
tinue to be de;:ained sijie die".
The report of the IACIIR pays particular attention to the
detention of persons who have been charged with offences and brought
to trial, and whose caseshave beendismissed. Insteadofbeing
released, they areheld in administrativedetention 'at the disposal
of the Executive'. The IACHR found these casesparticularly grave,
andmentions,amongothers, no. 3905, adisturbing accountof the
experiencesofadoctor, NorbertoIgnacioLiwsky, whowas kidnapped
fromhishome on25 April 1978. After twomonthsofclandestine
detention, duringwhich hewas brutallytortured, he "appeared"at a
policestation inGreater BuenosAires. Amilitarytribunal (known
as aCouncil ofWar) based at the 1stCommandof Palermo,beforewhich
his casewas brought,declareditself incompetenttohandle it,and
forwarded it to the federalcourts. Meanwhile,in decree no. 1613
of 18july 1978, the Executiveordered thearrestofDr.Liwskyin
theexercise of the powers conferredby article 23 of theConstitution.
The federaljudge, Dr.MartinAnzoategui,ordered that thecasebe dis-
missedand Dr. Liwskyreleasedon the grounds ofaninfringement of
law 21 325. During itsvisit, the IACIIR receivedan authenticcopyof
the ruling of thefederal judge. Nonetheless, Dr.Liwsky isstillbeing
detainedatthedisposalofthe P.E.N.atUnit9ofLa Plata,where the
IACHRwas able to interviewhim.
Withregardtopersons who,althoughtheyhave completed their
sentences, arestill in detention, the IACHRreceivednumerouscomplaints,
including the caseofH.R.Perie (no.3390)onwhichthe Commission
requested informationfrom the Argentiniangovernment. The government
repliedby notedated 17October1979. Amongother things, itstated
- 12 -
that: "the Executivefeelsitadvisable to keepPerieunderdetention;
it is ofthe opinionthat hisrelease orhis exitfrom thecountry
wouldposeathreat tothedomesticpeace", andthat"whileit is Perie's
human righttoenjoy freedom itis also ahumanright- notjustof one,
but ofthousandsofArgentines - tolive inpeace".
The IACHR'scommentonthisofficialresponsestated, interalia,
that: "this is amisinterpretation
ofarticleXXVIIIof theAmerican
Declarationof the Rightsand Dutiesof Man. Infact, thousands of
Argentinescouldnot liveinpeace in theabsence ofthe securitythat
the decisionsofthe judiciarywouldbe respected". (9)
The power ofthe Judiciary to reviewconstitutionality
Thefactthat the State of Siegeis in forcedoes notmean
that the Judiciaryceases to functionor toexerciseits full powers.
Nordoesit meanthat the remedyofhabeascorpus losesits effective-
ness. TheSupremeCourtand the lowercourts ofthe Nationhave the
dutytoreviewthe constitutionalityofthe acts oftheexecutive
power. Such areviewmaybedemandedby aperson directlyaffected,
orby anycitizen,as all citizenshave the right tomakesure that
their rightsandguaranteesare beingproperlyrespected (10).
Constitutionally,
alldecisionsofthe executivepowerare
subjectto judicialreview,as aresult ofwhichsuchactsmaybe
acknowledged tobe valid,or pronouncedwhollyorpartiallynulland
void. Althoughthe applicationof theStateofSiegeby themilitary
governmentof --'ntina has led to thevirtual eliminationof the
autonomyof the Juaiciary,and towidespreadlimitation of itspowers
ofreview, includinghabeas corpus, there are some judicialrulings,
suchas the case ofCarlosMarianoZamorano,which confirm thepower
ofreview inherentin theConstitution.
In April 1977, theFederal CourtofAppealquashed the decision
ofalowercourt whichhadrejected the motionofhabeas corpusbrought
onbehalfofZamorano,awell-known advocate. TheCourtstatedthet,
concernedoverthe lengthoftime for whichMr.Zamoranohadbeen
detained,ithad requestedinformationof the Ministerofthe Interior,
whorepliedthat the prisonerhad beendetainedpursuant to thepowers
grantedto the NationalExecutiveunder articles 23 and 86, paragraph
19, of theConstitution,thatDecree 1761/74 had beenissued for this
purpose, and that thereasonswhichled to the ispuance ofthe Decree
continued toexist. TheCourt once againrequestedthenecessary
information,stating to theMinisterthat ithad to -einformedof
(9) IACHRreporton Argentina,pages 162/3.
(10) Article100 of theConstitution: "TheSupremeCourtof
Justice and the lowercourtsofthe Nationhavejurisdiction
over andanddecideall casesdealingwithmattersgoverned
bythe Constitution".
- 13 -
theactualreasons for the particular arrestanddetention". Inreply
theMinistersent acopyofDecree1761/74 (i.e.the detentionorder).
In its judgmentthe Courtstated:
"Asregards the substanceof the issue, it shouldberecalled
thatthisCourthas in previousdecisionsstatedthatthe
Judiciaryisan integralpartoftheGovernment ofthe Republic
and as suchshares the administrationofthe Statein its
judicialand institutional organisation,actingwithinits
ownareaofcompetence.
"Forthisreasonit is its boundendutytosafequard the
rightsand guaranteescontained in tle NationalConstitution,
whichhave beenemphatically reaffirmed inthe Institutional
Actswhichare the basis for thepresentprocessofnational
reorganisation.
"It is notpossibleto acceptthe argumentthat the President
of the Republicis aloneempoweredto examine the situation
of those whoare detainedat his order. Although it is clearly
beyondthe scopeof judicialactivityto considermattersof
politicaland not judicialimport, it is equally clear thatit
is the dutyof the Judiciary oftheNation toexamineexceptional
casessuch as thepresentasto the reasonablenessofthe measures
takenby the Executiveand this is setout inArticles 23, 29 and
95 of the NationalConstitution.
"Thegeneral interesthas alsoto bebalancedby individual
libertyso thatitmust innowaybe supposedthat thosewhoare
detainedat the pleasureofthe Executive aresimply tobe left
to their fateandare removedbeyondthe scopeofanyreviewby
the nationaljudiciary,nomatter howlong theymightbe kept under
arrest.
"It is self-evident thatif attheendof two years ofdetention
of acitizen the Administrationcanshowno otherbasis for this
detentionthan the Decreeunderwhich itwas ordered,and if such
an extendedperiod of timehasnotbeenused diligentlyby the
Administration tocollectevidenceagainst orin favourof the
accused, this Court canonlyconclude that sincethere appearto
existnoelements shnwing thatCarlosMarianoZamorano is
particularlydangerousand inviewofthe timewhichhaselapsed
sincehis arrest,itwouldbeunreasonable andunfounded topro-
long suchasituation."
In conclusion,the judgmentstates:
"althoughit is evidentthat the factualsituationgivingrise
to thedeclarationofthe StateofSiegecontinuesin its entirety,
this in itselfis notsufficient to justify theextensionof
detentions forsuch lengthyperiods oftime thatthey transform
the exceptionalcharacterofthe procedureinquestionintowhat
is reallyapenal sanction."
- 14 -
Ingrantingthe motionof habeas corpus theCourtofAppeal ordered
the Executive torelease the prisoner immediately. Thisorderwas not,
however, executed. It was appealedby the Solicitor-General
andthe
SupremeCourt (inJuly 1977) requested furtherinformation from the
Executive. The latter providedthe information requestedand thiswas
accepted bythe SupremeCourt which,on the basis ofthe arguments
presentedby the Executive,decided that the detentionofZamorano could
continueeven though hewas not broughtto trial.
Effectsof theState of Siegeon constitutional
guarantees
The judgment in the Zamoranocase shows thatit is legitimate
to invoke habeascorpusot any other formof amparowhilethe Stateof
Siege is inforce, since the Judiciary is empowerednotonly to judge the
constitutionality
of the Stateof Siege but alsotheway in which the
Presidentof the Nationexercises the powers conferredonhimby article23
of theConstitution. Any actof theexecutivepowerwhichgoes beyond the
arrestor transferofapersonis unconstitutional.
TheConstitution
confers thisexceptional emergencypowerby virtue of the Stateof Siege
becausewhen it is not in force, only the judgesare empowered to
authorise the arrestanddetentionof citizens.
When the Constitution,in its firstpart,speaksofDeclarations,
Riqhtn and Guarantees, the term "Guarantees" should be understood as
meaning thepractical measures for theprotectionof rights. Apart from
the arrestor transfer by judicial order, no"practicalmeasure for the
protectionof rights"is suspendedduring the State of Siege. The
demarcation of thesuspendedguarantees is afundamentalquestion,as
the exerciseof all theother guaranteesduring thestateofemergency
depends on it. For that reason,whenarticle 23 of theConstitution
says that the powerof the President "shallbe limited... withrespect
to persons, to arresting them or transferring them fromone pointof the
Nationto another,if they do not prefer to leaveArgentine territory",
itmeans that the onlyguaranteessuspendedduring the State of Siege
are thosepertaining to the rightnot to be arrestedor transferred
except bydecisionof the regular judges.
Whereapersonis arrestedor transferredunder the emergency
powersof the State ofSiege, he has the right under article 23 of the
Constitution to leave the country. If he expresses adesire to dothis,
he cannot be kept in detention, butmust be immediatelyoffered a'chance
to goabroad. This rightofthe detainee to leave the country, known
as the "rightof option" is absoluteandof benefit exclusively to the
arrestedor transferredperson. Any refusalordelayin grantingthe
request to leavemake thedetentionorarrest illegal,withthe effect
thatapleaof habeas corpus resultingin animmediate release then
becomespossible.
In practice,however,this "rightof option"hasbecome
virtuallyan act ofgrace grantedby the Executiveon thebasisof
criteriawhich are sosubjectiveand confidential thatit is usually
impossibleto findout why aperson, afteryearsofdetention,is
grantedor deniedpermission toleave thecountry.
- 15 -
Therules governing the right to leavethe countrywere laid
down in decreeno. 807of 1April 1975, but they have becomesubject
to progressivelystricterconditions to the point whereit is nowno
lonqer availableexcept in cases in whichthe Presidentand his
AdvisoryCommission (11)findthat "thedetaineewill not endanger the
peace and securityof the nation if allowed to leave thenational
territory".
After the coup, all requests to exercise this option were
turned down, regardlessof the stagewhich had been reached in each
individual case (law 21 275 of 29 March 1976). Then the rightwas
suspended for a period of l(0 days by law 21 448 of 27 October 1976.
On the same day, law 21 449 of 27 October 1976, made it possible to
"request to use this right", though stipulating
that the Executive
shall grant it only to those detainees who, while outside the country,
do not endanger national peace and securit,'. However, law 21 568 of
30 April 1977again suspended the right c, optionfor 150days starting
on 1 May 1977. Eventually, a statute of 1 November 1977 lifted the
suspension, and the granting of the right wlas made contingent on the assess-
ment which the EIxecutive and its Advisory Commission made of the potential
conduct of the detainee outside the country (12).
Anotherlaw, no. 21 449,was also passedon 27 October1976
stating that anyone who exercised his right of option and wentabroad
was prohibited fromreturning to the country until the State ofSiege
was lifted, unless he had aspecial authorisation to doso from the
Executive. Anyonereturning inviolationof this lawis liable to4to
8years' imprisonment.
Theprocedurewas againamended by law21 650of 26 September
1977. Thisprovided thatarrestedpersonscan request the optionninety
daysafter thedate of thedecree underwhich they are being held. An
indicationby the host country thatit iswilling toreceive the detaineeis
required. The President is to grantordeny the requestwithin the next
120days. Sixmonthsafteradenial,anewrequestmaybe made.
In an interviewwhichthe IACIRhad withtheMinisterofthe
Interior,GeneralHarguindeguy (page170ofthe report), he acknowledged
that "anylimitationon the exerciseofthe right/of option/depends
uponthe degreeof potentialdangerof the individualanduponreasons of
security,and thereforeconsiderationis given to thevaryingdegreesof
control that the governmentsof the receivingcountries mighthave over
the individualstowhomthe right to leaveArgentinais granted".
(11) Presidedoverby the Ministryof the Interior andconsisting of
one representativeofeachof theArmedForces, theUnder-Secretary
of the InteriorandJustice,and anUnder-Secretaryof theSecretariat
of StateIntelligence.
(12) The AdvisoryCommissionwas createdby the InstitutionalActof
1September1977.
- 16 -
Conclusion
Boththedeclarationof theState ofSiegeand thewayithas been
put intoeffectby themilitarygovernment are inviolationofthe con-
stitutionalnormsto which itshouldconform if it is to be validly
invoked.
Forthis reason, the IACHRincludedamong its recommendationsto
the Argentine government (page265 of the report) the following:
"4. To considerthepossibilityoflifting theState of Siege,
inviewof thefact that, accordingto repeatedstatementsmade
by theArgentinegovernment,the reasons forwhich itwas imposed
nolongerexist.
"5. Asregards detaineesat thedisposal ofthe Executive (PEN)
and theright ofoption to leavethe country, thatthe following
mecsuresbe adopted:
(a) That the powergranted to the Head of Statepursuant
toArticle 23 of the Constitution,which authorizes the
the detentionofpersons duringastate ofsiege, bemade
subjectto atestofreasonable cause,and that suchdet-
entions not beextended indefinitely;
(b) Thatthe followingpersons, detainedat thedisposal
ofthe Executive (PEN), be released:
i. Personswhohave beendetainedwithout reasonable
causeor for aprolongedperiodof time;
ii. Personswho havebeen acquittedor whohave already
compleced theirsentences;
iii.Personswho are eligible for parole.
(c) That the exercise ofthe right ofoptionto leave
the countrybe completelyrestored,sothatthe processing
of applicationsnot bedelayedin anywaythatmight
hinder the actual exerciseofthis right."
2) EmergencyLegislation
JurisdictionofMilitaryCourts
Laws 21 264, 21 268 and21 272, whichwereenactedimmediately
after the newgovernmenthad come topower (13)dealtwith the application
of the CodeofMilitaryJustice, the formationofmilitary courts
known as SpecialStandingCouncilsofWar,trial by suchCouncils
using summarywartimeprocedures, the applicationofpenaltieslaid
downin the MilitaryCode, includingthe deathpenalty.
(13) Publishedin the BoletinOficial of 26March1976 (the firsttwo)
and 31March 1976 (the third).
- 17 -
On 1December 1976 theseemergency laws were repealedby law
21 463 and replacedby law21 461, whose scope far exceedsthe limits
set by the three former laws.
Law21 461set up amilitarysystemof justice anddetermined
which typesofoffences covered by theOrdinaryPenal Codeand theCode
of MilitaryJusticeshould be triedby militarycourts.
Article 1providedthatmilitarycourtswould try persons
involved in the acts orsituationslisted in sub-paragraphsa)andb),
which refer tocertain categoriesofconductdescribed in theCodeof
MilitaryJusticeand the Penal Code, thesewereto be triedin accord-
ancewithmilitaryproceduresby theCouncilsofWarcreated under
article 4of the law.
Article 1,sub-paragrapha)covers theprovisions oftheCode
of MilitaryJusticedealingwiththe followingoffencescommittedby
civilians: proposalof conspiracy; conspiracy; insubordination;
violence; resistancewithacts ofviolence; incitement orpromotion
of sedition; incitement to desertionandnon-compliancewith
obligationsunder the Lawof National Defence or service commitments (14).
Sub-paragraphb)of the s.ime article refers to tha following
provisions ofthe PenalCode: article 80bis, sub-paragraph2)- qualified
homicide when the victimis amemberof the securityforces, evenoff-
duty; articles 92 and93 - attenuatedinjuries; article 222- disclosure
ofmilitaryorpolitical secrets related to security; article 223 - espion-
agei article 224 - prohibited reproductions; and article 225- attackson
the armed forcesorsecurity forces. Military jurisdictioncoversoffences
involvingdamage to any building, installation, ship, aircraft, vehicleof
anysort, and arms or anyother property"placedat the disposalof the
Armed Forces, the security, police andpenitentiary forces,providedthat
such damagewas the subversivepurposeof the acts committed".
Article 3of the lawappliesmilitaryjurisdiction toinstiqators
(article209of thePenalCode); membersof illegal associations (articles
210, 210bis and 210 ter); persons advocatingsubversive acts; persons
corruptingtroops or usurpingpositionsof command (article234); persons
guilty ofreceivingcorrupt favours orof receivinggoods ofsuspicious
origin.
Fromarticle 4onwards, the lawdealswith the establishmentand
functioningof theSpecial StandingCouncilsofWarresponsible for trying
offences coveredby the law. Thecommandersofdefence zonesand subzones,
orofficersofequivalent rank in the Navy andAirForce, are to be
responsible forestablishing the Councils in the lightofthe numberof
cases, andappoint theirmembers (article5). ThePresidentofthe
Council shall always be ahigh-rankingofficer, generalor the equivalent,
foroffencescarryingthedeathpenalty (article6,sub-paragrapha), and a
colonel or the equivalent if themaximumpenaltyis 25 yearsimprisonment
(sub-paragraphb).
(14)Articles 647 (lastparagraph); 669, 671; 693; 727; 728; 820 (last
paragraph); 826; 859; and870of theCodeofMilitaryJustice.
- 18 -
The applicableprocedureis thatset forth inarticles 502 and 504
of the Code ofMilitaryJustice ("summaryprocedure in timeof peace').
In firmlyen'inciating the principleofthe sep.rationofpowers,
andaccordingamarginalstatus to the military jurisdiction, the Con-
stitutionfollowed the trendcurrentat the time of itselaboration,
drawingon thedraftconstitutionof JuanBautistaAlberdi (Basicconsider-
ationsand pointsofdeparture for the nationalorganization)and onthe
thinkingembodied in the constitutionsof the UnitedStates andEuropean
countries (15).
Evenin the caseofa"foreignwar", the civiliancourtsmust
dealwith cases involvingcrimes againstthe sovereigntyand security
oftheNationi if the offendersarecivilidtis. The "warpowers"of the
Executiveas Commander-in-Chiefofall the seaand land forcesof the
Nationemanate from theConstitution,and cannotprevailover the norms
whichthatConstitutionestablishes. Inaddition, the PenalCodemakes
specific provisionforthe interventionof civilians in the fieldof
militaryaction, theseoffencesbeingpunishedbyextremely severepen-
altieswhichwerefurther strengthenedafter the reformof 1July 1976
andincludethedeathpenalty.
Thepoweror capacityof theMilitaryCourts topass judgment
is confinedto specificallymilitaryoffencesof whichservingmili-
tarypersonnel areaccused.
Theemergency laws withwhichweare concerned,however,are
basedon adifferentcriterion,in that they ascribe tomilitary
jurisdiction abroad range of typesofoffencesby civilians directed
notonlyagainst the armed forces but alsoagainstothersecurity
forces, includingpolice andprisonpersonnel. Theyalso include
offenceswhichhave nothingtodowiththe armed forces, including
manyminor contraventionsof the law.
Inpractice,through the applicationofthe doctrineof
national security, the superiorityof rhe militaryover theordinary
civilian jurisdictionhas nowbeenestablished. Moreover, themilitary
jurisdiction has conferreduponitselfthe power to determineits own
competence,andguaranteesofdue process are lacking,withpre-trial
enquiriesbcing held to constitutefull proofunder law21 460.
Powers ofarrestandpreliminaryinvestigations
Law21 460 was promulgated on18 November1976. This law is
the mostseriousof the measuresadoptedby the militarygovernment
in its repurcussionson individual security. It is procedural,
empowering the federal police,the provincialpolice forces, the
nationalgendarmerie, the naval prefecturaand thearmed forces to
intervene in "theinvestigationof subversiveoffences"bydetaining
(15)Cf.French lawof17 October1977, article 4: "Nooffenceismilitary
unlesscommitted byanindividualwhobelongs to thearmy".
- 19-
suspects. The law alsostipulates- in article9- that statements
and otherevidencesubmitted tothe (military)examiningmagistrate
in thepre-trial proceedings shallhave fullvalue asproofuntil the
contrary is demonstrated,withno need for verification (bythe
magistrate).
Unlike thenormal procedure,in whichthe examiningmagistrate,
whois amember of the judiciary,verifies the preliminary enquiries
madebythe police, law 21 460presumes from the outset thatthepro-
cedurescarriedout by the armed forces ire whollyabove reproach.
Irregularities in the conductof the preliminaryenquiriesremain
uncorrected and judgment is pronouncedon the basis ofsuchevidence,
the presumptionof legalitybeing appliedto rejectout of handany
doubt as to the accuracyof thoseenquiries.
As the preliminary enquiriesare held to constitute fully
validproof, the effectsof tortureor any other formof duressare
notconsideredor taken into account. As was to be expected,this
led to amassiveincrease into the useof torture, alreadyafrequent
practiceduring interrogation,and in turn to the phenomenonof
"disappearances"onatrulymassive scale. Human rightsorganisations
havedetail- of the disappearanceofover 6,000 suspects and they
believe there are several thousand more cases which have not been
reported to them.
When explaining the reasons for the law, the Ministry of
Justicestated in the preface to the text that"this simple and
flexibleprocedurewillmake it possibleto assemble rapidly and
concretely all the evidencewhich is necessaryso that the competent
court can,indue course, judge thE matterand findthe accusedguilty
or innocent".
Article 1of the law statesthat investigationbymeansof the
summaryprocedureshall be appropriatewhen informationfrom any source
whatsoeversuggeststhat asubversiveoffencemay havebeencommitted.
The substanceofthe concept"subversive" is not onlythat
governedby law21 461, referred to above,but alsothat defined
in the broadestpossibletermsby the emergencyprovisionswhich repress
the disseminationof ideas, aswell as strikesand othereconomicand
social conflictsandpoliticalactivities. Thesewill be examinedin
moredetail inSectionIV below,togetherwithSecurityLaws 20 840
(andamendments)and 21 338.
Article 2providesfor theintervention,in suchcases,of the
federal police, the provincialpolice forces, thenationalgendarmerie,
the navalprefecturaorthe armed forces, givingthemnewpowers todetain
suspectscaught in flagrantedelictuor those inrespectofwhomthere
are strong indicationsorprima faci6 evidenceof guilt.
Article 3stipulates that "the chiefof theunitorequivalent
body shallbe authorized to appointtheperson in chargeof the
preliminaryproceedings; whilearticle 4provides forthe application
of the provisionsof theCodeof PenalProcedure. However, thepro-
tection impliedby thislatterclause becamea"deadletter"by
virtueof article 9ofthe law,wherebythemilitaryexaminingmagis-
trate is notrequiredto verify the evidencesubmittedto him.
- 20-
The rightof the individual
tohis 'naturaljurisdiction'
Militaryjurisdiction
is of anadministrative
and disciplinary
character.
For this reason, it is applied byofficersofthe armed
forces onthe basis ofprinciples
ofhierarchyand discipline.
The
highestmilitaryauthorities
in the placeorregion concernedare
empowered to appointexaminingmagistrates
and also appoint the members
of the Councilsof War, and give or withholdtheirconsent to their
rulings. In otherwords, they applyprincipleswhichare completely
different
fromthe impartiality
and independence
which shouldgovern
the judiciary.
Indeed, the judiciary(16) has been systematically
and
permanently
pushedaside to makeway for the armed forcesand the
securityforces, whichare engagedinoperatingasystemofpolitical
repression.
The 1853Constitution
endowedArgentinawith alegalsystem
ofscrupulously
enumerated individual
rights. Article 18 of that
Constitution
provides that"defenceof the personby trial is in-
violable; no inhabitant
shall be deniedtrial byhis natural judges,
nor judged byspecial commissions".
This provisionis basedona
historical tradition,
wherebythe orJinary civiliancourts are
empowered tohandleall cases, includingcrimesagainst the
sovereignty
and securityof the nation, and the judges ofthese
courtsare the 'natural judges' ofcivilians.
The natural judges of armed forceson the other hand, are the
judgesof the militarycourts,out theyclearlycannot be the natural
judgesof civilians.
Thos- who argue that the intervention
of
military courtsemanates from the powerof the State toprotect its
institutions
fromviolentattack, not only circumvent
constitutional
principles
and totally fail to take accountof the principleof the
divisionofpowersand guarantees
ofdue process,but also wouldhave
"statesofemergency" become the normalwayto respond to any emergency
whatsoever.
The Constitution
wouldthen governthoseperiodswhich
wereperceived to be "normal",in accordancewiththe assessmentof
thosein power, and couldbesupplantedat any time they thoughtfit
by systemsdiametrically
opposedto the principlesonwhich they,
and the institutions
of the nation,are supposedlybased.
(16) It shouldbe noted that, under theAct for the Processof
NationalReorganization
of 24 March 1976,theSupremeCourt,
the Attorney-General
and the HigherProvincial
Courtswere
removedfromthe sphereofthe Judiciary.
All othermembers
oftheJudiciary lost all securityof tenure andbecame liable
to transfer tootherpostsor toremoval fromofficewithout
anyreasons or justification
being given.
- 21 -
Theguaranteeof non-interferencebythe Executive inthe
administrationof justice is set forthin articles94, 95, and 100
of the ArgentineConstitutionwhicharticle3of lawno. 27 of 6October
1862establishesas the fundamentallawgoverning thenational courts
andjudges in thedischargeof their functions (17).
Militaryjustice procedures
In peacetimethe "summaryproceedings"describedin article 502
of the Codeof MilitaryJustice,are exceptional in nature,and apply
onlywhen"there is an immediate need topunish anoffencein order to
maintainthemorale, the discipline and the fightingspiritof the armed
forces, and in the case ofgrave offences such as treason,uprising,
sedition, looting, violenceagainstsuperiors,attacks onguardsand
themurder of sentries". Moreover they applyonly topersonnelof th2
armedforces. Ashas beenseen, law21 461 appliesthissummarypro-
cedure toawhole range ofoffences,of whichvery fewfall withinthe
"extraordinarysituations"provided for in article502 of the Codeof
,ilitary Justice. Onthe contrary,apart fromthe fact thatit refers
to conducton the partofcivilians, the terminologyof this lawis so
ambiguous that it applies loosely to almostany kind ofsituation: it
couldeven include aspeechmadebyatradeunionist in privateor in
public ("advocacyof an offence withsubversivemotivationor objectives"),
or the distributionof leafletsby amember of adisbandedpolitical
organization ("unlawfulassociation"), or participationinastrike
whichhasbeendeclaredillegal ("non-fulfilmentof obligations under
thenationaldefence lawafter aparticularplace ofworkhas been
declaredamilitary installation"), etc.
Militaryprocedureprevents the accusedhavingacivilian
defence lawyer. Accordingto article97 of theCodeofMilitary
Justice,the accusedmust be representedby aservingor retired
officer,whoneed not be, and almostinvariablyis not, alawyer.
It is appaentthatthe closedlegal orderofmilitarypro-
cedurecontains noneofthe prerequisitesofdueprocess. Amilitary
officer representingadefendantisperformingan "actof service".
He is doinghis duty to the army, and cannotmake value judgmentsun-
favourable tothe politicaloradministrativeactionsofthe govern-
ment. In practice,hewill notchallengethe validityofthepre-trial
enquiriesmadeby the securityforces, whichneedno verificationby
theexaminingmagistrate or the trialcourt.
Under the militarysummaryproceedings, the followingrequirements
of dueprocessare lacking:
a)the existenceofan independentcourtconsistingofjudges
who cannotbe removed fromoffice as longas their conduct
remains abovereproach;
(17) Cf. Article94 of theConstitution: "TheJudicialPowerofthe
Nationshallbe vestedinaSupremeCourtofJustice andin
such lower courtsas the Congressmayestablishin the territory
of theNation". Article95: "Innocasemay the Presidentof
the Nationexercisejudicial functions, assumejurisdiction
overpendingcases orre-openthose decided".
- 22 -
b) the rightof the accusedtochoosehis owndefence lawyer;
c) the rightof thedefence lawyer toact from the momentof
arrest;
d)therequirement that thechargesbemadepublic;
e)the righttobe tried byan accusatory andnot an inquisi-
torialprocedure;
f)effectiverecourseat all stages of theproceedings;
g)equalityofrights betweenthe prosecution andthe defence;
and
h)presumptionof innocenceuntil the contrary is proved.
Referring to the guarantees of the adminisLrationofjustice,
the reportofthe IACHR (ChapterVI, page 224) pointsout that the
"declarationof the presumption of innocence"provided"or in article
XXVI of theAmericanDeclarationof Human Rights andDuties has been
abolished in Argentinaas ajudicialguarantee. As for the right to an
impartial trial, the report states that "Accordingto this information
(receivedby the Commission)the militarycourts composedofofficers
involved in the repressionof thecrimes they are judging,do notoffer
guaranteesof sufficient impartiality".
The IACIIR recommends (page265, paragraph9)that the Argentine
government adopt the followingmeasures relatedtodueprezessguaran-
tees andlegal defence:
"a) Toassure legal due processguarantees to personswho are
brought to trial before militarycourts,especially the right
toadefence by an attorneyof the defendant'schoosing.
"b) Toappoint aCommission ofqualified juriststo study
the trialsconductedby militarytribunals during the state
ofsiege, and tomakepertinen,recommendationsin those cases
wheredueprocessguarantees werelacking.
"c) Toguaranteeand facilitatean effective judicial
investigationof thecases ofpersonsdetainedunder the
securitylaws.
"d) Tofacilitate theprovisionofaneffectivedefence
byattorneys providinglegal servicesto defendants."
- 23 -
III. ASSUMPTIONBY THEMILITARYJUNTAOFJURISDICTIONTOTRYPERSONS
FORJEOPARDIZINGTHE HIGHERINTERESTSOF THENATION
By article 1of theActof InstitutionalResponsibilityof 18
June 1976: "TheMilitaryJunta assumes the powerand responsibilityto
judgethe conductof personshaving jeopardizedthe higher interests
ofthe nationby failure to complywithbasicmoralprinciples inthe
performanceofpublic,politicalor unionfunctionsor by activities
detrimental to the public interest".
Thisextraordinaryprovision takes no accountwhatsoever of the
fundamentalprinciple onwhich the administrationof justiceshouldbe
based: nullumcrimen, nullapena sine lege. Moreover, it explicitly
established the retroactivity of the law creating this vague new
categoryofoffence. Citizensare foundguiltyin respect ofearlier
conductnotcovered by thecategories of offences listedin the Penal
Code butwhich, as soonas thespecial provisionis enacted,become
offences.
The characterization of the conduct on which the charges are
based maybe so thoroughly subjective as to makeamockery ofthe
guarantee ofrespect for freedom. TheExecutivecan choose to judge
an official on the basis of his actions during an earlier period when
his conductwas consideredproperand lawful, or aunionleaderwho,
in the lightof his past record (oppositionto acertaineconomic
policy,for example), could be regardedas having"jeopardized the
interestsof the nation".
Theseprovisions are contraryto a'ticle 18of the Constitution:
"Noinhabitantof the nation may be r"unished w,*thoutapriorjudgment
pursuant to a law whichantedatesthe offence",and article 95: "In no
casemaythePresidentof the Natior exercise judicial functions, assume
jurisdiction overpendingcases, orre-open those decided".
IV. OTHERREPRESSIVELEGISLATION
IdeologicalRepression
On 28 September1974, duringtheperiodof constitutional
government,SecurityLaw 20840was adoptedin orderto "protectthe
institutionalorderand the socialpeaceofthe nation". Article 1
providesforpenalties of3to 8years' imprisonment,unlessthe
offenderis liable to somemore severepunishment, for personswho,
inpursuitof theirideological aims, "attemptor advocate", in any
mannerwhatsoever,thedisruptionor terminationof theinstitutional
order and socialpeaceof the nationinamannernotestablished bythe
Constitutionand the legalprovisionswhichorganizethepolitical,
economic andsocial life ofthe nation.
Afterthe coupd'dtatof 24 March1976, the languageof the
articlebecameclearly inappositebecause of itsreference to the
Constitution,whenanew legal orderhadbeencreatedon the basis of
theStatuteonNational Reorganizationand the InstitutionalActs.
This accounts for the change introducedby law21 459,which,instead
ofthe expression"notestablishedby theConstitutionand the legal
provisions",reads:"notestablishedby the normativeprovisions".
- 24 -
The contentof theSecurityLawhadalreadybeenextended,
immediatelyafter theassumption ofpowerby the militaryauthorities,
throughcommuniqu619, whichprovidesfor anindefiniteprison term
for "anyonewhoin anymannerwhatsoeverdisseminates,divulgesor
propagatescommunications or images emanatingfromor attributedto
unlawfulassociations,orpersonsorgroupsknownto bedevoted to
subversiveor terroristactivities. Anyonewhoin anymannerwhatso-
everdisseminates,divulgesorpropagatesnews, communications,or
images withaviewtodisrupting, jeopardizingor slanderingthe
activitiesof thearmed forces, orsecurityorpoliceforceswillbe
punishedby up to tenyears' imprisonment".
Theapplicationof article1of SecurityLaw20 840 inpresent
circumstances assumes an almost farcical aspect. This lawwas enacted
at atimeof constitutionalgovernment. If everthe offencewas
committed of attemptingoradvocating "tile disruptionor termination
of theinstitutional order ..in amanner notestablishedby the
Constitution",itwas committedby the authors of themilitary coup
of 24 March 1976. As thereis nowno wayofterminatingthe existing
institutionalorderin amanner "establisnedby the normativeprovisions",
it means thatanyonewhoadvocates the returnto constitutional ruleis
committingan offenceunder this law.
Article 2ofthe law refers to "actsof disclosure,propaganda
ordissmentation tending towards indoctrination,proselytizingor
instruction in the types ofconductdescribed inarticle 1". Thewords
"tendingtowards"are extremelyvague to create apenaloffence. For
example, anopinionvoicedby ateacher in the sphereofhistory,
sociologyoreconomics couldqualifyas an offence if it refers to
contentious or polemicalmatters, and the mereteaching ofcertain
periodsor phasesin the life of the people could becomeprohibited.
The lawalso punishes anyonewhopossesses, displays,prints,publishes,
reproduces, distributesorsuppliesmaterial which serves to reporton
orto propagateacts,communicationsor imagesrelated to the categories
of conductdescribed inarticle 1. Thesepenal categoriesare in-
compatiblewiththe guaranteesof freedomof expressionandof the
press inarticles 14 and 32 of theConstitution (18). Thelawputs
at risk the journalistorradio announcerwho conveys information
whichmaybe thought to tend towards indoctrinationaimed at the
terminationof the existinginstitutionalorder, as well as the editor
ofany publicationcontaining it.
Themerepossessionofsuchmaterial is included amongthe
penal categoriesdefinedby this order: inother words, someone who
hasprohibitedpublicationsin archiveswhichhekeeps for hisown
personal information,aswell as someone whohappens tobe inpossession
ofan offendingleaflet,would bothqualify as offenders.
(18)"Allinhabitantsofthe Nationenjoy the righttopublish their
ideasthrough thepresswithoutpreviouscensorship"; "The
FederalCongress shallnot enactlaws thatrestrict thefreedom
ofthepressorthatestablish federaljurisdictionoverit".
- 25 -
Anamendment to theSecurityLaw,by lawno. 21 886, relates
toteaching. In violationof the constitutional"rightto learn and
to teach", teachers mayfindthat they have committedanoffence if
whatthey tell theirstudonts fallswithinabroadrangeofprohibited
areas (19).
Thelaw as amended by theMilitaryJunta,prescribes apunish-
mentof twoto sixyears' imprisonment for thosewho "by virtueof
their knowledge,profession,duties, employment,authorityorseniority
behave insuch away that theirinfluenceonothers shouldcausein
them, either individuallyor collectively, the kindsof conductdes-
cribedin article 1of th SecurityLaw". In otherwords, the innocent
conductofateacher in giving instruction to hispupilsmay be
punishedmerelybecauseitmay havearousedinone ofthem the idea
ofactingin one of the waysdescribed in article1.
TheArgentineFederationofBar Associations (FACA)made
clear in astatementdated 4August1979that "enforcementof lawno.
20840,prejudicial to freedomof thepress, cannotbemaintained
without injury to the Republic, which iswhy its immediatemodification
isurged" (20).
Suppressionoftrade unionrights
Whenitseizedpoweron24 March1976, theMilitaryJunta
issued communiqu6no. 3from the headquartersof the GeneralArmy
Commandmakinginfringements and shortcomings in theprovisionof
publicservices subject tomilitary authorityandliable topunish-
mentaccordingto the CodeofMilitaryJustice. Communiqu6no. 4,
whichwasissuedat the same time, stipulated that"Thesourcesof
production andboth stateand privateplacesofwork are considered
to be objectivesofmilitary interest". In thisway, at astroke,all
public servicesand allworkplacesbecame subject tomilitaryjuris-
diction.
(1.9)The ProvincialSecretariatof Educationbanned the teachingof
modernmathematics in thecity ofCordoba; the circulationof the
worksofvarious Latin-Americanauthors such as GarciaMarquez
and PabloNerudais prohibitedthroughoutthe country. Theban
onthe circulationof Le PetitPrince,bySaint-Exup~ry,brought
avigorousprotest fromthe writerErnestoSabato. Atthe present
time, the Executivehas bannedthe distributfon,sale andcir-
culationof the followingpublications: the EnciclopediaSalvat
DiccionarioyUniversitasand the GranEnciclopediadel Saber
(Vols.2and 9), as officially announced by the Secretariatof
Public Information (Clarin,30September 1980).
(20)500journalistshave beenobliged toleave the countryandmany
othershavedisappearedor arebeingdetained. The listsubmitted
to the IACHRby the CommissionofRelativesofJournalistsgives
the namesof 68missingjournalists and 80 whohave beendetained
onpoliticalgrounds. (Reportofthe IACHR,page 236/7).
- 26-
Communiqudno. 25 decreedthedissolutionof theCGT, the
tradeunionconfederation,
theseizure ofits fundsand the termin-
ationofthe status ofthetradeunions. On 26 March1976military
personneloccupiedthe centralunionheadquartersofthe engineering,
metalworkinq, textile,constructionand otherunionsof the federal
capital. Decree no. 10 prohibitedthroughout the nationalterritory
anyactivity on the partof theprincipal tradeunions, referredto
as "the62 organizations",
or anyotherswhichmightreplace them.
Thisdecreewasdirectedagainst the federationsand unionswhich
comprise 75% cftheworkers inthe country. Paragraph7ofthe Act
for theProcessof the Reorganization
ofthe Nationsuspendedtrade
union activities indefinitely, thuspreventingany attemptto obtain
improvements;
inworkingconditions. Decree 9776prohibited theholding
of anyclectionsand the conveningof anyregularor extraordinary
assemblies orcongressesofassociationsofemployersorwoikers'
associations.
Therestrictions on tradeunionactivities announcedin the
first fewmonthsof themilitarygovernmentweregraduallymademore
severeinsomecases,while in otherstheyweresimplyabolished (1).
Among themore important lawswas law21 400of3September
1976, wherebymeasuresofdirectaction on thepartofemployers and
workersweresuspended. Althoughtheorderwas intended toapply to
"circumstances
inwhichthe publicorderisdisrupted, aneconomicor
socialemergencyexistsoraStateof Siege has beendeclared",and the
Executivewas givendiscretionarypowersas to whenitshouldenter
intoeffect, itdid infact enterintoforce as soonas itwas
enacted.
Thepenaltiesfor workerswlotakepartinany strike,work
stoppageorslow-downorother actionwhich could affectproduction
are from1to 6years' imprisonment,unlessthe offenderisliable to
somemoreseverepunishment (article5).
Whenspeakingof tradeunionrights, the IACHRpointsoutin
itsreportthat:
"Itis amatterof concerntothe Commissionthat for
severalyears,but especiallysince24March1976, trade
union leadershave beenheldprisonerinindustrialcenters
ofArgentinawithout judicialorder, ordetainedatthe
dispositionofthe Executive (PEN)orhavedisappeared".
(22).
(21)Law 21 261 suspendedfor an indefiniteperiod the rightto strike.
Law21 322 dissolvedthe lowerlevel unionbodies.
(22)Theprovisionswhichrestrictorabolish unionrightsviolate
article 14 of theConstitution,
as enlargedby theamendments
of 24 October 1957, which incorporate,inter alia,individual
socio-economic
rights. Article 14 guaranteesfreedomof
assemblyand association (IACHRreport,page 241).
- 27 -
Prohibitionofpolitical activities
TheArgentine Constitutionof 1853 is basedonthe notionof
representativedemocracy,whichhas two essential components: popular
elections andpublicparticipation.
Theprincipleof popular electionswasendorsedin the
preambleand in articles1,22 and 30,and theprincipleof the
participationof all the sectorsoi the country in political
decisions, in articles 1,5,6,14, 37, 46, and103. The supreme
powersassumed by the MilitaryJuntain March 1976 abolishthis
system. The establishmentof ncw "categoriesof offences"forpersons
engagedinpoliticalactivities is ofunprecedentedgravity inthe
institutionaland legal historyof the country. Theprohibitionof
political activitycontained in law21 323 of2June 1976 is in itself
sufficienttomake the lawunconstitutional. In addition,the insertion
ofthephrase "organizationalwork andpolitical and ideological
propaganda" meansthat theprohibition could coverany sortofopinion,
not justonpoliticalmatters, sincethe term"ideology"may involve
underlyingscientific,cultural,economicor other ideas.
Laws 21 322 and 21 325, enactedon the same day,prescribe
prison terms of 3to8years,and 2to 4years,respectively, for any
participationor involvementinactivities relatedto orconnected
withorganizationswhich havebeendeclared dissolved (aslistedin
law 21 322)or illegal (as listedin law 21 325). The distinction
between the twois that the organizationsmentioned in law21 322have
nolegal standing; those mentioned inlaw 21 325 appearto belegiti-
matebut mustbe dissolved. Hence the penalitiesare lighter in the
secondcase. Thepenal categories, however,are identical.
Themostseriousaspectof theseprovisions is that their
effectis not limited tothose whocarry outor participatein the
activities ofprohibitedpolitical, unionor solidaritygroups (such
as the Coordinationof the Movementfor Aidto Chile,orthe Forum
forRespectforHuman Rights, tomentiononlytwo ofthe twenty-six
restrictively listedby law21 325). Asin other laws, thelanguage
used is sovague thatthesubjective elementof intent is not
required inorder for anoffence to occur. For example,merely
"beinginpossession"of somematerialrelated to theorganizations
whichhavebeendeclareddissolved orillegal is quite
sufficient (23).
(23)Eachof theselawspunishesthosewho"havein theirpossession,
display,print,publish,reproduce,distributeorsupplybyany
meanswhatsoeverprintedorengravedmaterialcontainingafull
orpartialaccountof facts, communicationsor imageslinkedwith
orrelatedto thegroupsororganizationsmentionedinarticle 1".
- 28-
V. ABUSESOFPOWER: TORTUREANDDISAPPEARANCES
As adirectresult of the extension
of thepowers ofarrest
anddetention
of thesecurity
forces, and thelack ofany effective
judicial
supervision
or reviewof theiractivities,
abusesofpower
have takenplaceonanappalling
scale. Apart fromthe generalun-
certainty
and fearwhichinevitably
invades any societyinwhich
fundamental
freedoms
arerepressed,
the worstcategories
ofabuse
havebeen thoseof the torture anddisappearance
ofprisoners
at
handsof the security
authorities.
the
Savein the case ofpersonswhose
detention
is admitted
withinafewweeks of arrest, "disappearance"
usually means that the victimhassuffered
"extra-judicial
execution".
TheArgentine
government
evenpassed alaw (22 068of 12 September
1979) enabling
the families
to ask for apresumption
of deathearlier
than in the usual caseofmissingpersons.
The lawwas deeplyresented
by the families
ofthedisappeared
andvery fewapplications
havebeen
madeunderit.
During the first fouryears ofthemilitary
regime torture
and ill-treatment
of detainees
became adaily andgeneralised
practice,
usedin secretinterrogation
centresby officials
whohad beentrained
in the use of scientific
methods to increase
the victims'
sufferings.
Torture,
often accompanied
by subsequent
'disappearances',
was used in
the firststage as amethodofrepression
againstmembers
ofthe armed
movements.
Later theywere turned againstother left-wing
groups,
Marxistand non-Marxist,
and finallywere extended
to all whowere
suspected
ofpolitical
opposition.
Torture normally
takesplaceduringthe period inwhich sus-
pects are heldincommunicado,
where they no longerexist for the out-
sideworld,since the suspects
aredeprived
ofall communication
with
theirfamily, friends
orlawyers.
Torturehas beenused variously
to
obtain information,
extractaconfession,
to punishthe prisoner,
or
to intimidate
the publicin general,
in orderto avoid anyopposition
to the maintenance
in power of the military
regime.
Therehave beenmany cases in whichdetainees
havediedunder
torture,
or havedisappeared.
Humanrights organizations
inArgentina
have listedby nameover6,000disappeared
persons,
and theybelieve
that there areseveral thousand
more whose names andparticulars
have
not beenreported
to them. When persons disappear,
the authorities
give no explanation
orinformation
concerning
the arrestand, indeed,
usually denythat the persons concerned
havebeenarrested.
There
are few subjects
whichhave arousedsuchprofound
concern amongpublic
opinionas the phenomenon
ofdisappearances.
Itconstitutes
the
gravest
challenge
of all to the very conceptofhumanrights, since
it converts
apersoninto anon-person
and results
in the violation
ofawholeseries of individual
humanrights.
Evenif disappearances
aredirected
primarily
againstthe
prisoner,
theyalsoaffect the wives, husbands,
children
and parents
ofthe victim,
increasing
the suffering
of thewhole:;ociety.
There
havebeennumerous
cases whenwomenhavebeenarrested
withtheir
children,
orpregnant
womenhave beenarrested
givingbirthto their
babies in custody,
and thechildren,
like theirmothers,
havedis-
appeared.
Themovement
ofmothers and grandmothers
inArgentina
has
submitted
to theUnitedNationsWorkingGroupondisappearances
alistof
caseswiththeparticulars
of 96 disappeared
children.
- 29-
VI. SUMMARYOF CONCLUSIONS
- The state ofsiege, declaredin 1974before themilitary take-
over in1976 has beenmaintained in forceeversince. It was, fromthe
start, unconstitutional andillegal fromaprocedural pointofview,
because itwas declaredby theExecutiveduring the annual recessof
Congressandwhen theCongressmet itdid notmake adecisionapproving
thedeclarationof the state of siege, as required underarticles23 and
67 (26) of the National Constitution. Moreover,since, accordingto
manygovernmentstat.hents, peaceand stability have been restoredto the
countryby the militaryauthorities, there is no legal justification
under the Argentineconstitution for the stateof siege to continue.
- '.'heNational. Congress, as well as the Provincial Congresses,
have notbeen allowedtomeetsince the coupd'6tat in March1976, so
thereis no legislative controlover the way inwhich the Executive
uses its exceptionalpowers under the state of siege.
- The military authorities claim to be defending Western values and
the democratic system, but that statement is belied by the facts. Their
use of the 'national security doctrine' imposes on the country aitideology
whichimpliesaneweconomic,-political, socialand culturalmodel,which
is stronglyopposedby largeparts of the population. Supportersof this
doctrine believe in the need for a new institutional structure, with an
authoritarian government controlled by the armed forces which concentrates
the principal powers of the state in its own hands. The result is that
for the model tobe imposed, it is necessaryto repress all tradeunion
andpoliticalactivitieswith the consequenceof denying the normal
functioningof democraticinstitutions.
- SinceMarch 1976 the authoritieswhorule the country haveno:
been democraticallyelected,as establishedby the Constitution. The
Argentinians are deprivedof exercisingtheir politicalrights andof
theirdemocratic representativesystemof governmentchosen in 1853 when
the first Constitutionwas setupby aConstituent Assembly.
- Theexceptional measures takenby themilitary governmentunder
the stateofsiege clearly exceedwhatis constitutionallypermitted.
Evenwhentheywere takenwithaview tomaintainingorder, these
measureswere inexcess of whatwasneeded, violatingthe civil,
political, economic,social and cultural rightsof the inhabitants
ofArgentina,including non-derogablerightsset forth ininternational
instruments.
- Under astate ofsiegethe Executiveis investedwiththe
power to arrestand detainpeoplewithoutcharge (article23 ofthe
National Constitution). However, in thesamearticle and in others,
such as articles18 and 95, limitsare placedon theuse ofthispower,
including the rightgiven todetainedpeople to optfor exilerather than
detention. This constitutional 'rightof option'hasnot been fully
respected by the authoritiesandhas beenillegallyand severely
restrictedby decrees. The militarygovernmenthas frequentlyabused
theexceptional powerof administrativedetention,by notgiving any
or anyadequateexplanationofthe reasons for thedetention. It has
beenused toeliminateorsuppressallpolitical andtradeunion
oppositionand to frustrate anyattempttoorganise theopposition.
- 30 -
- The judicialsystemand the independence and impartialityof
judgeshavebeenundermined byadministrative measuressuch as the
transferor dismissalofmembersofthe Judiciaryand threats and
attacks (includingarrest anddisappearances)madeagainst judges.
The test ofreasonablenessby whichthe Judiciarycouldexercisecon-
trol overadetention underthe stateof siege hasbecome an empty
form.
- Thesystemof militaryjustice has been extendedto cover
civilians and the militaryjurisdiction has takenover large areasof
civilian jurisdiction. Thiswas alsoillegal under the Constitution
and under the stateof siege.
- The rightsofdefence have not beenrespectedby the military
-jurisdiction. Militaryproceduresprevent the accusedhavinga
civiliandefence lawyer; the defencemustbe carriedout byamilitary
officer. On theother hand, lawyers whodefendpolitical opponents
or who advise trade unions havebeen harrassedand detainedand some
havedisappeared, thusaffprtin t! ilepencn_2Qf -.Pa'_r".
- There exists overwhelmingevidence that in thepastyears
torture, kidnapping anddisappearanceshave been usedon amassive
scaleby the security forces as aweapon to suppresspoliticaland
trade unionopposition. No seriousenquiries havebeenundertakenby
the authorities about thesecrimes, following the complaintssubmitted
by victims, families, lawyers andhuman rights organisations. In
particular, the phenomenonofdisappearances,whichis perhapsthe
mostevil of all violations of humanrights,denies the rightof a
personto existand to have an identity.
- Even if it cannotbe said that all violations ofhumanrights
and fundamentalfreedoms inArgentinahave beentheconsequence of the
stateofsiege,or the resultofactions by the armed forces,itis
clearthat the exceptional powers underthe stateofsiege openedthe
wayto abuses andto thedestructionofthe Ruleof Lawandthe
democraticsystem.
-0-0-0-
- 31 -
THE LEGAL FRAMEWORK
FOR
STATESOFEXCEPTIONINCANADA
CONTENTS
Page
I. INTRODUCTION ........................................ 33
II. THEWARMEASURESACT................................... 33
III. THEPOTENTIALFORABUSE................................ 34
IV. RECOMMENDAT
T
ONS ..................................... 36
A. Use ofEmergencyPowers........................... 36
B. Inviolable Human Rights ........................... 38
C. The RightsofDefendants.......................... 38
D. The Role of the Courts ........................... 40
E. Other Recommendations ............................ 40
V. CONCLUSIONS ......................................... 41
-0-0-0-0-
- 33 -
THELEGALFRAMEWORKFOREXCEPTIONALSITUATIONS IN CANADA
I. INTRODUCTION
Thisreportwasprepared in the lightofexperience gainedwith
respectto Canada's principal law applicable to emergency situations,
that is, the WarMeasuresAct (Revisedstatutes ofCanada,ch.w-2.).
It seeks to assist the ICJ in making appropriate representations to the
United Nations Sub-Commission responsible for specifying international
normsrelating to exceptionalsituations. Itcontainsanumberofpro-
posals for amendments to the above-mentioned law which, given their uni-
versal relevance, may also contribute to the stipulation of international
lawsapplicable toexceptional situations.
II. THEWARMEASURESACT
The WarMeasures Actis theprincipal law governingemergency
situations in Canada. This lawwas adoptedduringthe FirstWorld
War (August1914), and its provisionsare applicable afteradeclaration
by the governor in council (of the Federal Cabinet) to the effect that
astate ofemergency, due to actualorperceivedwaror insurrection,
exists in Canada. This law formally grants the goxernor in council
wide powers, but in fact Parliament delegates to t'le Cabinet the legis-
lative authority necessary to deal with the emergency. Thus, the Fede-
ral Cabinet may govern the country by means of regulations and may im-
posethe rulesand restrictions it deemsappropriate; itmay, inter
alia, recognize new crimes, amend the rules relating to search, dis-
traint and detention, introduce censorship, carry out deportations
and impinge on the legislative competence of the provinces.
There are other laws, federal and provincial, which grant the
executive branch of the government emergency powers which are more of a
civiliannature, but these different laws donot fallwithin thepurview
ofthis study. Hone ofthese laws is as broadin scope as the WarMeas-
uresAct, whichwas designedto dealwithemergencysituations which
jeopardize national security or the integrity of the country either
in wartime or in peace.
Despite the wide powers conferred on the executive by the War
MeasuresAct, the courts haveruled thattheywouldneedveryclear
evidence to annul adeclarationofastatcofemergencyand thusde-
clare that the circumstancesdidnot warrantorhadceased towarrant
recourse tothe use ofemergencypowers. (1) In reality,Canadian
(1)Fort FrancesPulp andPower/Paper/Co. Ltd.vsManitobaFree
PressCo., /1923/ A.C.695; CooperativeCommitteeonJapanese
Canadians vs. A.-G.Canada. /1947/ A.C. 87; In theMatterofa
referenceas to the ValidityoftheWarTimeLeaseholdRegulations,
/1950/R.C.S. 124. See alsoGagnonandValli~resvs. R./1971/ C.A.
454.
- 34 -
courtshaveneverannulledadeclaration
ofemergency, justas theyhave
neverinvalidated
regulations
adoptedundertheWarMeasures Act. One
mayevensaythat theyhave leftthe federal executivefree to chose the
means to beusedto faceemergencysituations,
considering
ittobea
questionofpolitics.
III. THEPOTENTIALFORABUSE
It maybesaidthat to dateCanadianshave managedto avoidrecourse
to emergencypowers leadingto majorabuse. However,thepotentialofthe
War MeasuresActis vastandmayevenauthorise theabuses observedin
certain SouthAmerican,AsianandAfricandictatorships.
Atpresent,
nothingin the lawprecludesthe federal government
fromrestricting
rights andfreedoms duringanemergency.
Indeed, theCanadianBill of
Rights (2)ceases to applyduringan emergencyanditwould bethe same
with the CanadianCharterofRights andFreedomscontainedin thenew
CanadianConstitution
adoptedin 1981. One mayeven saythat theBritish
North AmericaAct (nowcalledtheConstitutional
Actof 1867) as awhole
couldbeset asideduring an emergency.
Finally,this federallaw remains
practically
the federal government's
onlymeansofresponse whenfaced
withanemergency,
whateverits nature orextent. It is evidentthat
theemergencypowersofthe federal authorities
maybeexpressed inspe-
cial lawsas was thecase in 1940with respectto generalmobilization,
in 1970as regards theOctober crisis,andin 1975 tocombatinflation.
It is usefulat thispointto underline the factthat theWar
MeasuresActw&sappliedin Canadain 1970 to fightagainsttheQuebec
LiberationFrontwhich advocated the use of force and violence to achieve,
amongother things, theseparation
ofQuebecfromtherestofCanada.
After thekidnapping
ofacareerdiplomatandaministeroftheprovincial
government,
the federal government,
atthe demandoftheprovincial
authorities,
decided toapply the WarMeasuresAct. Underthis law,aregula-
tion wasenactedwhich outlawedtheQuebecLiberation
Front,gavepolice
powers to members ofthe armedforces whowerecalledin to help,enlarged
policepowers ofarrestsand searchandallowedthe QuebecMinisterof
Justiceto detainthosearrested,underthe legalrestriction,
however,
ofthe rightofdetainees toobtainatrial date notlaterthan90days
aftertheirarrest. Theoraeralsocontainedelementsofretroactivity
in that itallowedactionswhich tookplace before16Octobertobe
usedas evidence thatapersonwas, as of16Octoberor after,amember
of theillegalorganisation.
Itconstituted
asignificant
development
ofthe lawandofcrim-
inalprocedure,
broughtaboutby theexecutive.
Itdidnotderogatefrom
the legislative
competence
of theprovinces,
butextendedtheirpowers
relative to theapplication
ofpenallaws. It demonstrated
thatCanada
(2) Seearticle6 (5)oftheWar MeasuresAct.TheCanadianBillof
Rightsis afederal lawwnichapplies onlyto federalmatters:
RevisedstatutesofCanada,App.III.
- 35-
wasnotparticularly wellequippedat the legislativelevel toconfront
asituationcreatedbyaterrorist group and,inordertodoso,it had
toapplystrongmethods conceivedatatime ofwar withanenemy
country. It indicatesfinally thatimportant restrictionscan beplaced
on fundamental freedomsby simpleordersontheadvice ofthe federal
executive,once theWarMeasuresActis appliedbyproclamationofthe
FederalCabinet. The FederalParliament corrected this ratherembar-
rassingsituation on 3Decemberbyadopting the law of1970, aspecial
law concerningpublicorder (S.C.197C-71-72chap. 2)which dealt,in
aretroactivewaywith all thathadbeendoneoraccomplished under
the WarMeasuresAct. Thisspecial emergency law,which appliedin
Quebeconly, ceasedtobe appliedon15 April 1971.
Otherspecial emergency lawswhichdo not concernthe security
of thecountry mayconcern economics, energy,orbeaimedat regulating
healthproblemsorsocial disturbances. The federalparliamentmay
adoptthemandtheirapplication mustbeclearlytemporary. This type
of lawcan derogate fromprovincial legislative competencebutthis is
notnecessarilyalways the case. In 1975 the federalparliamentadopted
the anti-inflationlaw (S.C.1974-75-76ch. 75), whoseobjectwasto
restrictiliter aliaprofit margins,prices, dividendsandremunerations
in Canada,with the purposeofreducinginflationwhichParliament
considered incompatiblewith the interestsofthe country.The consti-
tutionalityof thisemergencymeasure,clearly temporary,was recognised
bythe SupremeCourt (3)evenalthough it infringedon the prerogatives
ofthe provinces; this lawwas based,accordingto theCourt,on the
powerofParliament to legislate inorderto keeppeace andorderand
goodgovernmentin Canada.
The WarMeasuresActwasconceived in wartimein response toa
specificneed. Whenitwas adopted,the intentionwas certainlynot
that it shouldapplytoall typesofemergencysituations, andvery
little thoughtwas given to its human rights implications. In the
opinionofthe author,the treatmentofCanadians ofJapaneseorigin
duringthe SecondWorldWar, theabuses committedduringthecrisis
ofOctober1970 (severalhundredpeoplewerearrestedand afewwere
sentenced)andthe fact thatCanadahas ratifiedthe International
CovenantonCivilandPoliticalRights, allpointto the needfora
revisionofthatact. Theneed fortheexecutive tohavethepowers
necessaryto dealwithemergencysituationsis notquestioned,parti-
cularlywhere thereis athreattothepeace andsecurityof thecountry,
butextensiveexceptional powersin aframeworkwhich is weakin
legal anddemocraticterms are unacceptable.
(3) See Renvoi :Loi anti-inflation,/1976/ 2R.C.S. 373
- 36 -
IV. RECOMMENDATIONS
Itis in this spirit that theauthormakes the followingrecom-
mendations:
A. UseofEmergency Powers
1.TheWarMeasuresActshouldbe abrogatedandreplacedby sec-
toralemergency
laws, eachgoverningonlyacertaincategoryof
emergencysi.tuations.
Each pieceof legislation
shoulddrawadistinction
between the
various types ofemergencies
anddelimitclearly the special
powersattributed
to the executive to copewith theemergency
situation.
Drastic measures are notnecessary
forall situations.
The aimshouldbe to adoptagraduated
approach,as is donein
the Constitutions
of Switzerland,
India and the Federal Republic
of Germany (4) . A distinction
could be drawn between economic
calamity,
natural disaster,war,insurrrction
arid subversion.
Thesedifferent
typesof lawswouldallowthe government
to
adoptappropriate
measures, including
thosewhich to acertain
extentwould impingeon generally
recognised
rights andfreedoms,
withoutoverstepping
the termsspecifically
authorised
bythe
law.
2.Parliament
alonewouldbe able todeclare astate ofemergency
orexerciseexceptional
powers.
This is ofcapital inportance
in afreeanddemocratic
society.
The factofthe executiveinvokingits ownemergencypowersmay
open the doorto abuse. Thus,Canadians shouldbeassured that
whenthe FederalCabinetdecides touse itsspecial powers,
theirdemocratically
electedrepresentatives
wouldhave given
their assentto the executive's
action. Therefore,
inorder
for astateofemergency
tobe declared,atthe veryleast
Parliament
shouldbe convenedto ratify theexecutive's
decision
(5).
3.Such ratification
shouldbedone byaresolution
adoptedby
atwo-thirds
majorityofmembersof theHouse ofCommons and
the Senate.
(4) See RobertR.Bowie andCarl Friedrich,
Etudes sur lefdddralisme,
Paris,L.G.D.J., pp. 439etss.; H.Marx,"TheEmergencyPowerand
CivilLiberties inCanada", (1970)16 McGillL.J.39; YvonPinard,
OpeningStatement,
Federal-Provincial
Ministerial
Conference
on
HumanRights,2-3 February1981.
(5) In thisregard, it is interesting
tonote theproposalsofthe Pepin-
RobartsCommission
onCanadianunity (1979), of theCanadianBar
Association
Commission
on theConstitution
(1978), theQuebec Liberal
PartyConstitutional
Commission
(1980)andtheMcDonaldCommission
on the studyofcertainactivities
oftheCanadianRoyalPolice (1981),
whichaimatmodiflingthe mechanism
forparliamentary
approvalof
the useofemergencypowersso as tomakeitmorecompatible
with
theexigencies
ofdemocracy.
- 37 -
Atwo-thirdsmajorityratificationwouldnotin thepasthave
preventtdthe governmentfromhavingrecourse tothe WarMeas-
uresAct. Also, aresolutionofthisnatureis essentialto
preventabuses. Itmaybenoted that therequirementof
ratification wouldnot preventthe governmentfromusingemer-
gency powers when Parliament is not in session; in that case,
Parliamentwouldbeconvenedby virtueofthedeclaration
within seven days of its being made.
4.Duringthe ratificationprocess, Parliament shouldspecify
the powers it delegatesto the executive. If thisis not
possible,the executive shouldas aruleexerciseonlythose
powers that are strictlynecessarytocope withthe emergency.
Thisrecommendation is particularly useful ifParliament
doesnot distinguishbetweenemergencysituations. Further-
more, it is important that,upon ratification,Parliament
shouldestablishaparliamentarycommission to approvethe
regulation adopted under law.
5. A declaration of emergency should state explicitly the dura-
tion of the emergency powers.
In order to guard againstpossibleabuse,atime limitshould
beimposedon the exceptional powersgrantedto the executive.
Ashistoryhas shown,emergencypowers though temporaryin
principle,have remainedin forcefor avery longtime (6).
It is suggested that the declaration of emergency should
automaticallybecome inoperative uponexpiryofaperiod
determinedbyParliamentwhichshouldnot exceedoneyear.
At the end of that period, Parliament should, if the case
arises, renew the exceptional powers for a further period
notexceedingone year.
6.The declaration shouldstate the government'sgrounds for
havingrecourseto itsexceptionalpowers.
7.Incaseofan emergencysituation limitedtoasinglepro-
vince andwhich does not pose a threat to the integrity of
the country, the federal government should obtain the assent
ofthe Provinceconcerned.
However,ifaprovincialgovernmentsoughttosubvert the
establishedinstitutional order,theintegrityofthe country
would then be threatened and in such a case the federal
government should not need the opinion of the provincial
governmentconcernedin order toact. It is implicitthatan
emergencylaw shouldneverbe usedagainstagroupof
citizens.
(6) SeeH.Marx,op. cit.
- 38 -
B. Inviolable
Human Rights
Certainhuman rightsare,atall times,inalienable
and inviolable.
Thisis particularly
true in acountrywhichwishestomaintain
the characteristics
ofafree, democratic
society. Thus, Cana-
dian legislation
shouldenunciateclearlythosehuman rightswhich
maynotbe restricted
inanyway,whateverthecircumstances.
Theserightsshouldbeas follows:
1.The right tolife ofeach individual.
This affirmation
wouldbe inkeepingwitharticle 6ofthe
above-mentioned
International
Covenantbut,despite theword-
ing of the Covenant,
it should never be used to permit Cana-
dians to re-introduce
the death penalty,even inanemergency.
2.The right tobe free fromslaveryorservitude.
3.The rightofthe individual
to haveaccess to thecourtsof
law.
All personsaffectedbyaregulation
orlegislation
shouldbe
entitledtoaccess to the court. Noone shouldbe refused
accessonanygroundswhatsoever,
even
nized thatthisaccessmaynotnecessarily
be immediate.
such
ifit is recog-
4.The rightnot to beexposed to tortureor to cruelorun-
usualpunishment.
5.Therightofeachindividual
tokeephis orher citizenship
andnot tobe deported.
Itmayberecalledthat,in1946, the courtsrecognized
thatthe FederalCabinethadthe right to deportCanadians
ofJapaneseorigin (7). This measurewas,however,never
implemented,
whichperhapsbearsout theaboverecommendation.
6.Thefree enjoymentof freedomofconscienceand re'igion.
7.The free enjoymentoffreedomofassembly,speechandthe
press, subjectto those restrictions
strictlynecessaryto
dealwiththe exigenciesoftheemergencysituation.
C. TheRightsofDefendants
The useofemergencypowersoften, ifnotinevitably,
leadsto
imprisonments.
Thosedetainedunderemergencypowersshould
haveaminimumofprotection,
overandabove the fundamental
rightssuggestedearlier,whichare aimedmorespecifically
at
protecting
thephysicalintegrityofthosewhoare imprisoned.
(7) Co-operative
CommitteeonJapanese-Canadians
vs.A.-G.Chada,
/1947/A.C.87andF.R.Scott,CivilLibertiesandCanadian
Federalism,
Toronto, UniversityofTorontoPress,1959.
- 39 -
In this regard,thereshouldbeenvisagedastriesofprocedural
guaranteesto ensurethat detaineesarenot subjectedtoun-
warrantedtreatmentandalsoto safeguardtheprincipleof law-
fulness (supremacyoflaw). Theseproceduralguaranteesare as
follows:
1.Noindividualshouldbe sentencedforaretroactivecriminal
offence.
Actswhichwerepermittedwhencommittedshouldneverbecome
illegalsubsequently throughadoptionofretroactivelegis-
lationorregulations. Severalpeople sharedthe impression,
ifnottheconviction, that suchwas theeffectofcertain
regulationsadoptedin 1970 undertheWarMeasuresActorthe
Turnerlaw (8).
2.The rightofall to habeascorpus,subjectto provisions sus-
pendingthe exercise ofthis rightwithin48 hoursof arrest.
Thisprerogativewrit remainsone of themostsignificant
meansofundertaking legalproceedingsinCanada. Whenitis
suspended,courtsare deprivedoftheopportunity tojudge
the validityorappropriatenessofthe recourseto special
powers,andthusparliamentis leftaspracticallytheonly
bodywhichhas the possibilityoflimitingabuse. Ifthere
isnohabeascorpus, detentionscanlastaverylongtime.
3.Therightofthe individual toconsultalawyer immediately
upon arrest.
4.The rightofcver, individual tosubmitafullandcomprehen-
sivedefencebeforeanimpartialcourt.
Thelatter tworights formintegralpartsoftheprinciple
ofsupremacyoflaw,whichmaynotbe setasideeveninan
emergencysituation.
5.Therightofall toequalitybefore thelaw.
Thisconceptshouldbetakentomeanthatallpersonsare
entitledto equal treatmentregardless ofrace, colour,
religionornationalorigin.
6.The rightofthedetaineetobechargedwithin48hoursof
the startofarrest.
7.Therightofall detaineesto bereleasedonbailonexpiry
ofthe48 hourso."arrestin conformitywiththerules
usuallyapplicablewithrespecttobail.
8.Theright ofevery individual tobetriedbeforeordinary
courtsoflaw,whentheseareabletofunction.
(8) PublicOrderAct1970 (provisionalmeasures), R.S.C.1970-71-72,
c.2.
- 40-
D. TheRoleof theCourts
1.The courtsshouldbeable to supervisetheactionofthe
governmentduringan emergency, particularlyas regards the
legalityofthe emergencydeclaration, legislationandregu-
lations. In this regard, Canada'sjudicial precedentsare
far fromsatisfactory. There is generalconsensus todayin
favourofan increasedrole for the judiciaryduringaperiod
of emergency. The courts should have the power to determine
whether the circumstances justify the use of extraordinary
powers, whether these continue to be needed and whether the regu-
lations adoptedare strictlynecessarygiven the exigencies
oftheemergency situation*. In concreteterms, courtswould
still be hesitant to invalidate emergency legislation or regu-
lations, but their right in this regard should be clearly
recognised. Since the executive should establish in its
declaration the grounds for its decision, the burden of proof
would be eased considerably for persons undergoing trial.
Onemight even suggestthat in all cases, adeclarationof
emergency should be referred to the courts to determine its
legality.
2. It should be provided by law that a certain number of parlia-
mentarians (around20) or aprovince,orany personaffected
should nave the right to challenge in court the declaration of
emergencyor the regulationadoptedwithintheir domain.
In the case of parliamentarians or provinces, they should be
allowed to obtain a declaratory judgment on the legality of the
use of the emergency powers, independently of the concept of
interestwhichsuffices toseize the courts ofthematter.
3.The federalgovernmentshouldspeedilyondfullycompensate
all thosewho suffereddamageas aresultofabuse committed
by the administrativeauthorityin exercisingits emergency
powers Withoutthisassuranceofcompensation fordamage
incurredduringan emergency, therecan benoeUectivecontrol
ofthe government's actionduringexceptionalsituations.
Provincial ombudsmenco-ldwellbe designatedtosuggestthe
compensation, as shown bythe ombudsmancfQuebecfollowing
the October1970crisis. The FederalParliamentcouldesta-
blishits owncompensationcommissionor tribunal.
E. OtherRecommendations
1.Thefederalgovernmentshouldnotresort toits emergency
powersbeforeexhausting thepowers conferredonitbyother
federal laws.
2.Nobillofrights (federal orprovincial)shouldbe setaside,
exceptas is strictlynecessaryfor the executivetoexercise
thepowersandobligationsconferredonitbyParliamentto
(Itis suggestedthatthe courtsshouldalsohavepowerto determine
whetherthemanner inwhich theextraordinarypowersareusedis
lawful - ICJ)
- 41 -
dealwithexceptionalsituacions. Thisshouldbevalidas
well for theCanadianCharterofRights andFreedomscontained
in the newCanadianConstitutionadoptedin 1981.
V. CONCLUSIONS
Amendmentswouldthereforebenecessaryto theConstitutionof
Canadaifthese recommendationswereadopted,as limitationsto federal
emergencypowerscannot be enshrinedonlyin an ordinarylawofthe
Federal Parliament.
It is evidentthat theadopcionofthese recommendationswould
bringCanada's legislationmore in line withits internationalcommit-
ments,inparticularfollowingCanada'sratificationof the International
CovenantonCivilandPoliticalRights. It is alsoclearthatthese
amendments to federal legislationwouldallowfor improvedprotection
ofhuman rights,significantlyreduce the risksofabuseandallow
Canada to liveup to its reputationas afree anddemocraticsociety.
However,itis withafeelingofuneasiness thatwe endthese short
remarksbycitingarticle 1ofthe CanadianCharterofRights and
Freedomsappliedin Canadasince 17 April, 1982:
'1. TheCanadianCharterof RightsandFreedomsguarantees
therights andfreedomssetout in itsubjectonlyto such
reasonablelimitsprescribedby lawascanbedemonstrably
justifiedinafree anddemocratic society."
Thisloosely framedarticle cannotbe saidtosolidlyguarantee
rightsandfreedoms in times ofemergency.
-0-0-0-0-
- 43 -
STATESOFSIEGE INCOLOMBIA
CONTENTS
Page
I. INTRODUCTION .......................................... 45
II. LEGALCHARACTEROFTHESTATEOFSIEGE .................. 46
III. DISTORTIONOFTHESTATEOFSIEGE ...................... 48
IV. MEASURESADOPTEDBEFORE1978............................. 50
V. CONCEPTOF"INTERNALWAR"................................ 54
VI. SOCIALCRISISOF 1977..................................... 56
VII. CONSEQUENCESOF THEGENERALSTRIKE,1977.................. 58
VIII. ARMEDFORCES'DEMANDFORSECURITY :EASURES............... 59
IX. SECURITYSTATUTE OF1978................................. 61
X. USE ANDABUSEOF THESECURITY STATUTE..................... 62
XI. CONCLUSIONS OFTHEINTER-AMERICANCOMMISSION
ONHUMANRIGHTS ....................................... 66
XII. LIFTINGOFTHESTATE OFSIEGE............................ 67
-0-0-0-0-
- 45-
I. Introduction
Colombia has both a long constitutional tradition and a
number of abrupt constitutional upheavals. Attachment to
things legal, amounting alIc3t to idolatry of the written
law, is an outstanding feature of the national character.
Nevertheless, Colombia in the 19th and 20th centuries has
experienced what has been described as "a permanent crisis of
constitutional law". (1)
Before 1819, when the Republic of Colombia emerged, the
country did not have a national constitution accepted by all
the provinces which in 1810 had become free of Spanish
domination. A number of provincial statutes were in force,
some favouring a centralised government, some a federal one,
but ll sparked heated controversies and substantial dis-
agreements. After 1819, the constitution was revised on an
average every ten years: 1821, 1830, 1832, 1843, 1853, 1858,
1863 and 1886. The last one adopted a presidential system of
government based on political centralisation and administra-
tive decentralisation, a system that is still basically in
force, thcugh important changes have been introduced at
different stages.
Colombia acquired its definitive constitutionon
5 August 1886, but it was not fully operative until 1910,
when the two principal parties, the conservatives and the
liberals, agreed on several amendments aimed at preventing
the abuse of presidential power by guaranteeing individual
rights and establishing a system of judicial review of laws
as well as of decrees issued by the executive branch. Legis-
lative Act 3 of 1910 (articles 40 and 41) gave the Supreme
Court the power to declare a law or a decree not enforceable
at the request of any citizen, and its decisions were of
general application and not merely inter parties. This is,
indeed, a precious remedy seeking to avert the existence of
an authoritariangovernment.
These articlesread as follows:
Article 40. "In all cases of incompatibility between the
constitution and the law, constitutional provisions will
prevail."
Article 41. "The Supreme Court of Justice is entrusted
with protecting the integrity of the constitution. As a
consequence, apart from powers conferred upon it by the
constitution and the law, it will have the followingpower:-
1) Alfredo Vazquez Carrizosa, El Poder presidencial en
Colombia, (Bogota,Enrique Dobry Editor: 1979).
- 46 -
To rule on the enforceability
of Legislative
Acts deemed
unconstitutional
by the government,
or on laws and decrees
impugned
before it by any citizen
as unconstitutional,
having
heard the opinion
of tho Fitucuieuv
G,2nfral ". (2)
The constitution
of 1886, with its subsequent
amend-
ments,
provides
detailed
guarantees
for and remedies
to
enforce
basic human rights,
including
the right to life (the
death penalty
is outlawed);
to personal
integrity
and
liberty;
to freedom
from arrest,
detention
or search without
a warrant;
not to be compelled
to incriminate
oneself;
to due
process;
to prohibition
of retroactive
laws; to strike;
to
private
property;
to inviolability
of the home; to freedom of
communication
without
interception;
to freedom
of education
with compulsory
free primary
education;
to freedom
of asso-
ciation;
of peaceable
assembly;
to petition;
to freedom
of
conscience
and religion.
II. Legal character
of the state of siege
The 1886 constitution
was written
with a view to cur-
tailing
anarchy
and civil war. Under the guidance
of Miguel
Antonio
Caro, an illustrious
humanist,
the writers
of the
constitution
invested
the President
with powers to dispose
of
the armed forces,
appoint
and dismiss
members
of the cabinet,
governors
of the departments,
which are the main political
and administrative
units of the country,
and, through
the
governors,
to appoint
and dismiss
the mayors.
Thus they
expected
to bring to an end the uprisings
that had taken
place in different
parts of the country
with the help of
local authorities,
particularly
during the era of federalism
between
1853 and 1886.
Additional
measures
were taken. The state of siege was
institutionalised
more strongly
than before through
article
121 of the 1886 constitution.
Since then, this article
has
been the mainstay
of the Colombian
political
system.
The
constitution
gave the President
tne power to declare,
in the
case of external
war or internal
disturbances,
the existence
of a "disturbance
of the public order and astate of siege in
the whole territory
of the Republic
or a part of it." This
has to be done by decree signed by the President
and all his
ministers.
Article
121 adds: "after such a declaration,
the govern-
ment shall have, apart from its normal
legal powers,
the
powers granted
by the constitution
in times of war or dis-
turbance
of public
order and the powers recognised
by the
rules of the law of nations
during wars between
nations.
2) The Procurador
General
de la Nacidn is an independent
seniorofficial,
appointed
by the Houseof
Representatives
from alist of 3candidates
proposed
by the government.
- 47 -
"Decrees issued by the President under those precise
limits, will be mandatory if they carry the signature of all
the ministers.
"The government may not repeal laws through these de-
crees. Its powers are limited to the suspension of those laws
that are incompatible with the state of siege.
"Under no circumstances may the state of siege prevent
the normal operation of Congress. In consequence, Congress
will meet by its own right in ordinary session, and in extra-
ordinary session when convened by the government.
"If Congress is in session when the government declares
the disturbance of public order and establishes the state of
siege, the President will immediately present to the Congress
areport justifying the reasons for the declaration.
"If Congress is not in session, the report will be
submitted on the first day of its ordinary session after the
declaration.
"The government will declare the restoration of public
order as soon as the external war or the internal disturb-
ances have ended. Extraordinary decrees issued during the
state of siege will lose all effect."
The constitution provides for the responsibility of the
President and the ministers for abuse of power if they
declare a state of siege unnecessarily. It also establishes
that the government will submit to the Supreme Court of
Justice, the day after issuance, the legislative decrees
issued under the state of siege, so that the Supreme Court
may rule on their constitutionality.
When a state of siege has been declared, the government
may decree that certain crimes relating to security committed
by civilians may, instead of being tried by the ordinary
justice system, be tried by military courts martial under
military penal law for as longas the state of siege lasts.
Article 121 has lead to a confusion between external war
and internal disturbances, resulting in two different
situations being given equal treatment. That is to say, the
state of siege is regarded as authorisinga typeof "internal
war". This is the interpretation used nowadays for article
121 in order to enforce the "Security Statute" of 1978.
However, this interpretation does not follow either the
spirit or the letter of the article. It is important to keep
in mind that the article deals with two different situations
and that it was perhaps a mistake to place them in the same
article. External war implies, by its nature, a rupture of
- 48 -
the normal legal order so as to make all means available to
the State in order to defend the country and defeat the
enemy.In contrast, during a situation of internal disturb-
ances, there is no enemy to destroy, but rather an order to
restore or defend.
III. The distortion of the stateof siege
The situation of constitutional abnormality recently
experienced in Colombia, with the application of military law
and the "Security Act" for certain security offences,
resulted indirectly from a tradition accepted by the liberal
and conservative parties, which have shared power alternately.
Paradoxically, the return to democracy in 1957, which
aimed at restoring constitutional rule and averting a new
military government, did not end the tendency of both parties
to resort to the state of siege. Since 1957 there has been
frequent application of states of siefe, and the solution of
problems that could have been dealt with by the democratic
institutions has been delegated to the armed forces. In 1968
extraordinary powers were enlarged with a constitutional
amendment to article 122, providing for a state of emergency
in situations of economic crisis, giving the government power
to legislate by decree in economic matters.
Some of the declarations of a state of siege have been
occasioned by the need for special measures to combat armed
guerrilla movements, in particular the FARC (Colombia
Revolutionary Armed Forces) and the M.19.
The FARC organisation has been in existence tinder that
name since 1959, but according to the Colombian authorities
it has been active as an armed movement in the rural areas
since 1949. The M.19 movement also began in the rural areas
but in more recent years has also carried out some daring
operations in urban areas.
However, use of the state of siege has by no means been
confined to countering guerrilla activities. A few examples
will show the very varied situations in which the state of
siege has been used since 1928. It has been applied, inter
alia, to the following:
- labour unrest: on the occasion of a strike by workers of
the multinational United Fruit Company in 1928, which left a
toll of several workers dead or injured; a strike at the
Antioquia Railway, 1934; a strike at the transportation
service, department of Caldas, 1943; a strike of dock
workers, 1945; a strike at the Social Security Service, 1976.
The strike was soon settled, but this state of siege lasted
over the whole country until June 1982.
- 49-
- political disturbances: in 1944, there was anunsuccess-
ful military coup against the Liberal government; the govern-
ment decreed a state of siege, extended the recess of Con-
gress (contrary to the provisions of the constitution) and
issued a new Labour Code based on a new interpretation of
"economic public order" which bore no relation to the at-
tempted military coup. In 1949, the Conservative party gov-
ernment was faced with congressional opposition and decided
to decree a state of siege , to suspend the Congress and to
legislate by decree. This constitutional 'abnormality' lasted
until 1957.
In 1958 the two parties began sharing power and the
public administration at all levels; this agreement was known
as Frente Nacional (National Front), and lasted until 1974.
During these years four presidents were elected: Alberto
Lleras Camargo (Liberal), 1958-1962; Guillermo Leon Valencia
(Conservative), 1962-1966; Carlos Lleras Restrepo (Liberal),
1966-1970; Miguel Pastrana BorrerD (Conservative), 1970-1974.
After them there have been two more presidents: Alfonso Lopez
Michelsen (Liberal), 1974-1978; and Julio C6sar Turbay
(Liberal), 1978-1982.
The National Front was a unique political arrangement
that established the equal sharing by the two parties of the
governraent -cabinet, governorships, mayors- as well as the
Congress, the regional assemblies and the city councils. The
claimed justification for the exclusion of other parties from
government, the Congress and other political bodies was that
the agreement was needed to overcome the violence and civil
war that prevailed from 1948 to 1953.
Although the civilian government continued to be based
on the constitution, it resorted to the state of siege inter-
mittently. Thus, starting in 1958, more than 300 legislative
decrees were issued in turn under states of siege by liberal
and conservative presidents. The dates of these states of
siege and number of decrees issued were as follows:-
August 1958 to January 1, 1962: 50
May 1963 to December 16, 1968: 123
October 1969 to November 17, 1970: 27
February 1971 to December 1973: 44
June 1975 to August 1978: 50
In August 1978, a new stage of the state of siege began
with the application of the Security Act.
There is no doubt that the presidential power became
stronger under the National Front. Parity in administrative
posts and in elective offices to the exclusion of all other
parties helped to limit opposition to the governerpent,
becaise representation in Parliament, the regional assemblies
and the city councils was granted only to the two traditional
parties. The presidents made use of both ordinary and extra-
ordinary powers establishedby the Constitution.
- 50-
These powers were in three categories:
a) special legislative
powers granted by Congress under
article 76, section 12 of the Constitution.
b) extraordinary
powers of the state of siege, under
article 121.
c) extraordinary
powers on economic matters, under
article 122, as amended in 1968.
There are two constitutional
checks to the issue of
decrees under the state of siege: an immediate appeal to the
Supreme Court of Justice, and political control by Congress.
However, in practice they have not been as effective as was
contemplated
in the Constitution.
The influence of the
President has operated on many occasions to prevent a
negative vote in Congress or to stop an unfavourable
ruling
by the Supreme Court.
The establishment
of states of siege for long periods of
time has led to a system of parallel legislation,
the
legislation
by decree under the states of siege exceeding
that passed by Congress.
IV. Measures adopted before 1978
Since 1958 the armed forces have played an increasingly
pclitical role in Colombia. At first, a military officer was
appointed as minister of defence. Since then the post has by
tradition been held by the highest ranking officer in
service. This makes for a closed military organisation
where
civilians have no influence.
Carlos Lleras Restrepo, a former President and aleading
member of the Liberal party, has recently suggested the need
to return to the freedom enjoyed by the Presidentbefore 1948
to appoint as minister of defence the person best suited to
the office without any constraints as to seniority or rank.
The natural ambition to rise to a cabinet post has
nurtured rivalries
among candidates
and prompted sudden
dismissals
of officers in order to clear the field for
others. This is one reason - among others - for the politici-
sation of the armed forces.
Article 1b8 of the Constitution,
which has often been
ignored, states:
"The armed forces may not participate
in political
activities.
They may not assemble unless on orders of the
legitimate authorities
nor may they sign petitions on matters
other than the efficient service and morality of the army,
and in accordancewith the rules of the service".
Constitutional
scholars for many years recognised the
imperative nature of article 168 on the grounds that parti-
- 51 -
cipation of the military forces in political activities does
not contribute to democracy and to the free expression Df the
citizen's opinions about public matters. (3) This attitude
reinforced civilian rule in Colombia from 1910, and was the
foundation of the National Front in 1957. On May 10, 1958,
President Alberto Lleras made a speech before a group of
soldiers that is considered a kind of gospel about non-
intervention of the army in political affairs.
However, the frequent use of the state of siege has led
to a civilian-military regime in which political power is
shared not only between the parties, but also with the armed
forces, owing to the powers conferred on them to apply
military law to civilians in security matters, and the power
given to military and police authorities to impose penalties
without trial of up to one yeqr's detention. A typical
example of this contradiction of a civilian regime that is
increasingly dependent on the armed forces is Law 141 of
1962, passed by Congress. This law, although approved after
the restoration of civilian rule, adopted as permanent laws
all the legislative decrees issued during the ten years from
1949 to 1958, thus renewing the powers of the armed forces
after the ending of the state of siege.
As has already been mentioned, frequent recourse was had
to legislative decrees under a state of siege after 1958. A
study of some of them shows how widely the powers of article
121 continued to be used:
- Decree NO 330, 1958 (December 3), gave powers to the
governors, the heads of other political divisions and the
mayor of Bogota to ban demonstrations and to restrict the
movementof persons and the exchange of information.
- Decree No.12, 1961 (October 13), banned broadcasting
of speeches and political conferences, and all non-official
informetion related to public unrest, military movements,
riots and- uprising-.
- Decree NO 17, 1961 (November 9), prohibited radio
broadcasts of conferences, speeches and political interviews
related to public order, military movements, riots and up-
risings.
- Decree NO 1289, 1965 (May 21), forbade public meetings
and gave powers to the governors, the heads of other
political divisions and the mayor of Bogota to curtail the
movement of citizens in the streets and to impose press
censorshipof newspapers and radio.
3) See Tulio Enrique Tascon,Derecho constitucional
colombiano (Bogota, 1939), and Francisco de Paula P6rez,
Derechoconstitucional colombiano (Bogota, 1942).
- 52 -
N
0
- D,-cree
2285, 1966 (September
7), restricted
the
right of assembly
and granted
mayors discretionary
powers
to
authorise
public
demonstrations
or parades.
Illegal
demon-
strations
could be dispersed
by the police.
- Decree
N' 2686, 1966 (October
26), authorised
the
'confinement'
of suspected
subversives
in places
determined
by the government,
without
any court order.
It established
a
punishment
of thirty days imprisonment
for those Colombians
who left their place of confinement
without
permission
of the
Administrative
Department
of Security.
Foreigners
and
naturalised
citizens
could be expelled
from the country.
- Decree
N' 2688, 1966 (October
26), gave powers to the
police corps (a branch of the armed forces)
to punish with up
to 360 clays imprisonment
persons
who take part in demonstra-
tions or in misdemeanours
such as painting
political
graffitti
on the walls or throwing
objects
against
demon-
strators.
N
0
- Decree
592, 1970 (April
21), gave powers to the
governors,
the mayor of Bogota and the heads of other politi-
cal divisions
to restrict
the freedom
of the press by requir-
ing prior approval
of news broadcasts
and newspaper
infor-
mation.
- Decree N' 598, 1970 (April 22), empowered
the presi-
dent, the minister
of interior
and the minister
of defence
to
appoint
special
supervisors
in
with
official
enterprises,
powers to dismiss
any emplyees
uoon discretion.
- Decree N' 593, 1970 (April 21), gave jurisdiction
military
courts
over
to
the crimes
against
the existence
and
security
of the state,
crimes against
the consitutional
order
and internal
security,
kidnapping,
extortion,
bank robberies
and conspiracy
to commit a crime.
- Decree P1' 605, 1970 (April 24), gave powers to examin-
ing magistrates
("juges
d'instruction")
to investigate
the
crimes listed in decree N' 593, 1970.
- Decree
N' 636, 1970 (April
30), extended
the juris-
diction
of military
courts
to two other crimes:
defending
crime and incitement
to commit
a crime.
Further
extraordinary
decrees
were issued in subsequent
years.
The suspension
of the right of assembly
and restric-
tions on the right to strike suspended
several
articles
of
the Constitution:
18. 20, 23, 42 and 46. Decrees
restricting
freedom
of the press became
routine,
as was the case with
extraordinary
decrees
N' 12, 1961 (October
13); 592 of 1970
(April 21) and 255 of 1971 (February
27). Beginning
in 1975,
decrees
became
more specific
and drastic
and, in the view of
many lawyers,
exceeded
the powers
under aticle
121 of the
Constitution.
- 53 -
N
0
Decree 2578, 1976 (December 8), gave powers to all
mayors and police inspectors to impose recognisances to be of
good behaviour upon individuals about whom there is a
suspicion that they may commit a crime. These recognisances
may be fcr up to Col.$i,000, and can be enforced against
property owned by the suspects. This decree is based on the
suspicion of a possible crime to be committed by any person,
thus creating what may be called presumptive criminality. It
enables the police to impose fines whenever they "suspect
that a crime or an offence will be committed".
N
0
Decree 0070, 1978 (January 20), gave special criminal
immunity to members of the police or the armed forces who
commit homicide when investigating a case relating to kid-
napping, extortion or drug traffic. A new ground for the
exclusion of criminal responsibility was added by this decree
to those already contained in article 25 of the Penal Code.
It was not long before the effects of this were seen. On
April 13, 1978, a group of secret police agents (F-2), broke
into a house in the "El Contador" neighbourhood in Bogota
and, suspecting that a gang of kidnappers was living in this
house, waited till they returned and then opened fire and
killed seven individuals who had no involvement whatever in
kidnapping.
Decree 0070 was held by the Supreme Court of Justice to
be in conformity with the Constitution in a judgment of March
9, 1978. This "licence to kill" opened the door to institu-
tionalised violence and inaugurated a type of repression
which it is submitted, is incompatible with Colombia's
obligations under the [IN Covenant on Civil and Political
Rights. More than 30 lawsuits for compensation have been
filed on the grounds of manslaughter committed by members of
the armed forces.
In an advisory opinion the Attorney General opposed the
constitut-ionality of Decree 0070. He wrote:
"This decree means that members of the armed forces may
violate the right to life, security of the person, freedom of
the individual, or the privacy of the home, when they take
part in any operation to prevent or repress certain crimes,
whether or not the person concerned has participated in those
crimes. On the one hand, the decree exposes the rights
protected by law of all citizens, without exception, to the
arbitrary action of the armed forces; and, on the other hand,
the exemption from responsibility, for example for homicide,
cannot be determined until a court has decided the nature of
the crime that the police were trying to prevent or
repress." (4)
4) II National Congress of Criminal Lawyers, Cali
(Colombia), 23-26 October, 1980. Paper presentedby
Alvaro Mazo Bedoya, "Criminalizacion para la repre-
sion: Estatuto de Seguridad (Decreto 1923 de 1978)",
p. 61.
- 54 -
Many violent deaths resulting
from mere suspicion
of
guilt have occurred
when the armed forces have used their
"free hand" to shoot and kill even when they have no-, been
attacked.
Colombia
is a party to the International
Covenant on
Civil and Political
Rights, and under Colombian
law its
provisions
become part of the domestice
law, overriding
other
laws. The Human Rights Committee
established
under the
Covenant considered
Decree NO 0070 in the case of Suarez de
Guerrero
(R.11/45).
The Committee
held that the decree
violated
"the supreme right of the human being", the right to
life (which by the Covenant
is not derogable
under states of
emergency)
and recommended
that it be amended. (5)
V. The concept of "internal
war"
Decree 0070 (1978) reflects
the attitudes
which result
from the concept of "internal
war". The armed forces have
invoked this tem widely to justify repression
against persons
or groups of persons.
General Luis Carlos Camacho-Leyva,
the defence minister,
stated during a debate in Congress
in 1979 that the country
faced a "state of war". With this, he indicated
that it was
impossible
for the government
to comply with the ordinary
criminal
law. The Constitution,
however,
does not support
this simple assimilation
of a state of siege to a state of
war.
"Internal
war" assumes that the established
order is
attacked by an organised
group in a military offensive.
When
such a situation
exists it should, it is submitted,
be dealt
with by a state of siege limited to the part of the country
affected,
and not apply generally
to the whole country.
However the Supreme Court has ruled (in July 1948) that the
President
can suspend,
through
decrees signed by all the
ministers,
the effect of laws throughout
the entire nation
even though the state of siege is partial, if he believes
that those laws are incompatible
with the need to reestablish
publicorder.
The effect of Decree 0070 of 1978 as an instrument
of
the 'internal
war' is to instil in the armed forces the
war-like attitude
that they can with impunity
shoot to kill
even suspects
whose capacity for armed resistance
is unknown.
A recent example of this abuse in rural areas was brought to
light on October 28, 1980, when the Conservative
Senator Jos6
Vicente
S;Tnchez,
whose party supports
the government,
reported
to Congress
the Killing of four peasants
in
5) cf. ICJ Review NO 28, June 1982, p. 48.
- 55 -
Caparrapi, Cundinamarca. The peasants were shot by members of
the armed forces on the mere assumption that they were
subversiveelements.
Large parts of the rural areas of Colombia were brought
under complete military control, resulting in extensive
repression and violation of the human rights of peasants. In
its 1980 report on Colombia (6 ) Amnesty International
reported that in January of that year the following regions
were controlled by the military: Uraba (Antioqura): parts of
the department of Sucre; the southern part of Cordoba; the
Middle Magdalena region (covering areas of Santander,
Bolivar, Magdalena, Antioqura and Cesar); Tierradentro
(Caqueta); parts of Tolima and the southern part of Huila.
The Guajira peninsula was also militarised to control the
drug traffic. Among the methods of control applied in
militarised areas were :
- All residents have to register at a military post. An
identificationcard is mandatory.
- The army determines the amount of food that each
family may obtain, so as to prevent peasants supplying food
to guerilla forces. In remote places, this regulation forces
the families to walk for up to ten hours or more to report to
the military aithorities after shopping at the market place,
to enable the military to approve the items they have pur-
chased and to certify that the amount of food complies with
the maximumallowed.
- The control of pharmaceutical products is so strict
that no drug can be introduced into acontrolledarea without
a prescription. This makes it impossible for peasants living
in remote areas to obtain and keep drugs to prevent infection
in case of snake bite, accidents, cuts, injuries,malaria and
other tropical diseases.
- Suspected individuals must report priodirally to a
military post.
Methods of intimidation include:
- Threats to community leaders to force them to leave
the area.
- Arrest of the main peasant leaders under charges of
subversion, based merely on information given by landowners
or on their participation in the organisation of rural
communities.
6)"Informe de unamisign de Amnistfa Internacionala
la Rep~blica de Colombia15-31 de enero de 1980".
Published by Amnesty International, London, p. 37.
- 56 -
- Guarantees of impunity to 'hit-men' employed by land-
owners.
- Torture of arrested peasants.
- Hindering the free movement of peasants through cons-
tant frisking, arbitrary detentions, identity checks and
confiscationof identity cards.
- Destruction of peasants' huts, crops and property.
- Insults and humiliations inflicted on men, women and
children at military posts and in their own homes at any time
of day or iight.
The effect of these measures, justified by the military
authorities on the grounds that guerrillas are operating in
the areas, is to render these areas uninhabitable for months
and even years, with grave loss to the population. The loss
of harvests and the intolerable treatment force the peasants
to move to the cities.
VI. The social crisis of 1977
The social crisis of 1977 in Colombia brought about a
change that led to the passing of the Security Statute in
1978. To understand this it is necessary to review the
principal features of' the life of the country and its great
social and economic imbalances.
First, the division among social classes did not abate
with the increase of wealth and the relative prosperity of
the country during the 50s and 60s, when industry boomed,
exports of goods other than coffee (the commodity that earned
most of the foreign exchange) increased, and urbanisation
began to accelerate. The concentration of private capital in
a few financial groups and economic conglomerates corres-
ponded to the new demographic distribution in four big
cities: BogotS,Cali, Medellin and Barranquilla. These cities
contain a high proportion of the total population and are
centres of attraction to migratingpeasants.
The increasing industrialisation
of these cities led to
increased migration toward the cities. Slums mushroomed and,
with the increase of urbanisation and proletarisation,
big
centres of unemploymentand marginality arose. Economic devel-
opments led to acute social problems, wealth and poverty
being found side by side.
A forum on "The concentration of wealth and economic
power", organised in 1978 by independent personalities at the
House of Representatives,
examined the Colombian situation.
There was unanimous concern about the existence of large
- 57 -
conglomerates e-d financial groups that control the economy,
and a general belief in the injustice of income distribution,
which resulted in a handful of wealthy people and a mass of
poor people.
The concentration of wealth included land concentration.
In 1970, 73% of the farms were holdings of 10 hectares or
less and represented only 7.2% of the cultivated land,
whereas 8.11% of the farms were over 50 hectares and
represented 77% of the cultivated land (7). Agrarian reform
launched during the administration of President Carlos Lleras
Restrepo in 1966, was later abandoned in favour of agro-
industrial levelopment.
An ILO report of 1970 showcd that of a total labour
force of 3 million, half a million were unemployed, and 5
million new jobs were required by 1985 (8). Of the 750,000
new entries into the labour force each year, only 150,000
were employed by industry.
The mounting unemployment, the continuing inflation, the
fall in real wages, the decreasing share of labour in the
national income, and the failure to redistribute the wealth
flowing into the country from the coffee boom and the
estimated US$ 2.5 billion foreign earnings from marijuana and
other narcotics, all led to the general strikeof'1977.
The strike began with a movement started by the Confe-
deraci'n sindical de Trabajadores de Colombia -CSTC- and
other unions in May of that year. It was based upon an
eight-point memorandum demanding a general wage increase
(50%), freezing of prices and utility rates, lifting of the
state of siege, opening and demnilitarisation of the univer-
sities, granting of a]l labour rights to government workers
(application of laws 26 and 27, 1976, which ratified ILO
N
0
agreements 87 and 98) , land for the peasants and lifting
of repressive measures in rural areas, an 8-hour day and
basic wages for bus drivers, and abolition of the decrees
that reorganised the Institute of Social Security (issued as
a government response to the strike of the Institute's
personnel in September, 1976).(9)
7) House of Representatives of Colombia, "La concentra-
cion de la riqueza y el ingreso" (Bogota, 1979). A
lecture by Gerardo Molina, p. 229.
8) International Labor Organisation Geneve, "Hacia el
pleno empleo" (A programof Colombia sponsoredby the
International Labor Organisation).
9) Alvaro Delgado, "El pare civico nacional", Revista
Colombiana de Ciencies Sociales. N' 15, 1978. p. 64.
- 58 -
None of these demands had a revolutionary
flavour com-
pared to those of other Latin American countries. They only
proposed a necessary rectification
of the inequalities
created by the concentraticn of income in a few hands and the
stagnation of the lower classes. The weak answer that the
government gave to the demands encouraged the workers'
protest. Other unions joined the movement (the liberal
Confederacion
de Trabajadores de Colombia, -C.T.C.-, the
christian-democrat
Union de Trabajadores de Colombia, U.T.C.
and the Confederaci5n General de Trabajadores - C.G.T.) and
in July they proclaimed their demands and called for a
general strike on September 14.
The demands referred to a law approved in 1959 (N' 187),
under the administration
of Guillermo Leon Valencia, which
had never been enforced. It provided that all salaries should
be increased according to the increase in the cost of living
whenever it reached more than 5% per semester.
Other unions joined the strike which the government
declared illegal, calling it a political movement. "In the
same way as the government complies with its constitutional
duties," said the President on September 12, "with the help
of the public, the armed forces and the Supreme Court, all
those who place themselves against the law wiUl have to
suffer the consequences of their attitude." (10)
VII. The consequences of thegeneral strike
The general strike in fact rat with severe repression.
At least 19 persons were killed or injured and the army and
police fired on unarmed demonstrators.
According to official
figires 2,236 people were arrested in Bogota, 237 in
Barranquilla and 148 in Cali. Others claim that approximately
twice that number were detained.
Both sides claimed victory. The unions claimed it had
been a success, saying
"Today's journey is tomorrow's trumpet-call;
our strug-
gle is still oriented toward obtaining decent wages, safety,
advanced labour laws, the right of collective bargaining for
government workers, an eight-hour day for bus drivers and a
decent salary for them; in short, the decision to fight for
the workers." (11)
10) This text was widely publicisedby the press.
11) Statement released by the four labour unions, Sept.
14, 1977. See Oscar Delgado, op. cit., p. 48.
- 59 -
The armed forces expressed their satisfaction "for the
way the troops behaved in the whole country and especially
the troops of Bogota, that preserved the order and guaranteed
the safety of the people with great spirit of sacrifice,
discipline and self-denial". (12) In spite of this
declaration, there was general concern about the role of the
armed forces on 14 September, and the Congress summoned the
Minister of Defence and debated the responsibility of the
military for the deaths and injuries. It was evident that the
government was opposed to any kind of inquest into the
conduct of the army.
The armed forces, for their part, ignoring the social
causes of the strike began to demand severer measures against
the union leaders, whom they sought to brand as extremists,
anarchists and subversives, invoking the 'doctrine of
national security' developed by the military regimes in Latin
America. The three main pillars of this doctrine are
- the identification of the state with the leadershipof
the armed forces.
- the assumption of the legislative and constitutional
powers by the armed forces, and the control of public
order.
- the notion of "internal war", as a permanentcriterion
to suppress all forms of social and political
opposition.
VIII. The armed forces' demand for security measures
The culmination of this pressure was a remarkable open
letter addressed by the heads of the armed forces to the
President, and distributed to the press, which was a clear
violation of the 'forgotten' article 168 of the Constitution
prohibiting the participation of the armed forces in
political activities.
The letter to the President, who is the supreme comman-
der of the army (art. 120), was peremptory in tone and dealt
with eminently political matters, going for beyond the
permitted "matters related to the efficient service and
morale of the army" (art. 168). It began: "The undersigned
generals and admirals, members of the Bogota headquarters and
in charge of the command and administration of the armed
forces, consider unanimously that it is necessary to make the
following public statement ..." (13)
12) Interviewswith General Abraham Varon Valencia,
minister of defence, and General Luis Carlos Camacho
Leyva, armed forces commander, broadcasted by "Cara-
col" a few days after the strike.
13) EL TIEMPO, Bogota, December20, 1977.
- 60-
The document
was divided
into tcn paragraphs
concerning
the situation
of public ord-r, the essential
parts of which
read:-
1) "In spite of the efforts
made by the government
within the classical
legal framework
and the accomplishments
of the military
forces,
insecurity
continues
to be a threat."
2) "The measures
taken by the government
and the armed
forces ... have been distorted
by a systematic
and widespread
campaign
of political
opposition".
3) "The fair, necessary
and unavoidable
actions
of the
tr'oops
iI ori(er to protect
the institutions
. . . has
frequently
become the target of unfair attacks
by the press
ald, especially,
by lawyers and judges.
In the specific
case
of the stirke of 14 !Ieptehmbr
an incredible
debate took place
in t h too S;e o hel", i.,tat iver;
4 ) "Thi; caiI ,;'i ri i!; Iow oriIitod
a ,ni i t t tie leaders
of
the i ini I i t i ry int t i li t, Iori; ... wi th t ,he c u1rF ) r poso of
wealk er ii , t fie i ri t r i aI un1i Iy . o f t tie a riy , wth i c h i s the
i r t p laa -tce tb I , t:i ;i 1 ,, p' ei , iti d
- p() e
th oCO
) o) (,I" m idia have h ri u;-d
) ',oi res;:; i I I n t: ry
"MO!;t
the
thy e'Oln i s ista.; whose
ma i r iI te-'i1;t i ; I () r> '( t,e pol e,m wIe re t. t r'e iI; a no
prot) Io Iri at a I I . It tI h I!; en s igpt.! t- mI t hat I t i a t i IIe to
start a 1011d carpSi1,n
p'a in;t the arericd flirces;, which are on -
of tt1e t, w Ii; t. i Lu t i on: Io f t t o t,1e h Pe Ll c c: a1 1e o f
as.s;uring
i tai iIIsti tutional
interi ty aPd the defence
of the
Ii 'e, horloir mund property
of all the people."
6) "Thi ; ie,1 Iu a h 1b iv
anr us e canp ign again ; t the army
has ofd t.o a pl Ii t, i ('aI c I ss i it :ion of thI, I!osera s ,
app Iy n i i ; dIm i i )i 1 , p i I t, i c I l bels t.o thne ."
7) " I t i; r,,,r, t t ab that, some ret i red i I i tary offi -
cers hav ioinefd tti ; i ;tolnoil ip Il, camp i Pn; there are not
many o f t tie I], 1)ut. i t i 11 e v r . tie 1e s a cause o f concern
that
they shoul
a vti , orn e ;o r as t,o ii a p r o tes t apa i n s t
some mia cu,!; taken tiy t.ii opverni
r ;ri i n regard to mi i i tary
rank. This is S ri triuFl attitut de a.;ainst a constitutional
andI epa p owr'
i e af o (V ver rimn t."
8) "As a r t ;u I t () t' t hie )rec d i p cons iderations
. . . we
hav deIcided
to :I;k ;I,in ti hat theg overnment
takeaddi tionaI
anid efFect:ive
measures
, through
the channels
of the emergency
procedures
, in rder to guaran tee the army and i ts members
their rights
not to be insulted
and to all citizens
the
security
they need."
- 61 -
9) "We expect that the new measures that the government
takes -and we reaffirm our strong support to the government-,
and the actrion; that wi )o1 e taken by the armed forces to
guarantee the constitutional regime arid the security of the
citizens, no mat ter how drastic, will he received with under-
standing by tire Supreme Court, as a branch ot government and
by the country as i whole.''
10) "We aIso want to noti y the country that, in the
same way is we have hdevooL our I ife to :;erving our rel low
countrymen without Fear of the c orisquence ; of thi:; sacri-
f ice, we a re r'o ldy to ; trongIy de e oeru r mora I, personal and
inst it. utional r rimerry .p.."
"Th i s dec IAra ti on was i I ;o approved by to I ephone by al1
the commainders f t he Army , tthe A i r Force arid the Navy.
Bogota 19 December 1977." (1'1)
Eac h re o F the u nld r I i ned s It a te mei t.; 1a; a c .1earpo i-
ticAl irittntion. The document begins by pointing out the
failure of " tihe cl assical legal framiework"; it labels oppo-
ai ti r t o the grrv 'rirmeirt Ias an enemy o C the armed forces; it
chail lenges cri t raims by "lawyers and judge"', call ing into
quresrt i rn ;nr'o t ti" i)ratich oC goverr ent i t consirI ers that a
parl irimirt rry deha t' aiboit the strike of 14 September is a
provocation, wi thr corplete isrregard for tie constitutional
roeI, of t h, C ,rrr ss to exercise pol i tical control over the
ex'cut i vr i t demiarid; from the Supreme Curt acceptance a
priori rt tHo w i 1 1 F the armed forces , erea ting a dangerous
ircIonl tt iturt ionar aIl pr c, dertl .
All t tiis 1)aved Ite way for the "Security Statute" of
19'78 , ind set, 5 new ;t age in pol iti cal intervention by the
ColomT b re ian armerrd torce .
IX. The Security Statute of 1978
The Security Statute of September 1978, promulgated by
Decree Nl" Iq P , was in par L N re-erractment of existing
provis irrs orr h" le,irt :;c'rtr erel aiedaong many other decrees and
lawsr , u t ait sam tit Ir t Mie crer t rted atiiumber of itew secur i ty
of rerI'c; ailet s<.u| s.. t antia ly in r'i'errased t.tie p e Ia tI e S aof many
others. Perhapsr.; th oIst ipli1ortan11 t ('ha ige was the inicrease of'
the juri diutin 1 tth miliitary e urt! to try civi i s rang-
rnu l rom I t,I. it J And k ri rapp t r"t d iturbanites the ig (if
pubI ic r rt'i. Th, IIir', army, laivy aind air tore'; commanders
w'i ' i,, V, i ol , r erc' t ;1t iet iI tor rip t.o oni year
Sr ;oii li;j rn. ( I f o oF !t- eVir rtI.Itr vagueI y defined
otirP nc ', ,; r1vIA til, tI prhl ic d,r. Three, or tthesre were later
decIlared 1011; rilc ircr i l by ry HIP Sriup ireme Court, including one
rvIl i t o "uhrv', r siv', p rotrnpgairdrA'" . A srummary procedure was
or n object institIuted f a ;mtr'r or rrC t'err 'cs S U Ito trial by
14) Ibid. , and Marzo tedoya, op. cit., p. 37-39.
- 62 -
military courts. There was a provision for the review of a
sentence by the officer who gave it, but there is no right of
appeal to a higher tribunal. Radio and television stations
were debarred from broadcasting any news or commentaries
relating to public order or to strikes.
The Security Statute, and in particular the manner in
which it was applied by the armed forces caused widespread
complaint and criticism during the nearly four years it was
in force.
X. The use and abuse of the Security Statute
In January 1979 the M-19 guerrilla movement succeeded in
stealing 5,000 weapons from an army arsenal in Bogota by
digging a tunnel from a nearby house. The intelligence
services recovered most 'of the weapons within a few days.
Early in January, a business executive who had been kidnapped
by M-19 was killed when the army raided the house where ie
was being held. This sensational arms robbery, together with
other kidnappings, terrorist acts and guerrilla operations in
1978, including the assassination of a former Minister of the
Interior, led to a wave of arrests throughout the country. It
is bel ieved that some 1,000 persons were taken into custody
including alleged leaders and members of M-19. Others
arrested included students, trade unionists, university
professors, journalists, politicians, lawyers, artists,
workers, peasants and Indians.
Persons arrested under
brought hooded to one of
the
the
Security
army's
Statute
secret
were usually
interrogation
centres, where they could be held incommunicado,
unable to
contact or be contacted by relatives, friends, lawyers or
doctors.
Many allegations of torture were made by detainees
either personally or through their lawyers. The complaints
include allegations of blows, prolonged standing, hanging
suspended, electric shocks, immersion in water, and psycho-.
logical tortures, such as being forced to watch the torture
of others, verbal abuse and blindfolding.
Among those to have made these complaints were 34 stu-
dents who said they were tortured shortly after their arrest
in September 1978. The Procureur General ordered an official
inquiry by a military judge who reported in March 1979
stating that the students had not been tortured. However, the
medical report of examinations made by the coroner's office
was later made public. This showed that many of the students
had lesions which were consistent with the accounts given by
them of their torture. Photographs of the lesions were
subsequently published by a colombian magazine. Few people
- 63-
were willing to accept the report of amilitary judge on this
matter since all security suspects are arrested, held,
interrogated, charged and tried or freed by the military
authorities.
A special Commission was appointed by the Municipal
Council of Bogota, which included members of all political
parties. It presented a report on 24 April 1974. The Commis-
sion itself did not reach any findings on whether torture had
occurred, but set out all the evidcnce which it had collected
from detainees in three prisons. The Municipal Council
unanimously deci ded to publish the report and submit it to
the President of the Republic.
Many of the practices and nrocedures adopted by the
armed forces in applying the Security Stazute not only vio-
lated Colombia's obligations under the International Covenant
on Civil and Political Rights but were in conflict with the
constitutional rights laid down in Chapter III of the
Constitution, rights which remai:1 in force even under a state
of siege. Sume, such as practices of torture or other forms
of cruel , inhuman or degrading treatment or punishment were
clearly illegal anc' unauthorised and were serious criminal
acts under the domest.c law.
The widespread practice of arresting and deta:ning
suspects for interrogation was justified by the government by
relying on Article 28 of the Constitution. This gives power
to the government, with the prior approval of the Cabinet, to
make a detention order for up to 10 days when "there are
serious grounds to suspect disruption of public order".
However, this is a power that cannot be delegated, and
attempts to obtain copies of the supposed orders authorising
the detentions were met with the astonishing reply that the
government's decisions are official secrets. In practice the
arrests were made arbitrarily by military patrols without any
prior authorisation. The patrols would penetrate the privacy
of people's homes and carry out unauthorised searches and
arrests based on mere suspicion.
This was a violation of Article 23 in Chapter III of the
Constitution, which provides that "No one shall be imprisoned
or arrested and no house may be searched without an order
written by the proper authority, complying with all legal
formalities and based on a motive previously defined by the
law".
It is perhaps significant that these powers were used to
harass and invade the premises of progressive*roups, such as
church based centre- for social studies, ard to restrict
trade union activity, and to arrest demonstrators protesting
against social inequalities, whereas the massive smuggling of
drugs and the corruption associated with it were not touched
by the Security Statute.
- 64 -
When persons were detai ned asI prelUrled members of' sub-
v ersiv e gropl s:1 , i L wa; alImo:;t i mpo s i lI 1'or them to prove
c
the i r innocence under- th oI ndi i n ; o physical ani d psycho-
logica r. ' exert rl uoen .11. r'ovea Ii rig was
e "d t., 'the c aT
t.h t, ofI w , 0:;uI i p F II ; t 'A'h 1t F :Ti t" If the rmy
W ro Fr .- h7 a i 1
7 V sl
nmes etveled0I ii iI
1979 n v F-, y Idr ,110111ds. Th.,ir worF
camtal ign . pub IIr adverse. it y bI'I i, ainy tri AI 1 i started.
I ;liz;; I A I I tlhat I boy I',, at -
t s ,tod .W 1,11c i' 1 th 11e
aIT;.; s1I , , I' i na I onr a [l 0'VI m In I's , n e t I mn ii;ter 'l o r
.justi1ce, Wilt hadl, ii, r'-s:p~rnsilbil]i ty r'o" h, the Pro(Iceed!Iing,p,
.j( Ino d , ,11) i ('"l It bet.-
I t I 1 i c A u s A I nkc Th11rLk I t ) F"ra
1
w "II (I I o11bI A T AIl nd Ih VT I " 'All , I ,' , Ihey t I' i ,d not 1)y a
lilI I tI t ry 'llr I ut I I, 't IreI n Ti irnary c' t , ','ith the result,
thatl t h+'y ' ,;'', Acq+Ili t , t ',lI 1;,'1, "FI ,v id,n.lc ,
I II T Ip i , ',hi( h h, " i I'llnitern
Commrr1r1 ii I"n II .or j lIs I I Plp i' r i II1 t1is s;LI
1)r', pa r ,'d t Ts ;t l. t tionl
dy, 1)r A Ifredo
VA'I
v
tT, l I CoI
q
1
u (7- 'i'rI ",IsA he ' II It) t, P'e[rlle t m ir Lt ee
r'or thte [D', tln , +l"r Humanil[ P'iv lt: iln CQ "mhtti A, w,,r"}to :-
"The p r1, 1!1 Ir ".11 [II t j i ,,naI s tIAt '- o r e clWl. i l i n
s17 !; I'; A11 "o r 't o r
t it iio AiI, I llI 1i A : t -'r.:s :; ' t dIci ion
pAlrI L IlrulI i t l'. rsI . t '' t IInt fII11 l ,nlI I i riut ion rui0t] the
Con;t iti II - i, t
ra I I t n The, rh ,r i,,r u' nIt I t vi1( Til ec,lt arid
I dI Vi It(I r' I (,, ImI1rtIIIIY F Ia W and inlmtpeit nlle ao
.just!ice, whi!,. t h,. latter",Penly cutntra; ~icts; it1.
lT I1 :tts AI I or I il; '1' I r' ,y t1orma ItI o t. i tu t i oil r a 11.
1 IltAT
I+ I 1 TilITT(i I
0t'i ' s
0' p0FI I t 1iu 1,1 OF IT
1
F 1
lmTTtIti aIc ?I Is
I;thatI I ea
. 110TI 1 O Vi r 11M t t 0II S~l til' (0 I V OF1"I111+,11 1I- C U)
inS
.'-
1) e11 p IITl';TIlt ''IoI I )dI vid11A I'r'1IIdo11 And 'T kl IIh excep-
tIiI I,- I p (cl ,to, ' IT r the IV TI, I IpT t 1 and t r ii or c rFiFme
befo r m i Ii C.tiay 0 ITII' r s . I i. 'T ll Ii )(1 !;lii If t t Ii , t h lt. I ega-
Oi i' C ha
I Ity ty d i . Tiptp, d in th ti.T.ry : i t, tol I r e1 Tc1e d,
t.hou h, b1y T st I t "F o vXI,'ptt i"1n. iol Fe i mpl r Ian II s i t tached
t.1 I ti f. 1I T 1 t.101OTT ITll ,I IIIheI; iico IF th i 15s , ad1111 ' e vy use of
1egTAI jAr onr I ; MA , ii Il'd r to avo id s;aying t.il t the state
or law has: dis.; tp ,,;r'+d0
Co l, 1 ia i; o'llf t he [ A n Aiec, c ou nLr i e s whie
this ion coup;o. I I.i J
i lltu a IT The .lT constituAio l u F e not
correpo1)1111e nd t o r- ;I i tTy oIV t, oI s t,i toI o r si gc wh10ch con-
tradic, it v i o1Ia mII " I t 00IT
tsl alld I 07 ny f Ie lil (I rt. ic I es, as
was the c AA" wI tIh the Socur i .y s itatut()ecre,,e r' 1923,
Sep temnber 6, 1978) . '1o 1egin wit h, t )hill 1efree was issued
U il II r a t I t s'Ii p t1. I, t d t i ITI f1,1c 1 a r It t wo yea F s
befoe, t a orf :1s 1cial 0workers0l, Ithat IOe
ice atI;r ik.:e ecurity
al)bsol eIt' y ill r 1Tit tj n t I h prvi isiion ( r the Secur ty
it ('
S tatt.I e. FliFtli,' I'ITIFI , h', d11e l'.l. 'Wa I ll mA Iy ai president
wlo ht beel) e I lec 1 t I Tlland i Ii aIugillu ' a L d 11n AupIIU . o,
r
t h1e 1am0
Ii1101of i I" pe Ice."
year in ntll) l n PIT)1" (15)
15) This0 pa11;11age, wsll quoted in th110 ep o I ) the Si tua-
tion of Human Rig;ht.s ill the Republic of Colombia,
Inter-Ameri ail Commis.sion or Hlunan Rights, OEA/Ser.L/
V/1l.53 , '311e. P2 , 30 J.neiO 1981 , p. dd.
- 65
-
It is perhaps not fully correct to say that, legality in
Colombia was "replaced". Rather, it continued to exist in the
ordinary court:;, a i de by si de with a ,ystem o f miiitary
justice which w'a; essential ly an instrument of repression and
which departed from and lowered thet ;tan,.dards , ast ic e of
which CoIonbiun a re a:;JI p roud. Hlwover, as the c iv i I i all
judges were n 1onger a ble t )perform th ir coot r i'" iLutional
role of adiciaI r'eview oF the Executiv(, tic contradiction
betwen It,' I',AviI c~rln it l ,nI idt b.' cecth rQ ct] itotion, of
whi ch Lc A1redo Va.qu.v C arrizo sa speak; , betw ane more and
mcre evidenoLr .
In Noivem ber" I"H() thi to li I ional C,nver;nIi of Ma ,iatrates
andt J ad u'ap hi'l t I i n Ho glnt A, di ;;1;;s et d tile ;itUation of' the
,
judicial power and adopted mt in: on 1he t ate of inse.,curity
and 1.'. f-i" pr", K0ti .o litr pubI ic servan ait j n t.hte ju:; t ice
sysLtem. 'IT'hn,.ws:Itpt'r El ITi 'opm of .January10, 1981, quoted
)r Jaime Botc 1r Ciu; r' ian, presaiden t i th' Ciiuncil of State,
a.; :;:i h, p r day in Ii I I ii "A :;t atte o f Iaw does y i itg tr'vioh:: 'io
I a ia t tlhe a no ;ttx I Co I om)t : 1 frI , to cttnt r.a ry,
coni;t1 Ii t t ,ic at r lnIo:3 hp has been ct i . .a.e.A
dictat 'or::hip ,ox i t a, 1'0c 't. cpt1o-u 'ntrated a b uita art ton in
the excttt iv, An Lhto 1a t branc hes." arid I ep: ive i (16)
Thii 1; crit i ii W::; m1de nt twi t a:tndingp t he constitu-
Ii onal r',feorm; o F 1 u/ . BY leisIl ive Act N" I of November
21, 1979, the tiI,',' etablished, int.e alia, the Attorney-
(eneiral f ft ic. , rtd ching es:;i , ci Gene ' I u tl t Pro rator ra s
office and, a:a p a r o f tihe I aLtovr, the orgaits a t ioni of the
0office o r b- Aa:;i a ;ttnI Procui'at1o General for Hluman Rights.
The r er'tr ::I- at the Proctrat or G neral dtid his agents
rt.;pton;iP1 t'" 1,'ndir humilan rightsq, securirg social
guar:nrteeIs aid :;pervis th b ic administration. He .;ip, p 1u was
given p V' ijl power; to inveatigate compl:iIt t. of human
rig ht: viol tion:; nd, whe;re appropriate, to commence legal
proceetint:;, tot :;:tpfeguir tr teii a fair trial and to
watch c cotnduct of public and other powers ,r"the off'icials,
to anftr.' the Iaw. . Tht ofice of tLe Attorney-General was
madi'e r-op nsi:;I- lrpfrI<otItilig crimes.
Uni,1rtu10- It.ly, - :n 1- ng a:s t state of siege lasted,
thetose r f-irm!; u'iit- but tnotIter part of' the formal rather
tit 1 t h, r';tl ...n:t itotioi. fo r their powers did not extend
effectiv.ly t, the illed force;.
'h wide:;p ead u:;t' e of torture in order, iater alia, to
compol sus 'pectsa t.o: ign confessoions was riot only a violation
or .: prohibition agains t torture, but was a violation of
Article h, on#- ttf the non-derogable articles in Chapter III
of tho Constitution, which provides that "No-one may be
16) Ibid, p. 135.
- 66 -
compelled, in criminal matters, to testify against himself..."
Detailedevidence of the practice by the army of torture
and of extra-judicia Ini 1i ngs is to be foud in the 1981
report of an Amnesty International mission entitled "''he Army
in Rural Colombia: Arbi trary detention, torture and summary
execution". This report identifies over 30 places where
poI it i cal prisoners were tortured and 1ists over 50 di fferent
methods of torture.
XI. Conclusions of the Inter-American Commission on Human
INights
The Amnesty International reportt confirmed the evidence
and findings of the Inter-American Commis:;ion on Human Rights
in their report publ ished in June 1981. (17) In its
diplomatic language tihe Commi ssion of distinguished indepen-
dent riiat:; tato amdrin their conclus ion:;
"2. The Commis; ion be[ i'Pves that the condi t ions de-
r iv ing frum the 'tatLe of s i eg which has been in effect
almost wi tihout inte:rrupt ion for s;everal decades have become
an endemic asituat.ioI which has halmupered, to a certai n extent,
the lu11 enjoyrent of c iv i 1 freedom; and rights i n that,
ainorg other t h i ngs , it has permitted trials of civilians by
mi 1itary cosur'ts. The Commi.s.;ion also believes that in general
the st.a t e of siego has not resu 1te ii the suspension of
constitutional guarantees and that, because of its pecul iar
features it. has riot posed a real obstacle to the operation of
democratic institutions.
3 . ... Although the Security Statute is exceptional in
nature, it grants mil itary and police authorities the power
to impose penalties:, it permits trials of civilians by
military courts, restricts the right to a fair trial and
other constitutional guarantee;, and includes types of
lengthy punishments that are inconsistent with the excep-
tional nature of the Statute.
5. In connection with the right to life . . . the Com-
mission is of the opinion that this right has been the object
of violations in some case;. . . . the government's efforts
have riot been totally successful in preventing or suppressing
these abuses.
6. With respect to the right to personal liberty . . .
there have been abuses of authority such as mass arrests,
illegal detention procedures and in some cases, illegal
searches and seizures, and extension of the legal period for
interrogation and investigation.
17) 2o_cit.,pp. 219 and 220.
- 67 -
7. ... the Commission believes that the right to
personal security has also been violated. These violations
have come during the interrogation stage of persons detained
by reason of the measures promulgated to combat violence
stemming from the action of subversive groups and have led to
mistreatment and torture. . . . it is obvious that the Govern-
ment's efforts to prevent and repress such abuses have not
producedsufficiently effective results.
9. As concerns the right to a fair trial and due
process, the Comm ission bel ieves that the ordinary system of
justice is operating normally and in accordance with the laws
governing it. The mail itary justice system does not offer
sufficient guarantees because its rules contain restrictions
on the right to a fair trial anwd in practice, procedural
irregularities that impede due process have occurred."
The Commission recommended that the Security Statute
should be repealed 'as soon as circumstancespermit'.
XII. General elections, political amnesty and the lifting of
the state of siege
Following a government statement that public order had
been reestablished, the state of siege was lifted by Decree
No. 1674, of June 9, 1982. As a result the Security Statute
of 1078, as well as other legislation passed by decree under
the state of siege, ceased to have effect.
On March and May 1982 presidential and parliamentary
elections were held, and on August 7 Dr. Belisario Betancur
assumed the Presidency. All political parties that wi'shed to
do so, were able to present candidatesand the elections were
considered by both national and international observers to be
free and'democratic.
A law granting a limited amnesty for political offences
had been pasbed in March 1981, but owing to its limited
effect, it did not achieve its object of persuading the
guerrilla movements to sur ider their arms. Later, by
Decree 474 of 1982, another ttempt was made by the govern-
ment through a revised ami ty decree, but this was again
unsuccessful. Finally on November 19, 1982, the newly
elected government succeeded in obtaining parliament's
approval of Law No. 35 granting a general amnesty to everyone
who had committed political offnces of rebellion, sedition
and rioting before the date of the law. Also comprised in
the amnesty were common law offences linked with these, or
committed with a view to perpetrating such political
offences. The amnesty did not apply to persons who had
committed acts of homicide, other than in combat, on defence-
less persons or accompanied by acts of cruelty. By the same
- 68 -
law, a rehabilitation
programme
of land distribution,
housing,
credits,
education
and health services
was provided
to re-settle
those benefitting
from the amnesty
as well as
people living in regions
which had been devastated
by the
armed hostilities
This amnesty
law was accepted
by most of
the guerrilla
groups, but some decided
to continue
their
armed struggle.
As a result of these measures
the new government
is
receiving
widespread
support in its efforts to consolidate
the rule of law.
The responsibility
for investigating
crimes, including
crimes of subversion,
now rests with the civilian
Attorney-
General,
the responsibility
for
of
ensuring
the protection
human rights with the civilian
Procurator
General,
and the
responsibility
for trying all offences
of civilians
with the
much respected
and independent
civi ian judiciary.
It is to be hoped that Colombia
has now succeeded
in
living through the experience
of repeated
states of siege and
will be able to settle down under a democratic
civilian
government
to grapple with the country's
immense economic
and
social problems.
-0-0-o-o-
- 69-
SOCIALISTLEGALITYAtl THESTATEOFEMERGENCY:
LEGAL DEVELOPMENTIN EASTERNEUROPE
CONTENTS
Page
SOCIALIST LEGALITY AND THE STATE OF EMERGENCY .................... 71
THE SOVIET UNION ............................................... 72
TheRevolutionand CivilWar.............................. 72
StalinandEmergencyJudicia. Procedures................. 72
Post-Stalin2eforms .................................... 73
CurrentStatusof EmergencyMeasures...................... 74
Conclusions ............................................ 77
HUNGARY ........................................................ 77
ConstitutionalBackground.................................. 77
The NagyGovernment .................................... 78
Kadar and the Judiciary.................................... 78
Implications ........................................... 79
CZECHOSLOVAKIA ................................................. 80
1968: Sovereigntyand theState ofEmergency ........... 80
1969: TheHusakGovernment................................ 81
Implications ........................................... 82
YUGOSLAVIA. ..................................................... 84
Kosovo,1981 ........................................... 84
POLAND ......................................................... 85
MartialLaw,1981-82 ................................... 86
Legal Implications ..................................... 87
Conclusion ............................................. 89
GENERALCONCLUSIONS ..... ...................................... 89
-0-0-0-0-
- 71 -
SOCIALISTLEGALITYANDTHESTATEOFEMERGENCY
Inasocialiststateth.e citizen'srights are
indivisiblylinkedwithhisduties .... Acitizen's
evasionof hisduties rendershimliable to
measuresofstatecoercion (1)
The link betweenrights and dutiesisthe primary theoretical
basisofpublicorderin thesocialistcountriesofEasternEurope (2).
Neithernationalnor individualsovereigntyisinviolate; failureto
performspecifieddutiescould becomethepretextfor asuspensionof
basicrights. Theextensionof the linkageconcepttotheinternational
arenaresultsin the "BrezhnevDoctrine" - atheorythatseeksto
justify armed interventionby fellowsocialistgovernmentswhenone
stateisindangerofdeparting fromthe correctpath (3). Analogously,
any individualdeviationfromthesocialistnormwithin anation-state
mayjustify state coercionincludingthe suspensionofindividualrights
and the impositionofextraordinary legalmeasures. Theneedfor safe-
guards against the abuseofenhancedstatepowerduringastate of
emergencyis as compellinginsocialiststatesas inanyothertypeof
state,eventhoughthe theoreticalunderpinningsdiffer.
EveryEasternEuropeanstatehas constitutionalorlegal pro-
visions forsome formof state of emergency. Underarticle67 of the
AlbanianConstitution (4), thePeople'sAssembly "proclaimspartial
or generalmobilisation,the stateofemergency, andthe stateofwar
Underarticle78, thePresidiumof thePeople'sAssemblymay proclaim
astateofemergency"whenitisimpossible toconvenethePeople's
Assembly ..." TheAssemblymay,underarticle 68, extendits session
"beyondthe termforeseenfor as longas thestate ofemergency
continues". Under article94, section 8,of the BulgarianConstitution,
the StateCouncilmay "proclaimgeneralorpartialmobilisation,martial
law,oranyotherstateofemergency" duringperiodsbetweensessions of
theNationalAssembly. Article69empowersthe Nationai Assemblyto
extendits termin case ofwar or "exceptionalcircumstances". Article
52 of theConstitutionoftheGermanDemocraticRepublicprovides
ThePeople'sChamberdecidesonthe stateofdefence
of the GermanDemocratic Republic. In emergencysituations,
theCouncilof State isauthorisedto decideonthe state
ofdefence. TheChairmanoftheCouncilofStateproclaims
thestate ofdefence.
Underarticle 73, section1,the CouncilofState also"passes fundamen-
tal resolutionsonmattersinvolvingthedefenceandsecurityofthe
country" (5). InRomania,underarticle 43, section21, oftheCon-
stitution,theGrandNationalAssembly "proclaimsastateofemergency
inthe interestofthecountry'sdefence,publicorder,orsecurityof
the statein somelocalitiesorthroughouttheentire territoryofthe
country". TheState CouncilofRomaniahasthe interimpowerto impose
astateofwarormobilisation (article64, sections 7and8)but i3not
delegated thepowertoproclaimastateofemergency. Thatpower is
grantedspecificallyto thePresidentofthe Republicby article 75,
section13.
- 72 -
The remainingcountriesofEasternEuropewillbe discussedin
greaterdetail,in thecontextof historically
experienced statesof
emergency. Becausethe SovietUnionwas theworld's firstproclaimed
socialiststate,the Sovietlegal historyof statesofemergency will
be outlinedfromthetimeofthe Revolutionuptothe present. The
states ofemergencyinHungary it,1956, Czechoslovakia
in1968 (defacto)
and1969 (official), Yugoslavia in 1981, andPolandin 1956, 1970and
1981-82will thenbeanalysed in aneffort todiscoverthe basic
characteristics
ofastate ofemergencyinEasternEurope.
THE SOVIETUNION
The RevolutionandCivil War
Manyof thebasicprinciples ofsocialistlawwere forgedduring
theOctoberRevolutionof 1917. Leninhimselfapprovedof the extra-
ordi'arymeasuresthat Dzerzhinsky,the firstheadof the Cheka,deemed
necessaryto save the revolution(5a). But Leninperceivedequally well
theneedto constructand strengthensocialistlegality. InNovember1918,
he .!rotethatextraordinary
measures,essentialinthe struggleagainst
counter-,7evolution,
shouldbeapplied only exceptionally
(5b). Leninbelieved
that the executionofextraordinary
measuresshouldbe accompaniedby a
writtenexplanationto guardagainstabuse (6). During tite periodof
revolution,civil warand foreignintervention,
however,anewlegal and
social orderwas beingformed. Leninand his followersweredeeplysus-
piciousofthe legal systemthathad servedthe tsaristpolice state;
consequently,
from itsinceptionsocialistlawacquiredaclass basis (7).
Thediewascast: consolidation
oflegalitywithin the socialistframework,
coupledwithruthlessness
toward counter-revolutionary
elements.
Revolutionary
militarytribunals werethe watchdogsoflegalityin
the RedArmy andalso in the rail transportsystem,whichwasplacedunder
martial lawduring the "periodofarmed foreignintervention
and the civil
war" (9). Throughout the country,Dzerzhinsky's
Cheka andits successor,
theGPU,actedas alawuntoitself, carryingout arbitrary arrests,secret
trialsandsummary executions (9). Revolutionary
tribunals,whichconsisted
ofajudge and six layassessors, "disperi dprimitive,severe, sometimes
arbitraryjustice" tosuppress the foes - socialistrevolution (10).
85.2percentof the 26,738persons broughtto trial before therevolutionary
tribunalswere convicted (11). The harshmachinery,theswift and severe
justice,and thesuspensionofdueprocess (12) were considerednecessary
duringthe birthof the newsocialiststate. Ineffect,awide-scalestate
ofemergencyprevailed.
But the use of truncated judicialprocedures was
considered to be atemporaryexpedientconcomitant to warcommunism(13).
Stalinand EmergencyJudicialPrjcedures
Afteraperiodofretrenchment andconsolidation
duringthe eraof
theNewE'onomicPolicy (14), aperiod of "legalnihilism"ensued (15).
Theforced collectivization
of the peasantryandliquidation ofthe "kulaks"
(16)led tomassivedislocations
inSovietsociety. Repressionbegan to
mountin1928 (17) andby 1933, the securitypolice (OGPU)hadbeengiven
thepower toexecutecitizens. Stalinfelt thatsuchdrasticmeasureswere
necessaryto eliminate "obstaclestosocialistconstruction"
(18). Most
minousof all wasthe creationof "specialboards" (19)empoweredto
banishthe "sociallydangerous"to internalexileanP labour campsorto
2
- 73-
expelthemfromthe countrywithoutregardtotheprovisions ofthe
applicable criminalstatutes (20). Theprimary functionoftheboards
was todeteropposition to the state bycreatingageneralatmosphere
ofterror (21). Summaryprocedureswere instituted 1December1934,
for terrorismand 14 September1937, fordamage tostata propertyand
sabotage (22). Deathsentenceswere immediateandnon-appealable (23).
Stalin fully intended'oeliminate the "kulaks"aswellas anyoneelse
whomight standin hisway. Professor LeoKuperhas documented the
Sovietoppositionto the inclusion ofthecategory "politicalgroups"
as aprotectedclass under theGenocideConvention (24). It was not
the stateor its apparatus thatwaswitheringaway; itwas legality.
DuringWorldWar II, martiallawwasdeclaredwidelythrough-
out the SovietUnion. Themilitaryauthoritiesweregiventhe right,
interalia, "toimpose curfew,restrictstreettraffic,andwhenever
necessary, to searchhousesand arrestsuspectedpersons ..." In
addition,bymeansof "anadministrativeprocedure",they could "deport
fromlocalities undermartial law ...personswho are considered
sociallydangerous,either becauseof theircriminalactivitiesor
because oftheir connectiunswith the criminalworld" (25). Thus, the
wartimestatuteprovidedaclearerdefinitionof the term"socially
dangerous" thandid the pre-warstatutecreating the special boards.
During the war,all casesthat involved 'crimesdirectedagainstthe
nationaldefence,publicorder, and statesecurity", including specula-
tion,hooliganismand crimesagainstthe state,were submitted for
trial by militarytribunals (26). Sentenceswere notappealable,and
couldbe alteredonlyby wayofsupervision (27). Allrailroadswere
placedundermartial lawinApril 1943 (28). Thisincluded the right
to "impose administrativearrestforviolatorsofdiscipline fora
periodupto twentydays" and, for servicecrimes, tosendthe trans-
gressors"to the front intopenalcompanies, unlessthey are subject
to amoreseverepunishment" (29). This legalregime wasextendedto
all water transportinMay.1943 (30). Geographicregionsplacedunder
acompleteregimeofmartiallaw included,but werenotlimited to,
Stalingrad,the Chechen-IngushASSR,the Kabaradino-BalkarASSR,the
NorthernOssetianASSR.theOrdzhonikidze territory,certain cities
ofthe Transcaucasus,the shoresof theBlackSeaand theCaspianSea,
the GeorgianSSR,theAzerbaidzhanSSR,ArmenianSSR,and theSaratov
and Tambovregions- restoredtonormalrule inSeptember 1945 (31).
MartiallawinLithuania,Latvia,Estoniaand thewesternregionsof
the UkraineandBelorussiawas not lifteduntil4July1946 (32).
Undeniably,the USSRwas under thegravest threatto its existence
duringwhatthe Sovietscall theGreatPatrioticWar. Theremarkable
aspectis the similaritybetweenthe wartimemeasuresand thepeace-
time measuresadoptedby tieStalinregime.
Post-StalinReforms
In1950,ProfessorJohnHazardpredicted"Emergencygovern-
mentwillbe t,lerated ...butthereis alimit evenamong the
Russians. Therecannotbe anemergency forcenturies" (33). Govern-
mentbyemergencydecree led to anunprecedentedabuse ofpowerbythe
state. Perhapsas asignalto theSovietpublic,the SpecialBoards
wereeliminatedbydecree in 1953, sixmonthsafterthe deathof
Stalin (34). Adecreeoi 6April 1956,repealedStalinistdecrees
thathadintroducedextraordinarysummaryproceduresfor certain
offences (35). FirstSecretary ofthe CommunistParty,Nikita
- 74 -
Krushchev, revealedin a"secret"speech to the 20th PartyCongress that
the lawlessnessperpetrated
under the pretextofemergencymeasuresto
strengthensocialistconstructionhad, in fact, damaged the cause itpur-
portedtoserve. "Manythousandsofhonest and innocentCommunists have
diedas aresultofthis monstrousfalsification
of such 'cases'", he said
(36). Stalin'spoliticalpolice had followed "apathoffalsification,
mass
arrestsandexecutions" (37). General reforms ofthe legalsystemwere
undertaken in 1957 and 1958 tohelppreventrecurrence of someof the
abuses (38). On 12 February 1957, all cases formerly under the jurisdiction
of thespecial transportcourtswere placedunder the jurisdictionof the
general courts in order to implement "the simplification
of the Soviet
judicialsystem" (39). On 25 December 1958, the Supreme Sovietsetout in
detailthe functionsof themilitary tribunals in the USSR, specifyingthe
principlesoforganization
and operation,jurisdiction and otherquestions
(40). From thedissolution of thespecial boards to recodification
of
statutesand limitationof judicialpower, the movement towardincreasing
legality receivedmuch ofits impetus from thebitterexperience felt first-
handby the lawyers, politiciansand bureaucratsof the maturingSoviet
state. Extraordinary
procedures spawnedcruel andarbitrary"justice".
Emergencymeasures usurped thedictatorshipof theproletariat
and led the
Sovietpeople to thebrinkof tyranny.
CurrentStatusof EmergencyMeasures
The furtherstrengthening
of socialistlegality
and the legalorderare ...clearlyexpressed inthe
draftof the newConstitution.
Weknow,comrades, that someof theyears following
the adoptionofthe presentConstitution
were
darkenedby illegalrepressions and violationsof
theprinciples ofsocialistdemocracyandof the
Leninistnorms ofPartyand state life. Thiswasin
violationof the rules of theConstitution.
The Party
has condemned thispracticeunreservedlyand such
thingswillnever happen again.
- L.Brezhnev
24May 1977 (41)
Althoughit seemsunlikely todaythat thespecial boardswouldbe
resurrected,
the importantquestionremains: whatare thestructural
barriers to the recurrenceofsuch awide-scale suspensionofbasicrights ?
The "illegalrepressions"
violated the StalinConstitution
of 1936. Only
an increased legalconsciousness
and respect for the constitutioncan
lessen the likelihoodofabuse ofemergencymeasures (42). The emergency
actionsat the disposaloftheSoviet state today range fromfullmartial
lawto specificemergencystatutes to crackdownsunder the cloak ofover-
broad statutes.
Under the 1977Constitution,
thepower toproclaimmartial law
restswith the Presidiumof theSupreme Soviet. Article 121providesin
pertinentpartthat the Presidium:
,C/1proclaims, in the interestsof thedefenceof the
USSR,martiallawinspecificlocalities orfor the
wholecountry;
- 75 -
/16/ proclaims generalor partialmobilization;
/177 during the time betweenthe sessionsof theSupreme
Sovietof theUSSR,proclaims astate ofwar in the
eventof amilitaryattackonthe USSRorwhen
necessary to fulfill treatyobligations concerning
mutual defence againstaggression.
Theoretically, then, the Presidium may declare war only if the
entireSupremeSoviet is not in session, but could declare martial law
evenif the largerbody were opposed. Thismay be justifiedon the
ground that speed is of the essence; but it is noteworthy that there
is no constitutional requirement for a timely confirmation by the full
body, even for the proclamation of martial law throughout the entire
country. There are provisions to convene the two chambers of the Supreme
Soviet for extraordirinary sessions under arti,- e 112, so it would be
feasible to recluire .i confirmation within a specified time period.
The only operativ'tn limitation is that proviied i the general phrasing
of article 119, that the Presidum is accountable to the Supreme Soviet
"in all its activities" A clearer requirement of confirmation would
be advisable for a decl,ira tion with such far-reichinq and potentially
dangerous consequences.
The Council of PIinisters of the USSR is vested with the power
to execute the e.mergency measures. Under article 131, the Council:
/3/ tahes measures to defend the interests of the state, to
protect socialist property and public order, and to
safeguard and defend the rights and freedoms of citizens;
/4/ takes measures to ensure state security .....
In the event of a state of emergency within the Soviet Union,
themilitary tribunals may in somecircumstances acquire jurisdiction
over allcases. Article 10 of the amended Soviet lawonmilitary tri-
bunalsprovides that "In localitieswhure by virtueof exceptional
circumstancesordinarycourtsdonot operate, militarytribunals shall
considerall criminaland civilcases" (43). ProfessorHarold Berman
states that anearlier,identical provisionwas applicable "not only
wheremartial lawhas been declaredwithinthe SovietUnionbut also
whereSoviet troops are situatedoutside the SovietUnion." (44)
Aconstitutionaldeclaration of martial lawmay, however,be
unnecessary to effectuate ageneralized repression: a"crackdown"may
suffice. Thereare twotypes of crackdowns, neitherof whichis un-
known inmanyother politicalsystems. The first is officious
applicationof statutes in force. Whenthe statutes inquestionare
vaguelyor broadlydrafted, this type of crackdowncanbecome a"quasi"
stateof emergency, or ameansof suspending basic rightswhile cir-
cumventing the requirementsof international covenantsor evenof the
state'sown constitution. This technique has provedto be an
effectivemeansof repression in the SovietUnion. The accordion-like
offences includeanti-Sovietagitationandpropaganda (415), hooliganism
(46), socialparasitism (47) and variouspoliticaloffences (48). The
extentof human rights violations in the USSR is beyond thescope of
this chapter (49). The concernhere is withanorganizedsuspension
ofrights by the statein amannerdesignedto circumvent thestate
ofemergencydeclaration.
- 76-
Thesecond typeof crackdownconsists ofalarge-scalecrackdown
thatviolateseven the state's normsof legality in the interestof
expediency. AsProfessorStanislawPomorski has stated:
Anti-crime campaigns ...tend to blur the line between
administration,governed by considerations
ofexpediency,
and adjudication,governedby impersonal, general rules.
Theyalmost invariably involve sumstantial abandonmentof the
rules for the sakeof expediency. They representamajor
retreat of the dueprocess functionin favour of thecrime
control function ...(50).
Pomorski then cites the expost facto impositionof the death
penaltyduring the 1961-62campaignagainst economiccrimes (51). The
twomethods-- abuse of standinglaws and violationof standing legal or
constitutionalprovisions-- may ofcourse be used in concert. Themost
pernicious innovationin officiallysponsored suspensionof basic rights
is that of psychiatricabuse. Deprivationof rightsmay occurwhen com-
pulsory commitmentprocedures are used to circumventthe regular require-
ments of criminalprocedure:
Theaccused need not be told that an order calling for his
psychiatric examination hasbeenmade, nor needhe be in-
formed of the results. Once the accused'ssanity has been
called intoquestion, the investigationofficials are not
required to inform himof new charges ...It is left to the
court'sdiscretion as to whether the accused or his relatives
shallbe allowed to attend the courthearingwhichdecides
uponhis sanity and his need for confinement to apsychiatric
hospital ...In manyrepublics of the USSRthe hearingneed
notbe open to the public ...Thereis no need for officials
toprcvide asmokescreen for the closed natureof suchhearings,
as they mustdo in political caseswhere no formal issue is made
of the sanityof the accused. (52).
Dr. A.natoly Koryaginhas pointedout the correlation betweenthe
time required to "treat" thevictims of thisprocess and the prisonterms
specified for the offencesunderw~iich the victimswere originally
charged (53). In addition,by replacingthe psychiatricmeaningof the
term "sociallydangerous" by the judicialmeaningthat the patientmay
be capable of harmina theSoviet systemas awhole, the entirepro-
cedure maybecomeageneral suspension ofdueprocessrights (54). Before
elections,major party congresses, US President Nixon'svisit to Moscow
in 1972, and the 1980Olympics,"undesirables"were roundedupand com-
mitted to psychitrichospitals, thus avoiding thenecessityof meeting
either criminal procedural requirements or international standardsfor
emergencysituations (55).
In spite of the officialrepudiationof illegal, Stalinistre-
pressions,the spectreofStalinismmay bedescribedin the crackdowns.
Duringperiodsof tensionor politicalactivity, round-upsmay be con-
ducted by concerteduse of broad statutesor bycampaignsofficially con-
doned,expresnlyor tacitly, that actuallyviolate theConstitution.
Acombinationof the worstof bothworlds is the derailingof established
legalprocedures by usingpsychiatriccommitmentproceedingsin orderto
(a)short-circuit the proceduralrights of the accused witi.out presenting
evidenceor facingdueprocess guarantees,or (b)preventively detain
withoutformal chargespersonsundesirable to the state.
- 77 -
Conclusions
Constitutionalismin theSovietUnionhas strengthenedsig-
nificantly since theStalinistpurges. Therontinuation of this trend
is the onlyguarantee of PresidentBrezhnev'sdeclarationthat such
lawlessnesswill neverrecur. Moredetailed soecificationof the
requirements and powersof the governmentduringmartial lawwill serve
the endof socialistlegality in the USSR. The abuseof administrative
procedures arid broad statutes will lead to cynicism among legal pro-
fessionals,government officials and thepeople -- andwill ultimately
harmlegalityand increase the probabilityof seriousabuses ofthe
stateof emergency. In addition,the arbitrary applicationofover-
broadpenal statutes, circumventionof citizen's rightsbyadministra-
tive crackdowns,and the abuseof psychiatric institutionspresent
seriousobstacles to the construction of agenuine socialist legality.
HUNGARY
Asregards constitutionalismand therule
of lawaremarkableprogressmaybe recorded
since 1949. Herewe wouldmerelymention
that themultiplanar systemof the gusrantee
of legality is now firmlyestablished, viz.the
general obligationof the representativeand
administrativeorgans and thatof the judiciary
in the observationof legality, the special
functions of the prosecutor'soffice, the in-
stitutionof the judicial supervisionof certain
decisions of the organs of publicadministration.
- Dr. Gy5rgyAntalffy (56)
The prog'essof legalityand constitutionalismin the Hungarian
People'sRepublic has been atgreat cost. As Dr. Tibor Lukacs, head
ofthe Secretariat of the Departmentof Justice,noted recently, "for
atimethe legalorder ceased to exist" in late 1956and 1957, and
"the administrationof justice came to astandstill" (57). There
were two distinctperiodsof thestateof emergency inHungary,one
declaredby the Nagygovernment and thesecond perioddeclaredby the
Kadar government. Neitherprevented thebloodshed thatscars the
memoryof EasternEurope.
Constitutional Background
The first post-warHungarianConstitution,enacted31 January
1946, stated in itspreamble thatnoone should be deprivedof basic
human rightswithout alegal procedure (58). Article 11, section 2,
specified that the President couldestablishastate of waronlyby
virtue of specificauthority given him by the NationalAssembly. In
theAugust 1949Constitution,the preamble emphasizedinstead the
struggle towards socialismand thedebtowed to the SovietUnion for
liberationand assistance (59). Parliamentretainedthepower to
declarewar/article 10 (3)(g)/. Only the Parliament,by atwo-thirds
vote, couldchange the Constitution (article15). TheParliamentwas
allowed to extend itssession .ncaseof "war or otheremergency"
- 78 -
under article 18 (2), and could be recalledby the Presidential Council
under emergency circumstances
under article 18 (3). ThePresidential
Council,under article 20 (3), coulddissolveany local organof govern-
ment that infringed the constitution or was "seriously detrimental to the
interests of th, working people". Article 20 (4) re-emphasized that the
Presidential Council exercised all the powers of Parliiment when not in
session, except the power to amend the Constitution.
Article 20 (4)
require,, that the leg.Ily binding enactments of the Council be submitted
to the next session of Parlia-ment. Section VII specifies the rights and
duties of citisens.
Dr. Luikacs considered the spqecial courts abolished by Act 1I of
19,19 "surviv ln of the bourgeois jiudiciar'" (60) . They remained munmified
neverthelss in article 36, -;ection 2: "B'-y provision of law special courts
may be set up to deil with sor cific groups of cases". "Specific groups"
might me n. political cases, but there is no guidance in the Constitution.
HearL.ig,r were required to be conduc ted in public "unless otherwise pre-
scribed by la" (,rtile 40) . "'.ithrespect to "constitutionalism
and the
rule of law, the eveLts o 1956 had disastrous consequences,
particularly
with regard tc the Judiciar ,.
The Nagy Government
Cn 23 October 1956, oemonstrations in Budapest developed into a
revolt; Soviet troops and tai.ks, at the behest of the government, were
used against the rioters (61). On the following day, Imre Nagy was made
premier, partly in response to the demonstrators' demands. Upon assuming
office, he imLiediatelydeclaredastateof emergency (62). All public
assembly was banned, telephonic communications
were cut in some areas and
a curfew was imposed from 6 p.m. to 6 a.m. (63).
After Nagy declared a state of emergency, he began to negotiate
with the protesters. He formed a coalition government, promised an
amnesty to all fighters and, on 1 November, proclaimed Hungary's neutrality
and attempted to pull unqar out of *heWarsawPact (64). liedeclared
a gradual amnesty of prisone-s and unsuccessfully
negotiated for the
withdrawalof Soviet troops. On 30 October 1956, the Sovietgovernment
officianl'/, declared:
The workingpeopleof Hungary,whohaveachieved marked
progressunder the people'sdemocraticsystem,are
legitimately raising the questionof the need to abolish
the serious shortcomings in economicdevelopment ...However,
this just andprocgressivemovement of the workingpeoplewas
soon joinedby the forcesofblack reactionand the counter-
revolution ... (65).
At dawnon 4.November,the Soviets launchedaheavy attackon the
capital. Nagy asked for asylumat the Yugoslavembassy (66). JanosKadar
formed anewgovernmentwithhimself as premier. As Dr. Antalffy_,phrased
it, "Sincethe insurgents refusedto obeythe governmentappeal /to
surrender_, the armed liquidationof the risingtook itscourse (67).
!radarand the Judiciary
The changes in the administrationofjusticeunder the Kadar
regime'semergency measureswerepervasive (68). The firstchangewas
Decree-Law:o. 22 of 12 November1956,authorizingprosecutionin
- 79 -
regularcourts ofpersonsaccusedof violent crimeswithoutrequiring
the Procuratorto submit abillof indictment,issue asummons or set a
datefor thehearing (69). On 11 December, the second period of sLate
of emergency officially commenced: martial lawwas declared. The
Presidential Councildecreed summary jurisdiction throughoutthe coun-
try for violent crimes such as murder, looting, damage of public
utilities ind unil icensed possession of firearms (70). Two days later,
the death penalty was prescribed for crimes subject to summary pro-
cedure ;71). Detailed rules for suul.iary procedure were published on 13
December (72). Military tribunals were qiven jurisdiction over the
summary proceeding; (73) . On 15 January 1957, Special Councils were
created to process suriar tr aIs Onder artic]e 2 o, Decree-L.w No. 4
of 1957 (74). ArticleI of that Decree-Law extended jusriscdicetion to
such crimes Is "or'J1 i:,t.ion a:Jainst the Peop]e'l5 Pepublic ... Ind
associa ting for thi s rr)osc"
The decl.aration of ma rti'l 11law wu!; coupled witii new measures
,or preventive detention. Dtecree-aw 31 of 13 December 1956, oncerning
Public Securit,'' Detention, called for doetent ion of anyone "whose
activities or 1lehaviour enItanec:ublic order, or public security, and
in particular the undisturhed continuity of productive work Ind trans-
port ... " (article 1), (75). A month later, the Minister of the Armed
Forces and Public '.;ecurity Affairs promulgated detailed rules for
detention, nrnv i,ii a 48-hour time limit for the prosecutor ti, approve
the recoirmend. ,t ion of toe olice vithority (articl 2), a complaint
procedure (.irticles 3 and 4), termination after six months (article 9)
or when ordered, and deduction of the cost of detention from the
remuneration for assigned work (article 7), (76).
The curfew ended in Budapest, 14 April 1957 (77). Summary
jurisdiction was abolished 3November 1957 (78). The role of the
people's tribunals was limited in the sring of 1958 (79). Law-Decree
No. 12 of 1959 ordered partial amnesty for certain crimes (80). Premier
"radar put a wide amnesty into e.fect on 4April 1963 in order "to
liquidate the remainingproblemsdatingback to the eventsof 1956" (81).
Anotheramnestywas announced25 March1970by Law-Decree No. 7of
1970 (82).
Implications
Today,Hungary is widelyregardedas the most successfuland
prosperous countryin EasternEurope. The memory ofthepricepaid
in blood and tragedy, however, cannotbe far beneaththe surface. The
crisis twenty-five years ago sent shock waves through every sector of
Hungarian society: the workers,the peasants,the intellectuals, the
judiciary (83), the legal profession (84), and the government (85).
In 1972, the Constitutionwas revised extensively. Article
54 (1)pledges that the,Depublic shall respect humanrights. Article
54 (2)states that rights "shallbe exercised in accordancewiththe
interestsof socialist society; the exercise of rightsshall be in-
separable fromthe fulfillmentof the dutiesof citizens". Not
surprisingly, the 2onstitution refersspecifically to the consequences
of "extraordinarycircumstances" (article28). Underarticle 49, trials
are to be openexceptwhereprovidedby law, andpersonsunder criminal
proceedingsare entitledto the rightofdefence. But the mostsig-
nificantprovisionis article 31:
- 80 -
/I/The Presidiumof the HungarianPeople's Republic, in the
eventof war or dangerwhichseriously jeopardizes th'e
security of the state,may create adefence council empowered
withextraordinaryjurisdiction.
/2/The danger that seriouslyjeopardizes the securityof the
state, and the terminationthereof, shall beestablished
ond promulgatedby trePresidium.
Dr. Antalffy has pointedoutthat constitutionalismis of ahigher
order than legality (86). Yet, article 31 seriously undermines the safe-
guard of constitutionalism in several ways. The same entity that declares
the state ofemergency also defines it without any constitutional limit-
ations. "Extraordinary jurisdiction" is not defined or limited by the
Constitution. Thus, the Presidium can exercise plenary powers, suspend
legal rights wholesale, and resurrect summary jurisdiction without any
limitationwhatsoever. Article 31 enshrines the principle that basic
human rights can be revoked in time of emergency.
CZECHOSLOVAKIA
In ourcountry,human rights alwayshave aclass
and social content.
- Pud6 pravo
19 March 1977 (87)
Forme, socialismis inseparablylinked torespect
for legality. Insofaras some of myclients have
been treated as second class citizens, I Iave ob-
jected because such practices have nothing in common
withsocialism.
- JosefDanisz,
layer for Charter 77
signatories (88)
Recent history in Czechoslovakia illustrates the high Losion
between two competing, possibly irreconcilable, views of socialism.
The first view is that human rights may be granted and revoked by the
statebased on class and state interests. The secondviewis that
socialismassures certainbasicrights based on "more equitableorder-
ing of society. The latter pointof viewflourishedduring the Prague
Spring of 1968. Thencame a Soviet-led Warsaw Pact invasion inAugust,
during whichit may be said that a de facto stateof emergencyexisted.
This wjs followed by i stop-by-step retreat from liberalization, cul-
minating in a declared state of emergency a year later. In the end, it
was the first view th~it held swry.
1963: Sovereignty and the State of Emergency
Internal politicalunrest and student protests in the fall of
1967 led to the election of Alexander Dubcek as First Secretary of the
Party, succeeding the deposedNovotny (89). On 30 April, the government
declared the end of policiespermittingwiretapping andpress super-
- 81 -
vision (90). Censorshipwas totally abolishedby the endofJune (91).
The law abolishing the "CentralOffice for Poblication"passed the
National Assembly by avote of 251 to 30 (92). The actionprogramme
of the Party,published5April, called for fundamental structural
changes, including the separation and control of state power (93)
The prograrmne called specifically for stricter control over the
internal securt' forces, with "precise functions in the defence of
public order ... laid own by law and ... directed by the national
committees (94). Full independence of lawyers from the state bodies
was to be;qua ,tel e;ll a the tev cogthenin of leglity founded
on "proceedings in court .,hi are independent of political factors
and are bound only by the law" (05). The Soviets, distressed by what
they perceived AS an anti-Soviet drift in policy, Met with the
Czechoslovak Presidium in Bratisl vA on 3 Augqust, along with leaders
from Bulgari, the 0erm n D)mocratic Pepublic, 11ungary and Poland (96).
Undeterred, t w - Yo nva. 'ommur, ins t art,' publisuhed draft statutes
for sweepin reform' i6 ,'tujust (97)
.011', the r"'ht 0* 2. - 21 .',uuSt, Kozechoslovakia was invaded
by the countrie; who;e leaders had met with :ts Presidium at Bratislava.
In an extraordinar'' sessin on 28 August, the Zeclhrs;lonik National
Assembly atatedi that the occupation was contra y to international law,
the U.NU. *horter anI t he L rsAw ?reaty (9H). The International Commission
of Aurist :nndeiemneA the inovason ai; "a ruthless attempt to impose b'
brute .ilitary force pilitical, economic and military -ontrol iloa free
and sovere 1on poplp" (99). i:deed, the five leidinqn prooressive
members of the eleven-n'mber Presidium were Abdu'ted dourinj the in-
vasion and hel: sr oncr (pris).
Assessment of the emergency status of the country in the fall
of 1969 is m,e problemsatic by the compromise of national soveregnty.
Mlanifestly, adire emergency existed. A curfew was imposed the night
of 22 August in Prague from 10 p.'n. to 5 a.u., public assemblies were
banned, and the public was warned that street gatherings would be re-
garded as provocitionsO (il). Reportedly, a curfew was also imposed on
towns throughout 3lovaki,, and three towns, Kosice, Presov, and Nova
Kamenica, were placed under martial law (102). The extraordinary 14th
Party Congress wasn convened 22 August. The Interior Ministry announced
that road, rail and air link; with the outside had been cut (103).
The Czechoslovak populace resisted mainly throtugh non-violent means,
though there were riots, bloodshed and mass arrests (104). These steps
and others point to a de factostate of emergency. Some of the steps
were taken by the invading forces; other steps were clearly coerced.
The constitutional authorities were face to face with tanks and troops.
Finally, on 13 September, under Soviet pressure, a newly constituted
National Assembly introduced preventive censorship, ban:,ed the creation
of new pnlitical orq;nizationsand limited the right to public
assembly (105) .
1969: "lTe Hu.;ak Governmen::
Sporadic demonstrations and riots continued, including November
protestsresulting in 167 arrests (106). Celebrationsof avictoryof
the national hockey teamover the Soviet team turned intovirtual riots
inApril. On12 April, using the hockey riotsas apretext, full
censorshipwas reinstated (107). On 18 April, GustavHusak,whohad
replacedDublekasFirstSecretarythe daybefore, declaredthatthere
- 82 -
can be nofreedomfor thosewhomisuse freedomand democracytooppose
the state (108).
Purgesof thepress continuedfromthe fall throughthe summer;
manypublicationswere suspendedorbanned (109). In spite ofthe invasion,
the unrestwas not crushed. The government feared that tne first anniver-
saryof the invasionwould be the occasionfor majorprotestdemonbLrations.
The Husak government called out tanksand troops as ashowof force to
impress not only the populacebut perhapsalsothe Soviets (110). On 22
August,emergency statuswas instated in Czechoslovakiaby LegalMeasure
of the Presidiumof the FederalAssembly No. 99 "concerningsome provisional
measuresessential for strengtheningand protectingpublicorder" (111).
Thepreamble adverts to tile existinggrossviolationof publicorder and
cites article 58, paragraph 3 of fundamental (constitutional)
law 143/1968
as authority. That paragraph reads:
Urgent measures requiring the enactment of a Law are taken
by the Presidium of the Federal Assembly in tile form of Legal
Measures signed by the President of the Czechoslovak Socialist
Republic, the J2hairman of the Federal Assembly, and the Chair-
man of the Government of tile Czechoslovak Socialist Republic.
legal measures are promulgated in the same manner as Laws.
The followirg paragraph of article 58 require. that measures so
token b apprcvsd at the next session of the Federal Assembly.
The substaTntive provisions of Legal MIeasure 99 are far-reaching.
Section 1 sets a penalty of up to three months imprisonment and/or a fine
of 5,00Y) crowns for taking part in, inciting or supporting a violation of
public order or violating work discipline. Section 2 prescribes banish-
ment from place of residence from one to five years for section 1 crimes,
aswell as certain other anti-state crimessuch as defamationof the state
or of another WNirsaw pact state. Section 3providesthat cases maybe
decided on the basis of information provided by tle state security organs,
that those organs may detain suspects up to three weeks without trial, that
summary trials rlay be conducted with single judge courts, and that the
defence attorney may participate only during the course of the trial (112).
Section 4calls for surnary dismissal of workers who violate socialist
order and of teachers who do not inculcate respect for tile state. in
addition,students may be barred from furtherstudy. Trade unionscould
not interveneon behalfof members topreventthe applicationof these
measures. Section7declared that the measureswould takeeffectimmediately
and remain in effectuntil 31 December1969.
In the first few days of the state of emergency, the Interior
Ministry reported that 3,690persons had beendetained for questioning,
of whom 1,797 were later released (113). In addition to the measures
discussedabove, there were purgesof localgovernment bodies,widespread
interrogations and, in May 1971, amandatoryrenewal ofpartycards that
purged Party ranks by twenty percent (114). In May 1971, at the regular
FourteenthPartyCongress, HusAkdeclared thatnormalizationhad been
achieved (115).
Implications
The mostdisturbingaspectofthe 1969stateofemergencyis the
incorporationof "temporary,emergencymeasures" intopermanentpositive
- 83 -
law, LegalMeasureNo. 150 of 18December 1969"concerningtrans-
gressions" incorporates intopermanentstatutorylawmanyofthe
emergencyprovisions onviolationofsocialistorderand destruction
ofsocialistproperty (116). LegalMeasure148/1969includedother
provisions, as VladimirKusinpointsout:
Thisconcerned sentencingapersonto banishment
fromanamedplace and liability to severepunish-
mentfor suchpettyoffencesas failure to comply
withaproperlyserveddemand topreservepublic
order ... breachofpublicorder, refusal to fulfil
duties derivingfromalabourcontract (str e?)and
breach ofduty ... TheLabourCodewas simultaneously
amended by ...anewprovisionaccordingto whichan
employee couldbe dismissed "if his activitiesviolate
socialistsocial order,and he thus cannotbe trusted
...to performhis presentduties. (Thisformulation
wastakenover literally fromtheemergency legislation
of 22 August). (117).
Aformal declarationof adefenceemergency automatically
increasesthe severityofpenaltiesand lessens the burdenofproof
for anti-state crimes (118). The ultimateextensionof thispattern
is section2(2)of ConstitutionalAct No. 155 of 17 December 1969,
amendingandsupplementing chapter8of the Constitution,whichreads
inpertinentpart:
TheSupreme Courtof theCzechoslovakSocialist
Republicshall reviewthe legalityoffinaldecisions
imposingcapitalpunishment; exceptionsmay be provided
forby anActof theFederalAssemblyonlywithrespect
tomartial-lawproceedings or to judicialproceedings
inperiods ofdefenceemergency.
Eventhemostimportantsafeguardsmay besuspended inemergencypro-
ceedings. The eventsof 1969showthat thesame kindsofdrastic
steps thatwould be calledforin theeventofaforeigninvasion
will beemployedin theeventofanyperceivedthreatto socialist
order.
In the firstsevenyearsofnormalization (1969-75), itis
believed that4,718personsweresentencedforvarious political
offences (119). Thepressurehascontinuedto thepresent. Forty
peopleweredetainedin round-upsin May1980; fourteenof them
currentlyfacecharges underpenalcodeprovisionsagainstsubversive
activities (120). The invasionin1968 and thestate ofemergencyin
1969 are twoof thedarkestpagesin Czechoslovakhistory. Their
shadowremains.
- 84 -
YUGOSLAVIA
Anyarbitrary actwhichviolatesorrestricts
humanrightsshall be unconstitutional
andpunish-
able, regardless
ofwhohas committed the act.
- YugoslavConstitution,
article198.
In adecisionof 16March1977, the Constitutional
Courtof
Yugoslavia
statedthat,basedonsectionVTI, paragraph2ofthepreamble
tothe 1974Constitution,
thegenerallyrecu&'ized
normsofinternational
lawformpartofthelawof the SocialistFederalRepublicofYugosavia
(121). The Courtcitedas evidenceofbinding lawthe United,ations
Charter,the UniversalDeclaration
onHumanRights,the International
CovenantonCiviland PoliticalRights,and theHelsinkiFinal Act. In
theformal,constitutional
sense, then, Yugoslavia
has rejectedthe notion
thatrightsare pendentto duties. The non-derogable
rightsof inter-
nationallaware legallyinalienable
inYugoslavia
(122).
The 1974Constitution
allows thesuspensionofconstitutional
provisions
relating"toindividualfreedoms,
rights, andduties ofman
andthe citizen"duringastate ofwaror"ifsorequiredbythe country's
defenceinterests"
(123). The Presidency
mayeffectsuspensions
bya
decreehavingthe forceof law,but isrequiredtosubmitthedecree-law
tothe FederalAssembly "assoonas/theAssembly7is in apositionto
meet". Whenauthorizedby statuteinexceptional
circumstances,
detention
maybeorderedby an internalaffairsorganrather thanby acourtof law
(125). Under article391of the CodeofCriminal Procedure,
partieshave
the rightofappealaswell as recourseto extraordinary
legalremedies
suchas re-examination
of the judgmentor re-opening
ofproceedings
(126).
Insum,emergency derogations
are anticipated
but arelimitedby con-
stitutional
safeguards
and byYugoslavia's
incorporation
oftheCovenant
standards
ir.to domesticlaw.
Kosovo,1981
Severedisturbances
intheAutonomous
Provinceof KosovoinMay
1981were amajor testofYugoslavia's
commitment
to theruleoflaw.
Themainissue behind unrestinKosovocentres arounddemandsto upgrade
theautonomous
provincetoafullrepublic,whichwouldentailthe right
tosecedeand, presumably,
unite withAlbania. 77.4percentofthe
province's
inhabitants
areofAlbaniannationality
(127). Atleastone
personwaskilledin nationalistic
rioting inPristina,Kosovo's capital,
on 25 November 1968 (128). Between 1974and 1980, 89personsweresen-
tencedfor organizedirredentist,
nationalistic
activities
intheprovince;
40otherswentbeforecorrectional
tribunalsfor the sameoffence. Kosovo
securityservicessentanother503 persons beforecorrectional
tribunals
for irredentist,
nationalist
agitationduring the sameperiod (i'9).
On 11 March1981, about 2,000students atPrigtinaUniversity
riotedover badfood,inferiorlivingconditions
andinequality
(130).
Theprotestsdevelopedintowidespread
riots overconditions
inKosovo,
whichisthepoorestprovincein Yugoslavia.
Theworstriots occurred
1April,whenover10,000protestorsmarchedonPri tina'stownprison
andclashedwithsecurity forces (131). 75 personswerewoundedby fire-
arms and55 otherswereinjured; fourmembersofthesecurity forceswere
- 85-
woundedbyfirearmsand 127 sufferedother injuries. In addition,
accordingtoofficialYugoslavreports,eightdemonstratorsandone
p'licemanwerekilled (132). Therewereothercasualtiesbesides those
in the demonstrations. Inone reportedassaultonahouse inwhichtwo
"outlaws"were hidingwiththeirwivesandchildren,the twosuspects
andfourpolicemenwere killed (133). By thispoint,theriots had
taken ontheir separatistcharacter (134).
On2April 1981, the provincewosplacedunderastate of
emergency. Allpublicgatheringsand movementbygroupsofthree or
morepeople were bannedbypoliceorderthroughout the provinceand a
dusktodawncurfewwas imposedin Pristinaand four surrounding
towns (135). Foreignjournalistswerebanned fromthe regionuntil
18April,when theywereallowed to enterthe regiononguidedtours
(136).
1,700personswere affected bythe securitymeasures (137).
506persons hadbeen sentencedas of12June, 287 of whomwere charged
withdirectparticipationin the demonstrations; another154persons
wereontrial forcrimessuch asmembershipin clandestineorganizations
(138). TheUniversitywas closed tendays earlybecause ofrenewed
protests (139). Inthe twomonthsfollowingthedeclarationofastate
ofemergency,442 personswereexpelledfromtheparty (140), 109 teachers
andprofessorslost theirjobs, and280highschool studentswere
expelledfromschool (141). The trials andthe unresthavecontinued;
typicalsentences rangefromtwo toeight years 142). Over400ethnic
Albanianshave beensentenced toprisonandanother100 await trial; in
addition,the YugoslavFederalGovernment has reported,1,200persons
have receivedlight sentencesfordisturbing thepeace (143). Over
50,000Serbshave fled theprovince inthelastdecade, and theexodus
hasintensified since theApril 1981riots (144).
TheCentralCommittee has statedthattheemergencymeasureswere
indispensable (145). Itplacedtheblame for thedisturbanceonweak-
nesses withintheParty structure aswell ason thepro-Albanianirre-
dentistmovement,andemphasized theimportanceofacceleratingdevelop-
mentinthe Kosovoregion (146). Toavert similarserious emergencies,
withtheir attendantdangers for thestate and the individual,concerted
effortsto address the underlyingeconomiccauses forunrestare
essential.
POLAND
NoPolishproblemcanin the longrun
besolvedby force.
- Gen.WojciechJaruzelski (147)
The statesofemergencyimposedinPolandinthepasttwo
decadesdemonstrate the limitationsanddangersofthe stateofemer-
gency inEasternEurope. Thefirstmajordisturbancesoccurred28
June1956,whenworkerprotestsoverpoor livingconditionsled to
threedaysofriotinginPoznan (148). Troops andtankswereused
against the crowds,and acurfewwasimposed (149). Over200
personswerearrested; atleast 54 personswerekilledandover200
werewounded (150). The governmentattemptedtoconvert thisdefacto,
temporarystateofemergencyinto afull-scaleemergency,not byofficial
- 86 -
legislation
through the Sejm, butbyusingthe judiciary.
Three months
later,during theopentrialsofthose arrestedduring theemergency,
the
government
prosecutors
askedthe courts toapplyemergencyprovisions
enactedduringthe periodimmediately
followingWorldWar II. The pro-
visionswouldhaveautomatically
increasedall prison termsand couldhave
madesomesubjectto the deathpenalty.
The courts,however,balked at
the proposedjudicialstate ofemergency,
and appliedordinarycriminal
statutes (151). Theemerqencyresultedultimately
in achangeofgovern-
mentleadership
and atemporary liberalization
(152).
Studentprotests atWirsawUniversity
in1968culminated
in
majorriots. About4,000students clashedwith 500policeoverthe iss'ie
ofcensorship
(153). Thestudents failedto gainthe supportof the
workers. Unrest amongthepopulace continued,
however,until price
increases
inDecember1970 setoff wide-scale
rioting,beginning
inGdansk.
The government
later acknowledged
that atotal of45 personswerekilled
and 1,165 wounded (154). On17December,
PremierJosefCyrankiewicz
issuedacommuniqu6
specifying
emergencymeasures,
includingtheauthoriza-
tion touse weapons againstrioters,approved bythe CouncilofMinisters
(155). Theauthority
for thisstate ofemergency
was ,-rticle32, section 7
ofthe revised 1952Constitution
(156). The Council's
rccolution
was in
effectthroughout
the country.
GdanskandSzczecinwere placedundera
dusk-to-dawn
curfew; publicmeetingswerebannedandrail and air traffic
were halted (157). TheCouncil's
orderswererescindedsixdayslater (158)
and the curfewinGdanskwas lifted 23 December (159). Thegovernment
leadership
was re-organized
andeonomic aidmeasures wereannouncedas a
resultofthe protests (160). A onumenttotheslainworkersnowstands
inGdansk.
Priceincreases
againsparkedprotests in 1976. Accordingto
Polishtelevision
broadcasts,
twodemonstrators
werekilledand 75police
injured in streetrioting.
Thepriceincreases
wererescindedby the
government
(161).
MartialLaw,1981 - 82
The imposition
ofmartiallawatmidnight,
12 - 13 December1981,
was anauthoritarian
responsetotwoyearsofsocialunrestinPoland.
Demandsby theworkersand intellectuals
for labourreformhad ledto
the recognition
by thegoverrment
oftheworkers'right tostrikein the
GdanskAgreementof 31August 1981 (162). Unrestcontinued,
exacerbated
bymismanagement
of the economy; theworkers,throughthe labourorganization,
Solidarity,
demandednot onlycc-determination
inthe workplace,
butalso
avoiceinthepolitical
controlofthe government
(163). Polandhad
amassed adebt to theWestofover26billiondollars (U.S.) by1981.
Facedwithamountingsocial,political
andeconomiccrisis,theCouncil
ofStatedeclaredanunprecedelnted
"stanwojenny" (stateofwary.
TheCouncilcreateda"MilitaryCouncilfor NationalSalvation"
andsuspended
the operationof all tradeunions; majorindustries,
includingcoalmining,wereplacedundermilitary control.
A10 p.m.
to 6a.m.curfewwasenforcedbysoldiers andsecurityforcepersonnel
bearingautomaticweapons.
Transportation
was limited;communications,
includingtelephone
and telex,werecut,andcensbrship
- 87
was reinstated. Allpublicassembly, exceptfor churchgatherings,was
banned. Preventivedetentionwasauthorized for anyonewhosebehaviour
aroused "suspicionsthat ...theywillconductactivitythreateningthe
securityof thestate" (165). The rightto strikeorprotestwas sus-
pended. Summarycourtprocedureswere instituted,withminimumpenalties
ofthree yearsand no right to appeal (166).
Inareportto theSejmCommission for InternalAffairs and the
AdministrationofJustice,BoguslawStachura,the DeputyMinisterfor
InternalAffairs, acknowledged that17 personshadbeenkilled in the
first fewdaysofmartial l,-%r -- eightat theWujek coalmineand nine
in Gdansk (167). On25 January 1982, in an address to the firstsession
ofthe Sejmheldaftet the declaration ofMartial law,GeneralJaruzelski
statedthat 4,549 internees were beingheld at that timein jailsor
special centres,and 1,760personshad been released (168).
Mostmajorfightinghad been suppressedwithinaweekof
the declaration. Majordisturbances brokeout sporadicallythere-
after, notablyin Poznan (169), Gdansk (170), andWarsaw (171).
InApril, the rector ofWarsawUniversitywas ousted (172). The
mostserious riotsoccurred31 August 1982,on the anniversaryof
the signingof theGdanskagreementbetweenSolidarity and the
government.
LegalImplications
Theadoptionofthe 1976 versionof the PolishConstitution
generated intense legaldebatewithinPoland. The Constitution's
draftersintended to insertaprovisionexplicitly linkingindividual
civil and politicalrightswiththe fulfillmentofdutiesto the state.
Becauseof the implicationthat allindividualrightscould beabrogated
onthepretext thatacertaindutywasnot fulfilled,the provisionwas
finallyeliminated (174). Theprinciplehas beenresurrected,however,
under the regimeof martiallaw.
ThenewConstitutionconcentrates agreatdeal ofpowerinthe
handsofthe CouncilofState. Amongthepowers enumeratedinarticle
30are:
- callingelectionsand conveningsessionsofthe Sejm
(Parliament)
- overseeing theconstitutionality oflaws
- determiningauniversallybindinginterpretationof
laws
- issuingdecreeshaving the forceof law
- ratifyinganddenouncing internationaltreaties.
Thesamearticlespecifies,however, thattheCouncil "is accountable
irallits activities to the Sejm". Furthermore,decree-laws issuedin
periods betweensessionsofthe Sejmmustbe submittedtotheSejmfor
approvalat the nearestsession (article31). The Council'spowerover
the judiciaryinoverseeingconstitutionalityandinterpretingthe laws
isreinforcedbyarticle60,wherebyjudges andlay assessorsare
appointedand recalledbytheCouncil (175). Article61 allowsthe
- 88-
Counciltoappointand ecallmembersoftheSupremeCourt. Finally,the
CouncilofStateis empoweredtoproclaimpartialorgeneralmobilisation
or "martiallawonpartoron the wholeofthe territoryofthe Polish
People'sRepublic,if this isnecessitatedby considerationsofthe
defenceor securityofthestate" (article33, section 2).
TheSejmhadbeenscheduled tomeetthe weekaftermartiallaw
wasproclaimed. TheCouncil'sdecreeswere unconstitutional,because
technically theSejmwasin session; the CouncilofState isempowered
to issuedecreesonlywhen the Sejmisnotinsession. The Chairmanof
theSejmjudiciarycommittee,Mr.WitoldZakrzewski,stated thatdespite
the factthatthe Sejmwas insession, theCouncilpassed thedecrees "for
reasonsof higher necessity" (176). Anygovernment wishingto ignore
explicitprovisionsof its ownconstitution could.dosoat will by
invokingthe disingenuousprincipleof "higher necessity". Theprinciple
isoffensiveto theconcept of theruleoflaw: ifsocialistlegalityis
subjecttounilateralabrogationby the state,then the termisdevoidof
meaning.
Undermartial law,summaryproceedings are heldnotbefore ordinary
courtsof firstinstancecomposedofonejudge and twopeople'sassessors,
butbefore thevoivodshipcourts, or courtsmartial, composedofthree pro-
fessionaljudges (177). The lay assessorsare acherishedinstitutionin
socialistlegal theory. AsProfessorStanislawWalt6shaswritten,the
institutionof layassessorsprovides insight, injects theelementofcitizen
participation (thelopularwill) and heightens the courtssenseofautonomy
(178). The removaloftheparticipationoflay assessorsinthe administra-
tionofjusticeundermartiallawhas beenlittle noticedin theWest,but
accordingto socialistlegaltheory, the removalwillsignificantlydegrade
thequalityofjustice.
The Polish Government notified the Secretary-General of the United
Nations ofits derogationsfromtheInternationalCovenantonCiviland
Political Pights, towhichPolandisparty,on 14December 1981. TheGovern-
menthasnot compliedfullywith theCovenant,despiteits fulfilmentofthis
technical requirement.
Itst.-ted that"therehas beenatemporaryderogationfromorlimit-
ationof applicationofarticles9,12, paras.1and2,14, para.5,19,
para. 2,21 and 22 ofthe Covenant,tothe extentstrictlyrequiredbythe
exigenciesofthe situation". Itsaid thatthe decreeof theCouncil of
State onmartial lawand otherdecrees givingrise to the derogationhadbeen
approvedbythediet/Sejmand that "temporarylimitationofcertainrights
ofcitizenshadbeen actuatedbythe supremenationalinterest. Itwas
causedby the exigencies ofavertingacivil war,economicanarchy,as well
asdestabilisationofstate and socialstructures. The purposeofthemeas-
ures thusintroducedhas beento reverse an exceptionallyseriouspublic
emergencythreateningthe life ofthenationandtocreat:'- conditionsfor
aneffectiveprotectionofPoland'ssovereignty and independence".
Thisisprobablythemostdetailednoticeofderogationgivenby
any statepartytothe Covenant. Nevertheless,itmaybequestionedwhether
some ofthederogations,suchas the suspensionofthe rightofappealunder
article 14 (5), wasstrictlyrequiredby the exigenciesofthesituation,and
the verysummaryprocedures adoptedhardlygave anaccusedperson"adequate
timeand facilitiesfor the preparationofhis defenceand tocommunicate
withcounselofhisown choosing",as requiredbyarticle14 (3)(b) fromwhich
noderogationwasmade.
- 89 -
Conclusion
By the time the Sejmconvenedon 25 January 1982, martiallaw
was afait accompliand 17 persons haddied. Thedeclarationitself
was in violationof the Constitutionandundermined the legitimacyof
martial law. The Sejmhadbeen effectivelydeprivedof its legitimate
law-makingrole, and was thus weakenedas aninstitution. Whenthe
basis ofastate'sauthority is weakened, thestate's most likely
recourse is to coercive force. Martial lawhas providedstabilityin
the shortrunatgreatcost to the state in terms of theperceptionof
the government'slegitimacyand trust in the basicstructu:eof the
judiciary, legislature, andthe CouncilofState.
GENERALCONCLUSIONS
The InternationalCovenantonCivil and PoliticalRightshas
been ratifiedbyevery EasternEuropeanstate (exceptAlbania)andthe
SovietUnion. Theseratifications are indicativeofat leastaformal
commitment totherule of law. Yugoslavia has judicially incorporated
thestandardsofthe Covenantintodomesticlaw; in thisrespect, it is one
ofthe leadingcountriesin the world,althoughitis facedwitha
serious economiccrisisin Kosovo. The Covenantis genuinelymeaning-
ful onlywhen t!.c Stu-SParties recognise its standardsas binding
elementsofthe legalframework. The stateofemergency canonly be
atemporarystep; it cannotanswer the need for structural reform.
StatesofemergencyinEasternEuropehavenot conformedtoone
model; they haveranged fromfullmartial law to "crackdowns"-- con-
certedgovernmentactions to suppress theexerciseof fundamentalrights,
withoutaformallyrecognizedsuspensionof prevailinglegal norms.
Itis afeatureof socialistlaw that there is no provisionfor
"preventive"or administrativedetentionexceptunderstates ofemergency.
Inpractice, this is nohandicapto thegovernments instifling
expressionsofopposition,since their lawscontain awholerange of
vaguecriminaloffencesof apoliticalnature suchas "anti-Soviet
propaganda"and "anti-stateactivities", underwhich theycanprosecute,
condemn and imprisonanycritics ofthe state,its lawsorthe
administration. Consequently, the "crackdowns"all takeplacestrictly
within aframeworkof "Sovietlegality". The mostcommonformofstate
ofemergency, as in the 1970 Polishcrisis, is the impositionof
"emergencymeasures"by the rulingpoliticalelite. Martial law in
Poland today,however,maybe aharbinger ofanemergentpattern. The
MilitaryCouncil thatnowgoverns withvirtuallynolimitationsis not
providedfor inthe PolishConstitution. It is, however,quitesimilar
to the "defencecouncil"specifiedin article31 of theHungarianCon-
stitution. Thatcouncil, like the militarycouncil inPoland today,
is tobe "empoweredwithextraordinaryjurisdiction". The jurisdiction
is not in any waydefined.
Anurgentlyneededstepin the developmentofsocialistleqality
is thatofspecificlimitationsonthepowerof thestatearbitrarily
to deprivecitizensofconstitutionaland internationalrightsduring
timesofcrisis. The non-derogablerightsoftheCovenantshouldbe
specificallyprotectedbydomestic law,regardlessof thesupposed
linkagebetweenrightsandduties. Finally, legislativeand judicial
proceduresshouldbespecifiedtoguaranteethatany derogationsdonot
exceedthestrictrequirementsof the emergency. Suchsteps wouldrepre-
sentimportantadditionalprogress in thedevelopmentofsocialistlegality.
FOOTNOTES
(1) A.Makhnenko,THESTATELAWOF THESOCIALISTCOUNTRIES202-03
(1976).
(2) Thelinkage is emphasized in articles 39 and 59of the Soviet
Constitution.
See 1.SZABO, THE SOCIALISTCONCEPTOFHUMAN
RIGHTS 79-81 (1966); Berezovskaya, Zakonnost'-Nepremennoe
uslovie
stroitel'stva sotsiilizma, in PROKUROSKI NADZOR V EVROPEJS}IKH
SOTSIALISTICHESKIKH
STFANAKH 15-16 (1981) ; Markovits, Law or
Order-Constitutionalism
and Legality in Eastern Europe, 34 STAN.
L. REV. 513 (1982) ; Osakwe, Soviet Human Rights Law Under the
USSRConstitutionof 1977: Theories, Realities andTrends,56
TUL.L.REV. 249, 264 (1981) (hereinaftercited as USSR Human
Rights). See generally, P.DAVID &J. BRIERLY,MAJORLEGAL
SYSTE.IS IN illE WORLD TODAY 193-207 (1981). The concept has been
accepted in varyingdegrees inmostof EuropeanEurope. See infra
notes 159-60and accompanying text. The term "Eastern Europe" is
used in its general sense to refer to the socialist countries of
Centraland Eastern Europeand theUSSR.
(3) "Thesocialist sovereigntyof each fraternal country actually
includes the rightand international duty ...todefend the
dictatorshipof theproletariat ...in any other countrybelonging
to the socialistsystem." E.Gormanmarxist,HerbertKroeger,
Voploshchenieidei Leninizma, 1970Mezhdunarodnaya
Zhizn'No. 3,
115, quotedin W.KULSKI,TIlE SOVIETUNIONINWORLDAFFAIRS 316
(1973). See alsoF. KOZHEVNIKOV, MEZHDUNARODNOE
PRAVO 66 (4th
rev.ed. 1981). But seeTyranowski,The WarsawTreaty, 4POLISH
Y.B. INT'L L.101, 105, 112 (1971) (the onlyjustificationfor
armed interferenceby afellowWarsawPact state isresponse to
arme attackbyan outside aggressor);V. LENIN,THERIGHTOF
NATIONS TOSELF-DETERMINATION
7-16 (Progress1979).
(4) UnlesE otherwisenoted, the socialistconstitutionswillbe cited
to the English translations in THECONSTITUTIONSOFTHECOMMUNIST
WORLD (W.Simons, ed. 1980).
(5) On thestate of emergencyin EastBerlinon17 June1953, see
P.KECSKEMETI,THE UNEXPECTEDREVOLUTION 128-29 (1961).
The SovietUnion
(5a) Leninquoted in I.Lapenna,SovietPenal Pol.cy43 (1968).
(5b) Id. at 45-46.
(6) Id. at46. Cf. InternationalCovenantonCivilandPolitical
Rights, 16 December1966, article 4,section3,G.A.Res. 2000A,
21 U.N.GAOR,Supp. (No.16) 52, U.N.Doc.A/6316 (1966).
(7) Osakwe,Due ProcessofLawUnderContemporarySovietCriminal
Procedure. 50Tul. Rev. 266 . (1976).
(8) Sud ipravosudie vSSSR109-110 (A.Bazhanoved. 1980)
(hereinaftercited as Sud).
(9) Berman,H.,Justice in theUSSR,29-32 (reviseded. 1963); Juviler,
P., RevolutionaryLawandOrder22-27 (1976);Makepeace,R.,
MarxistIdeology andSovietCriminalLaw74-75 (1980);Hazard,
SovietSocialismandDue ProcessofLaw,48 Mich.L.Rev. 1061,
1076-77 (1950) (hereinaftercited asSovietDueProcess).
(10) Juviler,supra note 9,at20.
(11) Id. at 27.
(12) Osakwe, supranote 7,at267.
- 91 -
(13) I.Szabo,SocialistConcept of Human Rights13-14 (1966).
See alsoJ.Hazard, CommunistsandTheirLaw 418 (1969).
(14) Hazard, id. at '220; Berman,supra note 9,at 33-37; Makepeace,
supranote 9,at 94-135.
(15) Osakwe, sunra note 7,at 269.
(16) "A wealthy peasant who exploits the work of others.",
A. Smirnitsky (ed.), Russian-English Dictionary (1973).
(17) See Berman, supra note 9, at 33-65; Juviler, supra note 9,
at Ch. 3.
(18) Juvilev, supra note ), at 48.
(19) Decree of 10 July 1934, Sobranie ZakonovSSSP, 1934, 1,
No. 36, article 283; Decree of 5 November 1934, Sobranie
ZakonovSSSR, 1935, I,No. 11, article 84. See SovietDue
Process, supra note 9, at 1062-64.
(20) Hazard, The Puture of Soviet Law, 8 Sydney L. Rev. 590,
592 (1971) (hereinafter cited as Future).
(21) J. Hazard,The SovietSystem of Government77 (5th rev.ed.
1980).
(22) Juviler at59.
(23) Id.
(24) L.Kuper,Genocide 25-29,141-150 (1981).
(25) Edictof the Presidiumof the St.preme Soviet,22 June 1941,
VedomostiVerkhovnogoSoveta, 1941, No. 20, section3(h);
translated in 11.Berman &M.Kerner, DocumentsonSovietHili-
tary Law andAdministration 133-34 (1955). See generally,
H.Berman&M. Kerner,SOVIETMILITARYLAWANDADMINISTRATION
(1955).
(26) Id. section7at 134-35.
(27) Id. section9at 135.
(28) Edictof the Presidiumof theSupreme Soviet,15 April 1943,
Vedomosti, 1943, No. 15; translatedin Berman&Kerner,supra
note 25, at 140.
(29) Edictof 15 April1943, id. atsection 6; Berman&Kerner,
supranote 25, at 139.
(30) Edictof the Presidiumof the Supreme Soviet,9May 1943,
Vedomosti, 1943, No. 18; translatedin Berman&Kerner,supra
note 25, at 140.
(31) Edictof the Presidiumof the Supreme Soviet,21 September
1945,Vedomosti, 1945, No. 71; translatedinBerman&Kerner,
supranote 25, at 140.
(32) On the Repeal of the Edictof thePresidiumof theSupreme
Sovietof theUSSR"Onthe DeclarationofMartialLaw in
IndividualLocalitiesof the USSR", 4July 1946, Collection of
Laws of the ITSSR and of theEdictsof the Presidiumof the
SupremeSovietoftheUSSR,1945-46, at180; translatedin
Berman&Kerner, supranote 25, at 141.
(33) SovietDueProcess, supranote 9,at 1076.
- 92 -
(34) Future, supra note 20, at 54. See generally, Berman,supra note
9,at 66.
(35) See Lapenna, supranote 4,at 53.
(36) Id. it 49.
(37) Id.
(38) Lawof the USSRof 25 December 1958, on theApprovalof the
Fandimentals
of Legislation on the JudicialSystemof the USSR,
the Union and Autonomous Republics; extracts translated in
Fundimentals of Legislation of the USSR and Union Republics 136
(1974). For etern reaction at the time of the reforms, see G.
Hoffman (ed.) , Recent SovietTrendt. (1956)
(39) Vedomosti, 1957, No. 4, at 86. See Sud, s;utr'r note 8, at 133.
(40) Vedomosti, 1959, No. 1, it 141. See ud, sunra note 8, at 133.
On the reforms in geeneral, see Jiviler, supra note 9, at 64-122.
(41) L. I. Brezhnev, Seport to the Plenum of the C'entral Committee
of the CPSI!, 24 IRay 1977, l'.!ver;til, 15 June 1977; translated in
Feldhrugge, 'The consititutions of the USSRand the Union Republics
192 (1979).
(42) On the 1977 (Hrezhnev) Constitution,
see R.. Sharlet, The Soviet
UnionSinceStalin 93-l(_,7 (1989) ; New USSR Draft Constitution,
18 ICJ Rev. 29 (1977).
(43) Lawof the USSR of 25 December 195H, is am,nded 21 February 1968,
6 July 1970, 12 August 1971, 26 November 11)73; translated in
W. Butler, The Soviet Legal System (1978). Kmnthe military tri-
bunals in qeneral, see Sud, supra note8,at 182-191.
(44) H.Berman,SovietCriminal Law and Procedure 97 (1972).
(45) RSFSRCriminal Code, art. 70. See Pomorski, Communists and
TheirCriminal Law, 7(No. 1)Rev.Socialist L.7,13 (1981);
Comment,HumanPiqhts in the SovietUnion,29 De Paul L.Rev.
819, 855 (1980) (hereinafter
citedas Comment,HumanRights).
(46) RSFSRCriminalCode, articie 206. See Pomorski, suora note 45,
at 13; Comment, HumanRights, supra note at 857.
(47) RSFSRCriminal Code, article 209. SeeIakepeace, supra note 9,
at 249-57; Pormorski, supra note 45, at 13; Comment,HumanPights,
supra note45, at 856. Documents onAnti-Parasite
Laws have
been collected in L.Lipson &V.Chalidze, PapersonSovietLaw
188 (1977).
(48) See Amnesty Int'l Press Release, 21January 1981, reprinted in
(No.41) AChronicleof Human Rights in the USSR 5 (1981). For
an overviewof the criminal justicesystem, see M.Bussionni,S.
V.Savitst (eCd.), TheCriminalJustice Systemof theUSSR (1979).
(49) There are an estimated 12,000political prisoners in theUSSR,
mostlyactivists ofvarious nationalminorities.
18 ICJ Rev.
29, 31 (1977). For an excellentoverview,see Comment,Human
Rights, supra note 45, at 819-68and sourcescited therein.
(50) Pomorski, supra note 45, at 13.
(51) Id.
(52) Yeo,Psychiatry, theLaw and Dissentin the SovietUnion,17 ICJ
Review11, 35 (1976).
- 93 -
(53) Koryagin,InvoluntaryPatients in SovietPsychiatric Hospitals,
26 ICJ Review 19, 54 (1981).
(54) Id. at 52.
(55) Id. In abock reviewof F.Feldbrugge,The Constitutionof the
USSRand the Union Republics (1979), Yuri Luryi points out the
coining of the term " ongressophrenia" (s"Czdofrenia) by
Professor A. S. ,senin-Volpin to describe the "illness" that
breaks out during the pairty congreses. 7 Rev. Sociilist L.
83, 85 (1981). See also USSR Humarn Rights, supra note 2, at
284-287.
Hungary
(56) G.Antalff-,, "Thir ,' Years State ant Power in the 11ungarian
People's Republic", inHungarian L,'wyers Association,Develop-
ment of the Political and Legal System c the Hungarian People's
Republic in the Past 3o Years 9,35 (1975) (hereinaftercited as
Development;.
(57) T.Lukacs, "Thirty Years of Judicature in Hungary", in Develop-
ment, Id. at 153, 1'0 (1975).
(58) Peaslee, II Constitutionsof Nations 162 (1950).
(59) Peaslee, II Constitutionsof 'Iations185 (2d rev. ed. 1956).
(60) Lukacs, supra note 57, at 159.
(61) See T. Aczel (ed.), Ten Years After: The Hungarian Revolution
in the Perspectiveof History, 233-253 (1966); P. Bezushko,
Konsolidatsiya revolutsionnykhsil istroitel'stvosotsializma
vVengrii f5-108 (1971); C. Ronay, "Hungary", in A.Blaustein
&G. Flanz,Constitutionsof the CountriesoftheWorld, 26-51
(1976) (hereinaftercited as Blaustein).
(62) Id.; NewYork Times, 24 October 1956, at 2,col. 1.
(63) NewYork Times,id.
(64) Hungaryofficially becameamember of theWarsawPact.14
December 1955.
(65) Milestones ofSovietForeignPolicy 1917-1967, 168 (Moscow,
1967).
(66) On23 November,he wasabducted fromthe Yugoslavembassyand
was hangedwithout legalappeal, on 17June 1958. See Blaustein,
s"2ra note 61, at 37.
(67) Antalffy,supra note 56, at 29.
(68) The InternationalCommissionof Juristspublished threestudies
of thesituation. The Hungarian Situationand theRule of
Law (1957) (hereinafterRepcrtI); The ContinuingChallengeof
the HungarianSituationto the Rule ofLaw (1957) (hereinafter
ReportII); JusticeinHungary Today (1958) (hereinafterReport
III).
(69) MagyarKSczl6ny, No. 93, 12 November 1956, 568; reprinted in
ReportIat 68. See alsoReport Iat 14-17.
(70) Decree havingthe forceof law (hereinafterDecree-Law)No.28
of 1956of thePresidential Councilof the People'sRepublic,
Magyar;'6sl6ny, No.100, 11 December 1956; reprintedin Report I
at 69.
- 94 -
(71) Decree-Law No. 32 of 1956of the PresidentialCouncil of the People's
Republic; reprinted in Report I at 71.
(72) Decree Nlo. 6.'1956 (XI1.11) of the Hungarian .orker-Peasant Govern-
ment Concerninq the Detailed Rules of Summary .Jrisdictin Magyar
K6zlbny, No. 102, 13 December 1956; reprinted in Report Iat 72.
(73) Article 4. of Dece,-I.Aw No. 25'1956, supra note 70. Se aLso Lukacs
at 160.
(74) Decree-LAw of the !'re:;idintial Council of the People's Republic
Requlating the Pr o ire of Sunmary ':'rils, article 2, epszabadsag,
13 January 1157, 1; r.-print..d in Report I it. F3, 84.
(75) Magyar ::3;Wl6n', No. i 2,13 December 1956; reprinted in Report I
at 77.
(76) Decree Co. 1 lq5 (1. 13) *oncerninq the Tarryinq into Force of
Decree-Law; N;.31 of 1956 .and ;o. I of 1957 Dealing with Public
Security :)eterntion, ,l-'.r . l6ny, No. 4, 13 January 1957; reprinted
in Report at 7.
(77) New York Tiw;,14 .':Oril 1957, at 23, col. 4.
(78) Decree-Low No. 62 of 1957 of the Presidium of the Hungarian People's
Republic Concerninq the Abolishing of Summary Jurisdiction, Magyar
KzlWny, W:o. 117, 3 ,ovember 1957; reprinted in Report III, app. V.
(79) 'The people's tribunal.n were gradually dissolved. Lukacs at 160.
(80) Blaustein, supri note 61, :iungary at 42.
(81) Id. at 42-43.
(82) Id. at 45.
(83) Dr. Gyula Szenasi, Supreme PublicProsecutor,stated thatjudicial
officia., whodo not carvy out the wishesofthe government "try to
dreamof the judge's independence, of impartiality, though eventhey
knowtoo well that suchdreamsdo not exist". Magyarorszag,27 March
1957, auoted in Report IIat 5.
(84) On the suspension of the autonomy of theChambersof Lawyersof
Budapestand Misolc, see Report III, ap.. VI.
(85) The Constitutionwas amended by Edict*4o. 33/1956of thePresidium,
aprima facieviolationof article 20 (4)of the Constitution. See
Simons at 192, Blaustein at 40. Overall propertydamagewas
estimated to be22 billion forints. Antalffy, supra note56, at 30.
(86) Antalffy, supra note 56, at 35.
Czechoslovakia
(67) Int'l Committee for theSupportof Charter 77, White Paperon
Czechoslovakia264 (1977). (Hereinaftercited asWite Paper).
(88) WilberforceCouncil, PragueWIinter 13 (1980). baniszwas disbarred
and imprisoned in connectionwith his activitieson behalfofhis
clients.
(89) Blaustein,supra note61, Czechoslovakia,at 17-29. See alsoThe
CzechBlackBook (R.Littel, ed., 1969); Z.Suda, TheCzechoslovak
SocialistRepublic (1969); I.Svitak,TheCzechoslovak Experiment
1968-1969 (1971).
(90) Blaustein, id.
- 95 -
(91) LondonTimes, 28 June 1968, 8:1.
(92) Reimposition of cnsorship in Czechoslovakia, ICJ Review No. 3,
7 (1969) (hereinafter cited as Reimposition).
(93) Reprinted in Winter in Pro ue 88, 91, 110 (R. Remington, ed.,
1969).
(94) Id. it 111.
(95) I. at 111-12.
(96) l1.u;teir, supra note 61, Ozechoslovakia at 20.
(97) %'.errinte !in Winter in Praque, supra note 93, at 265.
(98) PlRaustein, srupra note 61, ::echo-lovakia at 21.
(99) Lonjon Tlm.-;, Auqa0t Se:. t Iso On Soviut-
22 1969, -ee Pavlov,
Cec1oIlo.,Ik F-l,,itions (1969), It' Affairs No. 7, 59, 60
("The de.',!oer-ent of 1,i t ion- between the Soviet Union and
Soc i.*it ce'a<hO. 'V.d: i a haa be o:,0 real ly. all-embracing")'
WhUtton, 'i-e !.eqi! for Soviet :!ilitary Presence in
.eech'lvaki , 47 POa.L' J0 Iroit international de sciences
diplom.iti ues eto itNiue No. 4, 299 (1969)
(100) lIondon Time ;, 22 Au'gu'-,t 1968, 1:4.
(i1 ) London Tim,..s, 23 Augp st 1960, 1:5.
(102) Id. at 1:3.
(103) London Times, 22 August 1968, 1:3.
(104) P. 'W':indsor F ,{. Roberts,Czechoslovakia 1968 111-31 (1969);
London Times, 23 August 1968, 1:4.
(105) Sbirka Zakonu Nos. 126, 127 & 129ze dne 13 zari 1968. See
alsoBlaustein,Czechoslovakiaat 21; LondonTimes, 14
September 1968, 1:1.
(106) London Tiiies, )November 1968, 5:1.
(107) (1969) IC7J ReviewNo. 3,5.
(108) Blaustein, supranote 61, Czechoslovakia at 23.
(109) See Reimposition,supra note 92, at 5.
(110) Itwas widely believed that if flusak didnot act, theSoviets
would.
(111) Sbirka zakonu 99, 22, srpna 1969, onekterychprechodnych
opatrenichnutnych kupevneni aochraneverejnehoporadka.
(112) Seealso Taborsky,Czechoslovahia: The Return to "Normalcy",
19 1roblems of Communism 31, 34 (November 1970).
(113) LondonTime.;, 26 August 1969, 4:7.
(114) E. Keefe, Area Handbook for Czechoslovakia 127-28 (1972).
(115) Id. at 129.
(116) Compare, for example, the similar wording of section1of
99/1969andsection 6of 150/1969. Sbirka zakonu 150, 18
prosince 1969, opre6inech.
(117) V. Kusin,FromDubcektoCharter77, 111 (1978).
- 96-
(118) See,eg., CzechoslovakPenal Codesection 200, Sbirkazakonu
113/1973.
(119) WhitePaper, s note 87, at 243-44.
(120) NewYorkTimes, 21 September1981, Al3:1.
Yugoslavia
(121) Decisionpublished in Politika, 25 March 1977. Seediscussion
in 'laqarahevic, The Generally Recognized Norms of International
Law in the Practice of the Constitutional Court of Yugoslavia,
27 Jugoslovenska revija za medunarodro pravo 12 (1980).
(122) On the ConstitutionilCourt, ,,(,rup,'e, Onstitutional ourts,
20 Yugoslav S;urvey :o. 4, 57, 62 (1979).
(123) Article 317, pari. 2. See Yuqo lavi':i; report under Covenant
article40, U: Doc. 2CPH.C,/1 Add.23, 14 Mar,_hi 197H, at 8 (here-
inafter citie ii; s Covenarkt Peport).
(124) Article 317, para. 1. Sep the general prevision it article 338.
(125) Coveniant "'eport, supra note 123, it 10.
(126) See id. At ,;Surmary Recor1 ot 98t Human :ights>ormittee
Merting, U W. o 'T '''9 9, 31 July 1978, at:3.
(127) Raicevic, U1cmu3e smis.ao parole ".'o;ovo republika", 24
sociiliam 893, 1il(191).
(128) NewYorkTimes, 30 November 198,at 43, col. 3. In Juneof the
sameyear, the qvormnent temporari ly bianed public parades and
demonstrations in Helgride in -onnection ,;ithstuderit riots in
the national capital. New, York Times, 5June 1963, at 4,col. 4.
(129) Les Avinements en PSA Au Kossovo,Documentation de la Revue de
politique inter:i.,tionale 14 (Belgrade 1981) (hereinaftercited as
Kosovo e.'nti).
(130) W.ishinqton Post, 3 Ai:ril1 081, at 7, col. 1.
(131) Il.; Le.ho nie, 21 April 19HI,at 3,col. 3.
(13?) Kos.oEvents, supra nto 129, it 16.
(133) Ii . Acz'orlinq to the official version,the four policemen
(Miltti) wormkilled due to their not using means that would
imperil t te wimer ani child!rei.
(134) Speech by Faoilj o.inai in Documentat ion, Review of International
Affairs 13, 14 (5 April 1981). But see Albabia's perspective of
the events leig ep to the protests in Albanie Aujourd'nui No. 3,
12-35 198).
(135) oashinritn% Post, 3April 10,1, at 7,col.1; NewYorkTimes,
4 April 18I, 4:3 he M nod,,21 April 1981, at 3, col. 3.
(136) New Yark !imams, 2 1 April 1981, at 2, col. 3.
(137) i'e '!nid.., 12 Tne 1Icj1
(138) Id.
(139) internition. lHerald Tribune, 5 June 1981.
(140) Le Monde, 6 June r)81.
(141) International Herald Tribune, 5June 1981.
- 97 -
(142) InternationalHeraldTribune (Zurich), 10August
1981, at 1,col. 1; Nedjeljni vjesnik,August1981,
Week2,at 20,col. 1(Convictionund- CriminalCodeart. 114).
(143) Times (London), 1April 1982, at 5,col. 8.
(144) StatementofVukasii,Jokanovic,anexecutive secretaryof the
KosovoCommunistParty.NewYorkTimes, 12July 1982, at4,
col. 1.
(145) KosovoEvents,supra note 129, at31.
(146) Id. at 32. Mahmut Bakali,headof the CommunistPartyof
Kosovo,resignedin thebeginningofMay. NewYorkTimes,7
May 1981, at5,col. 5.
Poland
(147) Address to the PolishPeople overPolish television,6.00a.m.
local time,13 December1981. ReprintedinKeesing'sCon-
temporaryArchives, 26March 1982, at 31394; Pravda, 14 December
1981; MoscowNews, 20December1981, at fsupp.) 6.
(148) See NewYorkTimes, 18December 1970, at 8,col. 2.
(149) Confirmedby RadioWarsaw. NewYorkTimes, 30June1956,at
3,col. 1. The curfewwas lifted less than aweeklater. New
YorkTimes, 3July1956, at 1,col. 6.
(150) See NewYorkTimes, 18 December 1980,at8, col. 2.
(151) NewYorkTimes Magazine, 14 October1956, at 11.
(152) J. Hazard,Communists andTheirLaw424 (1969).
(153) See NewYorkTimes, 11 March1968, at 3,col. 5.
(154) A.Groth,People'sPoland 75 (1972).
155) Reprintedin NewYork Times, 18December1970,at 8,col. 5.
(156) Id.
(157) NewYorkTimes, 16 December 1970,at 1,col. 1; 17December
1970, at10, col. 1.
(158) Id., 23 December1970,at 1,col. 1.
(159) Id., 25 December1970,at3,col. 1.
(160) See A.Groth,supranote 152, at139-40.
(161) NewYorkTimes, 1July1976; at13, col. 4,21 July1976, at
7,col. 1.
(162) See L.Weschler,Solidarity 209 (1982); LeMondeDossierset
Documents, March1982, at3,col. 1. On theproblemsofreform,
seeCzachorski &Stelmachowski,Evoluciondelderechocivilen
los palsessocialistas, 5LXXVAnosdeevoluci6njuridicaenel
mundo19 (1976);Kowalski, Problemyrefarmysystemupoliticznego
PolskiejRzeczypospolitejLudowej, 36 PafstowiPrawo3(March
1981); Stelmachowski, Lessyndicats: le processusd'adaptation
au syst6me socio-politique (1981) (UniversityofWarsaw,
privatelycirculated);Zielinski, Strajk (Aspektypoliticzno-
prawne), 36Panstwo iPrawo3, 16 (April1981) (threetsand
failuretorecognizeright to strikewillcreate bccklashagainst
government; theonlyguarantee againstmassive strikesissocial
equity). Foradetailedchronology ofth, eventsinPoland
1980-81,La PologneContemporaine (Warsaw)No. 13/14,July 1981.
- 98 -
(163) Sol:*darity hadcalledforareferendumonthe governmentto be held
on 15 January].982. Keesing'sContemporaryArchives,26 March1982,
at 31393.
(164) See LeMondeDossiers et Documents,March 1982, at 11, col. 5;
NewYorkTimes, 3February1982, at 10, col. 3(roleof Western
bankers); Keesing's ContemporaryArchives, 26 March 1982, at 31390.
(165) Journalof LawsNo. 29,entry 159, 12 December1981, Ordinance
of the CouncilofMinistersonInternmentof PolishCitizens,
section3 (1).
(166) JournalofLawsNo. 29, entry 156, 12 December 1981, article13 (3).
(167) NewYorkTimes, 9January 1982, at 1,col. 1.
(168) Reprinted in InformationBulletin (Prague), May 1982,at 12, 15.
(169) Accordingto the PolishPressAgency (PAP), 14 personswere injured,
and 205 arrestedin protests over400% priceincreases. NewYork
Times, 1February1982at 1,col. 2; 5February 1982, at3,col. 4.
(170) At least 194 personswere arrestedafter clashes on14 February.
NewYorkTimes, 15 February1982, at 1,col. 2.
(171) Foran eye-witnessaccount,see InTheseTimes (Chicago), 26May
1982, at 7,col. 1.
(172) Times (London), 16 April,at 5a.
(173) NewYorkTimes, 5September1982at 2E, col. 1,3E, col. 1. Unrest
has continued asof this writing; riots broke outin NowaHutaon
14 September.
(1-14) See RichardSzalowski's introductoryessay to thePolishCon-
stitution inFeldbrugge, supranote 41, at284-85. See generally,
Garlicki,PolishConstitutionalDevelopment in the 1970's, 3Comp.
L.Y.B.247 (1979).
(175) See Blaustein,supranote 61, Polandat6.
(176) Keesing'sContemporaryArchives, 26 March 1982, at31396.
(177) JoucnalofLawsNo.29, entry156, 12December 1981, article10.
(178) PolishAcademyofSciences InstituteofState and Law,Codeof
CriminalProcedureof thePolishPeople'sRepublic69 (1979). See
alsoI.Andrejew,PolskiePrawo Karne (1973), esp.at297 (hooligan-
ism).
- 99 -
GHANA -EMERGENCYSTUDY
CONTENTS
Page
I. INTRODUCTION ............. ............................. 101
II. THE EMERGENCYPOWERSACTOF1961AND
THEFIRSTDECLARATIONOF EMERGENCY....................... 105
III. THEDISTURBANCESOFTHE EARLY60's AND
THE SECONDDECLARATIONOFEMERGENCY......................108
IV. THENATIONALLIBERATIONCOUNCIL (NLC)REGIME,
1966- 1969 ............................................ 110
V. THE BUSIAGOVERNMENT ................................... 115
VI. THENRC/SMCREGIME, 1972 - 1978.......................... 117
VII. SMC UNDERAKUFFO,5JULY1978 - 4JUNE 1979............. 124
VIII. THE AFRCERA, 4JUNE1979- 24 SEPTEMBER1979 .......... 126
IX. AFRC,ATRUEEMERGENCYGOVERNMENT........................128
X. THE3RD REPUBLIC ....................................... 130
XI. CONCLUSIONS............................................ 131
-0-0-0-0-
- 101 -
GHANA - EMERGENCYSTUDY
I. INTRODUCTION
Humanrightsissueshavedoggedthe affairsofGhanasinceit
attainedindependence
fromthe BritishonMarch6, 1957. A complicating
factorin thissituationhas beenthealternatingpattern inwhich
civilianandmilitaryregimeshavereplacedeachother. Todatethere
havebeen4 civilianand3militarygovernments.
The fourthcivilian
government headedbyDrHillaLimanandhisProgressiveNational
Party (PNP)iscurrently inpower.
The protectionofhumanrights has traditionally
been found
tobeofthe essenceofconstitutionalism
andgovernmentbycivilians.
Consequently
militaryrule,bythe factof itsextra-constitutionality
in its establishment
andmannerof governance, becomesa negationof
politicalnormalcyandhence necessarilyakintoemergencyrulewhether
or notanemergencyis formallydeclared.
Consequentlythe totallengthof timeGhanahas beenunder
militaryrulegivesrise toconcern for thehumanrightssituation
there,particularly
as evenpastciviliangoveriunents in thecountryhave
not beenwithout seriousblemishesregardinghuLman rights. For these
governmentshaveonoccasionsresortedto emergencyandquasi-emergency
measuresundercircumstances
thathavebeendifficult to justify.
Itis wellknownthat,while safeguardinghumanrights,cons-
titutionsalso investtheexecutivewithpowersthatenablestatesof
emergencytobedeclared,resultingin the drasticcurtailmentor
evenoutrightabrogation oftheveryrightspurported tobeprotected.
This is said tobedonein the interestofpublicorder,nationalsecu-
rityorpublicservices.
Emergencylawat independence
Inaddition toguarantees forfreedomof conscience,lawful
assembly,personal liberty,andfor non-discrimination
ongroundsof
race,creedorcolour,and theprohibitionofcompulsoryacquisition
ofpropertybythe governmentwithoutcompensation,
the Independence
Constitution
providedfor the continuation
ofthe existingEmergency
PowersOrders inCouncil (1939-56)forupto 12 monthsafterMarch6,
1957. Thisordinancewas, however,soon supercededby theEmergency
PowersAct,1957. UnderthisActlocal, limitedor generalstatesof
emergencycouldbedeclaredby the governmentin theinterestofpub-
lichealth,safetyandorder,national security,or theuninterrupted
provisionofgovernmentservicesthatwereessentialto the lifeof
the community,provided the governmentwas satisfiedthata stateof
emergencyexisted,proclaimed itsexistenceintheGazette,andcom-
municatedthecircumstances
of the emergencyto the legislature.
In anemergencythegovernmentcouldorderthe detention,
deportation,
andexclusionofpersonseitherfromthe entirecountry
orfromemergency areas. In ageneral stateof emergency (i.e.one
- 102 -
covering thewhole country)the governmentcoulddetainpersons
withoutcharge for upto 14 days. Furtheritcould, interalia,
takepossessionor controlofanypropertyorundertaking; acquire
anypropertyotherthan land; enterandsearchanypremises; amend
anylaworsuspend the operationandapplicationofanylawwith or
withoutmodification. It couldalsodelegate andcomplement its
emergencypowersas it deemed "necessaryorexpedient".
The Act required that emergency regulations be submitted
tc the legislature for confirmationwithin28 days of such submis-
sion or else cease to have effect. Also, the government had no
authority, in a limited state of emergency (i.e. one restricted to
a part of the country) to detain a person for more than 14 days
without trial, norcouldit make it anoffence for any personor
persons to take part in astrike (notbeing astrike declaredby
law to be illegal) orpeaceablyto persuadeanyotherpersonorper-
sons to take part in such astrike,TheActprohibited trialofci-
viliansbymilitarycourts.
Pre-independencepoliticalunrest
The imminenceof independencehadgiven rise to ahostof
ethnicand sectionalgroups, suchas the NorthernPeoplesParty,the
TogolandCongressParty,the MoslemAssociationParty andthe Nation-
al Liberation Movement (NLM). Thesewere inactive oppositionto
the ConventionPeoples Party (CPP)which,under theleadershipof
Nkrumah,hadby1954 establisheditselfas the dominantnationalist
movement, The NLM, founded in 1954,was ofparticular significance
because itwas fosteredand ledbycertainelementswhich,having
been defeatedin theirbid forpoliticalcontrolofthe emerging
country,resorted to disruptivepoliticalstrategiestoachievea
shareofpoliticalpower.
Immediatelyuponbeing formed theNLMstartedexploiting
ethnicchauvinism,to agitatewithviolenceforsecessionofthe
Ashantiregionwhere they hadsomepolitical influence,andwhichwas
the wealthiestpartof the country. Whenthis failed, theydemanded
aformof federationthat wouldhavecompletelyundermined theautho-
rityofthecentral government. Thismovealsofailed andtheNLM
thenattemptedto obtainashare inthe country'sadministrationby
makingaproposal for far-reachingdecentralisationofpower.
Theactivitiesof theNLMcausedmuchunrest,aswasindeed
intended. TheCPP,whichwassharingpolitical andadministrative
controlwiththe Britishduringtheperiodofinternal selfgovernment
(1951-57)waspressingfor the immediategrantof full independence.
The Britishon theirpartwerenotpreparedtohandovergovernment
under suchunstablepoliticalconditions. TheCPPwasthereforeeager
to restorepeaceandstability. The NLM,however,found in these
conditionsaperfectopportunitytoblackmailboththeCPP andthe
Britishintograntingpoliticalconcessionswhichit hadbeenunable
toobtainthroughtheballotbox. Inthe result,it rejectedall
overturesmadebytheCPPand thecolonialgovernment toresolve the
constitutionalcrisis,andevenboycottedParliamentwhen theCPP
tabledthe motionfor independenceinAugust1956.
- 103 -
The PreventiveDetentionActo 1958 (PDA)and its abuse
Anxious tocontain this disruptivaoppositionthe Nkrumah
governmentsoonafter independenceenactedthe DeportationAct,
1957 andthePreventive DetentionAct,1958 (PDA). Referrind to the
latterNkrumahdeclaredthat "... the onlypersons whoneedto be
alarmed about/the PDA/are thosewhoare eitherattemptingto orga-
nise violence,terrorismorcivilwar orwho are actingas fifth
columnists for some foreignpower ihterested insubversion inGhana
le saidthat thepurposeof the Bill was to enablethe govern-
mentto "dealresolutely andwithoutdelaywithanyattempttosub-
vertthestate by force."
The PDAwasnot linkedto states ofemergency,butwaspartof
the permanentlegislation. It was soon to playadisquietingrole in
administrativedetentiontinder Nkrumah. By tiisAct, thePrime Minis-
tercould order the detention of any Ghanaian citizen if he was
"satisfied" that such order was "necessary to prevent /such person!
acting in amannerprejudicial to the defenceofGhana,the relations
ofGhanawithothercountries,or the securityof the State". Any
policeofficerhadlawful authorityto arrestapersonagainstwhoma
detentionorderwas issued. The Minister for Defence (Nkrumahhimself)
had authority,if he had "reason tobelieve"apersonwasattempting
to evadeadetenticnorder, topublishanotice in the Gazettedirect-
ing suchpersonto reportto amemberof thepoliceforcewithina
specifiedperiodandataparticular place. Failureto reportwas
madeanoffence.
Adetaineewasentitledtobe informedof thegroundsonwhich
hewas beingdetainedwithinfivedaysofhisarrest, andhadan oppor-
tunityto make representationsinwritingto theExecutivewithrespect
tohis detention. Detentionunder the Actcouldlastupto 5years,
andthiscould beprolonged (sometimeswithretroactiveeffect)on
groundsofactivities in whichadetainee mayhave beenconcernedand
which had beencarriedonattimessubsequent to the dateofthe
originaldetentionorder. Personswhoweredetained,therefore, had
hardlyany meaningfulprotection underthe law.
The Executive could suspendadetentionorderon condition
tiat the detaineenotifiedhis movements to aspecifiedauthority and
gaveabondfor the observanceofany conditionsimposed,but sus-
pensionoforderswas rareand evenwhenmade, wasoften followed
soonbyredetention.
TheAct itselfwas to expirewithin5yearsof itsenactment
unlessthe NationalAssemblyextendedits life for 3year periods.
On the expirationdateallordersissued under it were toceasehav-
ingeffectand detaineeswere to beentitledto immediaterelease.
Itwas,however,renewed andat the fall oftheNkrumah regimeon
February24, 1966, thePDAhadbeen in forcecontinuouslyfor almost
9years. The government hadduringthisperiodmade two formalde-
clarationsofemergencies; the first in September1961, lasting for
one week,the secondin 1962, whichwas, however,nEverformally
revoked,thoughcertainrestrictionsattending itwere liftedaftera
month. Estimatesofthe numberofpersonsheldundertheActby 1966,
run fromseveralhundreds toseveral thousands.
- 104 -
This uncertaintyaboutthe final figureofdetaineesreflected
howthePDAwas honouredmorein itsabuse than in itsstrictobser-
vance. Only the detentions of the first 300 persons or so, effected
between1958and 1960 ,weredulypublishedin theofficialgazette.
Thereafterdetentionsweremadewithoutpublicnotice contraryto the
termsofthe Act.
The abusiveapplication ofthe PDAwas alsorevealedbythe
compositionof the detaineesreleasedafterNkrumah's ouster. These
ranged fromprominentpoliticians bothof theopposition as well asof
Nkrumah'sownparty,to political non-entitieswhose threat to the se-
curityofthe countrywasdifficult to perceive.
An indisputablecauseof themisuseofthe PDAwas theclimate
of impunity createdby its administrativenature. This enabledpolice,
partyand governmentofficialsin particular to employtheActorcause
it to be employedagainst personswhoseactivitieshad notevenare-
motebearingon state securityorpublicorder, in theknowledgeor
beliefthat thoseresponsible for the detentionswere immune from res-
traintorpunishment.
Onits part the government'sreactionto tne disruptive elements
in theopposition soondegeneratedinto the eliminationof legitimate
oppositionwith the passageof tie NationalAssembly (Disqualification)
Act,1959, underwhichpersons "againstwhomonorderunder the /PDA
was/in forceor ... againstwhoin such an order has been in force at any
time in the period of five years ending with the date of election" was
barred from standing for election to the Parliament. A member of Par-
liamentwould be forced tovacate his seat ifadetentionorderwas
issued against him at any time during his term. These provisions
applied ex post factoto anydetentionorder,including those made
beforethe enactmentof theAct in question. This Act, therefore fos-
tt.'edthe systematisationofabusiveadministrativedetention.
The 1960 RepublicanConstitutionandhumanrights
The firstRepublicanConstitutionwaspromulgated in 1960.
UnderArticle 23(3) it authorisedthe Executive, in caseofanemer-
gencywhen the National Assembly was dissolved to "summon an assembly
of the personswhoweremembersof Parliamentimmediatelybeforethe
dissolution to actas the NationalAssemblyuntil the majorityof
results havebeendeclaredin aGeneralElection". Also, asCommander-
in-Chiefof theArmedForces, the Presidentcould "... order anyof
the saidForces toengagein operationsfor the defenceofGhana, for
thepreservationofpublicorder,/and/ for reliefin casesofemer-
gency".
TheConstitutionmadeonlybroadreferences tohumanrights.
Article13(1) required the ExecutivePresident to solemnlydeclarehis
adherence, interalia, to theprinciples "that nopersonshould suffer
discriminationongroundsof sex,race, tribe,religionorpolitical
beliefs"; that "everycitizenofGhanashouldreceivehis fair shareof
the produceyieldedby thedevelopmentof thecountry; that subjectto
suchrestrictionsas maybenecessaryforpreservingpublicorder,moral-
- 105 -
ityorhealth,no personshouldbedeprivedoffreedomofreligionor
speech,oftheright to moveandassemblewithouthindranceorof the
right ofaccess to courtsof law". Article13(2) entrenchedthese
provisionsand reservedthe right to repealor alter themfor the
peoplein areferendum.
II. THEEMERGENCYPOWERSACTOF 196
ANDTHEFIRSTDECLARATIONOFEMERGENCY
In 1961, the EmergencyPowersAct (1961)was passedto repeal
thatof1957 and "to consolidate ...enactmentsconferring onthe Pre-
sidentcertainpowers tobeexercisedin casesofemergency". Although
theExecutive'spowersunder thenewActequalledorexceededthose
ithad previously,andalthoughemergencyregulationsunderthisAct
were tobe laidbefore the legislature (within10days for ageneral
stateofemergency,and atthe nextmeetingofthe legislature fora
localisedemergency) the newAct,unlike theold,didnot provide for
automaticexpirationof these regulations if:ejectedby the legisla-
ture. Avital formof controlover theExecutive'suse ofemergency
powerswas thus eliminated. HenceforthonlytheCabinets'approval
ofthesepowers was required. Moreoverpublicationofastate of
emergencyin the Gazette,previouslyrequired, wasdroppedunderthe
newAct, One usefulrestriction placedonthe exerciseofemergency
powersbythe 1961Act though,was thatcivilianscouldnotbe tried
bymilitarytribunals.
The first formal declarationof emergencyduringtheNkrumah
regime unuer thisAct wasmadesoonafter theActwas passed, The
occasionfor it was astrike in September 1961 undertakenbyrail and
dockworkersatSekondi-Taboradi againstageneralincreasein taxes,
including the introductionofpropertyand sales tax and the deduc-
tionof income taxand compulsory savingsatsource.
APresidential Commission,whichwasactingonbehalfof
Nkrumahwhilehe was outof the country,declaredan emergencyin the
strikeareaand issuedregulations to restrictandcontroldemonstra-
tionsand meetings,and to detainorremovepersons from thearea
inquestion. In additionacurlewwas imposed, and theAshantiPioneer,
anewspaperwhichregularly criticised thegovernmentwascensored
under section 183 oftheCriminalCode, 1960.
All theseregulationswere rescindedwithin4dayswiththe
returnofNkrumah. Butthreemembersoftheoppositionwere detained
ongroundsofinvolvement in the disturbances.
The infusionofquasi-emergencyverbiage intosomedocuments
on criminallawenabled the government to subjectcertainspheresof
prohibited activities to emergencymeasures,throughthe criminal
justicesystem, resulting in deprivationof certainrights. One sphere
ofactivitythat suffered fromthis integratedemergency-cum-criminal
measure was freedomof informationthrought themedia. Between1958
and 1961, the relevantlegislation in this connectionwas theCriminal
Codeof1960, section183, asamendedin 1961.
- 106-
This section empoweredthePresident to introducebyanexecu-
tive instrument,the censorshipofany newspaper,bookordocument
publishedperiodicallyif he wasof the opinionthat there wassystem-
atic publication of matter calculated to prejuauu Llic -rder or
safety, or the maintenance of public services or the economy of the
country, or that any person was likely to publish individual documents
containing such matter. The executive instrument could require that
"no tuture issue of the /periodical/
shall be published,
or .... that
no docament shall be oubllshed by or by arrangement with /the person
responsible for the publication/ unless the matter contained therein
,had/ beenpassed for publication ...". The President's opinion on
this matter was not subject to judicial review.
It is true that some elements of the opposition were fomenting
rumours, fear and instability. Hio'wever, no government can expect un-
critical support for everything it does, and Nkrumah's government had
become blind even to genuine and justifiable protests, and was isolat-
ing itself increasingly from the people. The rail and port workers
strike in 1961 demonstrated this rapid loss of touch by the government
with its political base.
In these circumstances the emergency laws effectively blocked
all avenues of open coitmiunication,
eliminated the possibility for
meaningful evaluation of information, and fostered the very conditions
for rumour-mongering
and insecurity sought to be curbed.
Tile case of Baffour Osci Akoto
The increasingly repressive conduct of the government was
challenged in 1961. in the celebrated case of Baffour Osei Akoto and
othersvThe Minister of Interior (re Akoto), CivilAppeal42/61.
In this case,Baffour Akotoand sevenotherswere detainedin 1959
under the PreventiveDetentionAct,1958, for "actinginamannerprejudicial
tothe securityof the state, in that/theyhad_ encouragedcommissionof
actsofviolence ...andhad associatedwithpersonswho/had/ adopteda
policy ofviolence as ameans for achievingpoliticalaims ... ". Ahabeas
corpus applicationwas rejectedin the firstinstance, and onappealitwas
argued,inter alia, that the grounds for the detentionsdidnot cite
specific"actsprejudicial tothe securityofthestate", and thatthePDA
wasin excess ofpowers conferred onParliamentby the ConstitutionofGhana
with respectto Article 13(1) ofthe saidConstitution,orcontrary
to the solemndeclarationoffundamentalprinciplesmade bythe Presi-
dentonassumptionofoffice.
The SupremeCourtrejectedbotharguments. Onthe firstargu-
mentit held unanimously that the HabeasCorpusAct did notapply
"becausethe PreventiveDetentionAct underwhichappellantsare
detainad,vestsplenarydiscretion in the ...President,if satisfied
thatsuchorderis necessary. Thecourtcouldnottherefore enquire
intothe truthofthe facts set forth in thegroundsonwhicheach
appellanthasbeendetained."
- 107 -
On the secondgroundtheCourt held thatArticle13 ofthe
Constitutionwhichrequired the Presidenttosolemnlydeclare to up-
holdcertainhumanrigits specifiedtherein "doesnot representa
legal requirementwhichcan be enfcrcedby thecourts ... ,because
underArticle 13(2) "the people'sremedy for any departurefromthe
principles ofthe declaration is through theballotboxandnot
thecourts".
ConsequentlyArticle 13 washeldnot tobe ajusticiablebill
ofrightsand therefore not to placeanylegal limitationson the
executivepower.
The re Akoto casewasextremelyimportantbecause it touched
directly upon the protection of fundamental rights under the 1960
Constitutionby the courts. Its dismissalwas therefore regrettable
is as much as it offered the Supreme Cort the best opportunity it
could expect under the conditions prevailing to mould some flesh on to
the skeletal human rights provisions in the Constitution. This it
could have done by reviewingthe exerciseof the wide discretionary
powers wielded by the President under the PDA. Instead the Court not
only refused to develop any meaningful yardstick for the exercise of
these powers but further gave the sanctior of the Constitutionto
them This was in agreement with the Attorney General's contention
on behalf of the government, that,
"Article20ofthe ConstitutionofGhanaconfersonthe
Parliament ...unlimitedlegislativeauthorityexcept
onlyin regardto amendments to the Constitution. The
SupremeCourtis, therefore,only calledupon to declare
void anActofParliamentwhichalters orrepeals oneof
the entrenched clauses or which purporLs to alter or repeal
oneof the non-entrenchedclausesotherthan byan Act
exclusivelydevoted to thispurpose."
But Article 20(2) also stipulated that "so muchof the legislative
powerof the stateas isnot reservedbythe Constitution to thepeople,
is conferred inParliament". AndArticle13 specifiedthat "powerto
repeal ...or to alterits provisionsotherwisethan bythe addition
offurtherparagraphs to the declarationis reserved to thepeople"
(emphasisadded). Clearlythe Constitutionreservedlegislativepower
to the peoplewithregard to Article13, within thetermsofArticle
20(2), whichpowerwas effectively altered"otherwisethan bythe
additionof furtherparagraphs ..."byParliamentthrough the PDA.On
thisbasisit is submi'tedthatthe courtshouldhavenullified the
PDAand requifedits revalidationby thepeoplein areferendumas
providedbyArticle13(2). Thiswas the remedyavailable under the
Constitution forany detractionby Parliament fromthe entrenched human
rightsprovisions. In its formandcontent thisremedywasbothpoli-
ticaland legal inas much as it involvedthe exerciseof legislative
powerby the people,and hence itwas justiciable. Yet thecourt
chose to see the remedysolelyin itspoliticalterms, therebyexclud-
ing its justiciability.
- 108 -
Theinjectionofquasi-emergency
qualitiesinto thecriminal
justice systemcontinuedunderthe Nkrumahregime,with theenactment
ofthe CriminalProcedure (Amendment)Act, 1961, this timeat the
expenseofbasicprocedural rights andremedies under thatsystem.
ThisAct createda"SpecialCriminalDivision"ofthe HighCourtto
dealexpeditiouslywithcriminal offencesagainstthesafetyof the
stateoragainstthe peace ...andoffencesspecifiedbythePresident
bylegislative instrument."
The jurisdictionof this court, thecompositionof itsbench
anditsprocedural requirementswere intendedto makemore certain
theconvictions ofperceivedadversariesof the President. The bench
comprisedapresidingjudgeand twoothermembersconstitutedbythe
ChiefJusticein accordancewitharequestmadeto himby thePresident.
Proceedings in this Divisionwerebysummary trial, i.e. withoutprelim-
inaryproceedingsandwithout jury,and its decisionswerefinal, minor-
ityopinionsbeingundisclosable.
The AttorneyGeneral decidedwhether acase wasbroughtbefore
ortransferred to the SpecialCriminal Division. The Presidentwas
empowered, afterconsultationwith the ChiefJusticeto "makesuch
adaptationof the CriminalProcedureCodeandsuchotherregulations
as he thoughtproper"by legislativeinstruments.
III. THEDISTURBANCESOFTHEEARLY60'sAND
THESECONDDECLARATIONOFEMERGENCY
InAugust1962, Nkrumahwasgravelywoundedin anattempton
his life. Between the followingmonth andJanuary1963, CPPrallies
wererepeatedlyterrorisedwithgrenadeexplosions resultingin the
killiq., maimingand woundingofseveral innocentcitizens,including
children. In January1964asecondbombattackwasmadeonNkrumah.
Nkrumah reacted tothese violentactivities,firstbyordering
the detentionoftwomembersof hisadministration
and the General
Secretaryofthe CPP inconnectionwith the earlierattempton his
life. Regarding the bombthrowingincidentsatCPPrallies,he declar-
edastateof emergency(the 2nd andlastofficialdeclaration) inthe
capital,Accraand inTerna, imposedacurfewin theseareas,and
issuedstrictemergencyregulations underwhich the Executive,the
Ministerof InternalAffairs and thepolicecouldtake certainmeas-
uresagainstpublicationof 'disturbing'reportsandthecommission
ofactsprejudicial topublicsafetyor likelytocausedisaffection.
Authorisedmeasuresincludedcontrolofprocessionsandmeetings,
erectionof roadbarriers, issuingofdetentionand removalorders,
and arrestswithoutwarrant. While the curfewandattendantrestric-
tionswere liftedafter amonth,the stateof emergenc was not for-
mallyrevoked,andcontinuedin effectuntil theoverthrowofthe
governmentin 1966.
Theensuingintensification
ofthe repressionwasaccompanied
bylegal reinforcements.
ThePDA (Amendment)Act,1962, broadened
the scopeof the executivepowerto re-detainbyauthorising the Pre-
sident"... ifheis satifiedthat anypersonwhohas beenreleased
afterbeingdetainedunderthis acthas subsequentlyconcernedhimself
withactivitiesprejudicial to the defenceofGhana,the relationsof
- 109 -
Ghanawithothercountriesorthe securityof the state" to "detain
such...person for aperiodnotexceeding5years, inrespectof
each timeheso concernshimself ... ". Also introducedwasthenoto-
rious "28-dayrule" underthe CriminalProcedure (Amendment) (No3)
Act, 1962,bywhich"... any persontaken intocustodymay,withthe
consentin writingof theAttorneyGeneral,beheldin such custody
foraperiodof28 daysorsuch ,)therperiodas theAttorneyGeneral
maydetermine".
ThePresident'spowersofdetentionwereenlargedeven further
by the PDA (Amendment)Act,1963. ThisActempowered thePresident
"... atany timebeforethe expirationofanorder .../to/ direct
/that/ theperiodof the detentionauthorisedby thatorderbeextended
for afurther periodnot exceedingfiveyears if inhis opinionthe
release ofthe persondetainedwouldbeprejudicial to thematters
specified .. ". All the amendmentsof'the PDAwereconsolidatedunder
the PDA, 1964, whichalso includedan alternativemeasuretodetention,
namelyanorder restrictingmovement forup to 5years in lieuofde-
tention in respectofaperson liable tobedetained,ifin the Presi-
dent'sopinion adetentionorderwouldnotbe suitabloonaccountof
the age orhealthof the person,of foranyotherreason. "Arestric-
tionordermay imposesuch conditions asmaybe specifiedin theor-
der,in respectofhis employmentorbusiness,and in respectofhis
associationor coimnunicationwithotherpersons". A existingdeten-
tion ordercouldbe replacedby arestrictionorderon similargrounds.
Thedeathsin detentionofObetsebi LampteyandDrDanguahdue to
ill-health suggest asparinguseof thisalternative to detention.
TheNewspaperLiccnsingAct, 1963, andtheRegulationsmade
underit, alsoaugmented thepowersof the executiveto controlthe
media. UndertheActand Regulations,every newspaperin the country
was requiredto be licensedannuallyand theMinisterofInformation
hadpowerto attach licensingconditionsand to refuse,revokeor
suspend alicense for failure tocomplywith suchconditions. Non-
compliancewith theseregulationswas acriminal offence.
The creationofnewcrimesagainstagainst the statewassim-
ilarlyextendedundertheCriminalCode (Amendment)Act,1964which
made it afirstdegree felony"to knowofanyact of treason andnot
to reveal it immediately to thePresident,aMinisterorapoliceof-
ficer". The Actalso authorised the Presidenttodeclareanorganisa-
tion a"prohibitedorganisation"if "satisfied thatits objectsor
activitiesarecontraryto thepublicgood, or that thereis adanger
of the organisationbeingusedforpurposesprejudicial to thepublic
good".
Mentionshouldalsobemadeof the StatesSecretsActof 1962,
whichauthorisedup to14 years imprisonmentfor "... anypersonwho,
for any purposeprejudicial to the safetyor interestsofthe Repu-
blic", engagedhimselfin prohibitedconductwithregardto avariety
ofstipulatedconcernsofthe state, specifiedtobesecret. The
levelofproofof "intent"under theAct,was low. Convictionunder
the Actcouldbeobtainedmerely "... if, fromthecircumstancesof
the case, or ...conduct,or ...knowncharacter /ofthe suspect! as
- 110 -
proved, itappoars thathispurposewas ...prejudicial to thesafety
or interestsof the Republic".
TheTreason Trial of1963-64
Themostsignificantgovernmental
interference in the crim-
inal justice system occurred when the three persons detained in connec-
tion with the firstattempt to assassinate
Nkrumah,were finallybrought
to trial. Theywere arraignedbefore the Special Criminal Division of
the High Court established under Criminal the
Procedure (Amendment) Act,
1961. Thejurisdiction
ofthisCourthadbeenexpandedby the Special
Criminal Division (Specified Offences) (No 2) Instrument, 1963, to cover
the newly created offences of "conspiracy or attempting to commait a spe-
cified offence, and harbouring a person who has committed a specified
offence.
In accordance with the terms of the 1961 Act, the proceedings
were suanmary (i.e. not on indictment) and without a jury, and the Court's
decision was final. The Court acquitted the accused persons, but the
President continued to detain them, and instead dismissed the Chief
Justice (Arku Korsah) and introduced motions in Parliament to remove
other judges. Two weeks after the Court's declsion, on the instigation
of the President, Parliament passed the Criminal Procedure (Amendment)
Act, 1964. This changed the composition of the Special Criminal Divi-
sion to include "the Chief Justice or some other judge of a superior
court appointed by the Chief Justice after consultation
with the Presi-
dent, sittingwithajuryof twelve persons". The jury members were,
however, to be selected from a "special list of jurors prepared from
the register of electors by the Judicial Secretary".
More importantly, however, the amendment authorised the Presi-
dent "... whereit appears to himthat it is in theinterestofthe secur-
ityofthe state so todo, byan executiveinstrument/to/ declarethe
decisionof theCourt to beofnoeffect"suchinstrumentbeing "..
deemedto be anolle prosequi enteredby theAttorneyGeneralbeforethe
decision in the casewas given". On the verydaythis amendmentwas
effected,Nkrumahnullifiedthecourt's acquittalof the threeaccused
persons,whichopenedthe way fortheir re-trial.
OnFebruary 24 1966,whileoutof thecountry,Nkrumahwas
oustedfromofficebyamilitaryandpolicecoupd'etat,the leadersof
whichproclaimed the NationalLiberation Council (NLC)whichwas the
firstmilitaryjuntaof the country.
IV. THENATIONALLIBERATIONCOUNCIL (NLC)REGIME, 1966 - 1969
Themajorobjections toNkrumah'sgovernmentwere itsconstitu-
tional excessesand theirdisastrous consequences
fordemocracyand
fundamental freedoms.
The basisoftheNLC's initialpopularity,andhenceof its
legitimacy, wasthe convergenceof thepeoplespoliticalrejectionof
the constitutional
governmentwith themilitarycoup.
- Iil-
Thepresenceof some500 personsdetainedbyNkrumah,afforded
immediate opportunity for the NLC to demonstrate its commitment to
humanrights, byreleasingall these detainees. Thisactionboosted
the image of the new regime tremendously. This was further enhanced
when the NLC, in further demonstration of its commitmen, to democracy,
promised a return to civilian governmeni: within three years. Greatly
to its credit, and almost uniquely among African military coups, this
promise was ifulfilled.
However, certain political factors led to limitations on the
NLC~s liberalisation. The NLC basically sympathised with the anti-
Nkrumah forces which were the initial targets of Nkrumah's human
rights excesses. At the same time, however, though most of Nkrumah's
supporters were disenchanted with him by the time he fell, they were
still a highly organised political force, and no sooner had they lost
power than they regrouped to regain it.
The absence of political neutrality on the part of the NLC,
therefore set it onacollisioncoursewiththe political forceswho
didnot enjoy its sympathy.
Theostensiblerepudiationofpoliticaldetention,and affirm-
ation of belief in free and fair democracy did not, however, turn out
in practice to be quite what it seemed.
Retentionof the existinglegalapparatus
First, the legalorder,includingemergencylaws andother
legislation existingunderNkrumah,waslargelyretained,exceptfor
the emergency powers under the 1960 Constitution which were inoperative
because of the suspension of the Constitution,
However, this was replaced by the National Liberation Council
(Consequential and Transitory Provisions) Decree, 1966, which empowered
the Commander-in-Chief of the Armed Forces "... to order any of the
ArmedForces to engageinoperations for the defenceofGhana,for the
preservationofpublicorder, forrelief in case of emergency or any
otherpurposeappearingto /him/ tobe expedient". TheEmergency
PowersAct,1961, remained ineffect.
On the questionofdetention, the NLCsoon appearedtobecon-
cernedmorewith the libertyofcertainsections ofthe populationthan
with thatofothers. Anexamplewasthe arrestofMrBoyeMoses, a
party functionary in the Nkrumah government after a long man-hunt. So
elatedwere the NLCgovernmentathis arrestthat they causedhimto
be lockedupinamonkeycageandparaded through theprincipalstreets
ofAccra.
WithoutannullingthePDA 1964,which hadbeen the core
legislationaffectingpersonalliberty underNkrumah,thegovernment
superimposed itsown legalinstrumentforadministrativedetentionin
theNationalLibtrationCouncil (ProtectiveCustody)Decree,1966,
whichauthorisedi thedetentionofpersonsinsuchplaceand forsuch
- 112 -
periodasthe NationalLiberationCouncil maydatermine".
Later amendments to this Decree required persons who were re-
leasedfromprotectivecustodyto reportanyplans theymay have for
foreign travel to the police. Failure to do so was punishable by a fine of
upto 500cedis (thenaboutUS$400) oraprison termnotexceedingone
year or both.
Detentionunder the NLC
It is estimated that under the National Liberation Council (Pro-
tective Custody) Decree, 1966, the NLC ordered the takingintolprotec-
tive custody'of atleast 546 personsduringits firstyearin power
alone, It also employed the criminal law system to assist in the cur-
tailment of personal freedoms of its political opponents. The Criminal
Procedure Code (Amendment) Decree, 1966, provided that ".. a person
taken into custody without a warrant may, with the consent in writing
of the Attorney General, be held in custody for a period of 28
days or such othei period as the Attorney General may determine and the
provisions /relating to bail ... shall not apply to a person so held".
Thus the military government reiterated the "28-day rule" established
by the previous regime, In 1969, a new amendment to the Criminal Pro-
cedure Code, narrowed the scope of the "28-day rule" by making it appli-
cable only to persons suspected of treason, subversion, murder, man-
slaughter and robbery with violence. The period a person could be
detained without trial for other types of offences was reduced to 48
hours.
Numerous violations of human rights occurred during the time
of the NLC regime involvingarbitraryarrestsanddetentions,butsince
these wereessentiallydirectedatCPPmembers,it didnot lead to the
same general climate of insecurity that existed under the previous
government,
ExParte Salifa
Oneofthemost significantcasesofarbitrarydetentionwas
thatof ex Parte Salifa (1968)2G&G, 374). Byparagraph16 (9)of
the NLC (ConsequentialandTransitoryProvisions)Decree, 1966 (NLCD73)
avaliddecreehad tobe publishedin theGazette,numbered,printed
and published by the Government Printer and purportto be a decree of
the NLC. The applicant, Salifa, ha ing been detained without any order,
causedahabeascorpusapplication to bemadeon hisbehalf,whereupon
the NLC purported to issue such an order in a decree which also provid-
ed that it "shall he deemed to have come into force notwithstanding
that it has not been published in the Gazette ... ". The validity of
this order was challended on the grounds that it was unnumbered and
was not published at the time of the deteotion, and that it was deemed
to have come into force before it was a.tually signed by the Chairman
of the NLC. In upholding the applicant's argument that such a document
was notadecree, thereby invalidatinghis deentionon order, the
Court stressedthat the NLChad exercised itspower todetainthe appli-
cantinamannerotherwise thanwas lawfullypermittedunder theprovi-
sionsof the lawas laiddownbyNLCD73.
- 113-
Pursuant tothisdecision theapplicantwasreleasedonlyto
beimmediately re-arrestedanddetainedagainunderasimilarunnum-
beredand unpublisheddetentionorderandchargedwithsubversion. The
applicantcontested thissecondorderagainonsimilargroundsas pre-
viously. This time,however,theCourt ,presidedoverbyadifferent
judge,agreedwith the AttorneyGeneralandheld thedecreeto bevalid,
because evidencewas lackingthat the decreewas notintended tobe
published. Accordingto theCourt "... the NLCnowgoverns thbu country
withpowertomakeand issuedecrees .../and/ it is the intentionthat
adecree couldbecomeoperativeandacteduponbefore itspublication".
The regimealsocreatednewcrimes againstthe state. Virst
amongthesewas theState SecurityDecree, 1966,whichmadeitunlawful
to communicatewithorharbourNkrumah oranyof85 otherpersons
associatedwiththeNkrumahregimeand named in thedecree. Failure
to complyamounted toaseconddegree felony; whilereceivingcommuni-
cation fromNkrumah orany ofthe 85withoutreportingitto the
authoritieswasamisdemeanour. Thesecond sourceofnew crimeswas
the National Liberation Council (Prohibition of Rumours) Decree, 19(5
whichdeclared that :"Anypersonwhopublishesorreproduces any
statement,rumourorreportwhich is likely tocause fearoralarmor
despondency tothe publicor todisturbthepublicpeaceor tocause
disaffectionagainstthe /N.L.C./ among thepublicoramongmembersof
theArmed Forcesorof thePoliceService, shallbe guiltyof anoffence
anduponconviction,shallbe liableto afinenotexceedingcedis 1,000
orto atermofimprisonmentnotexceeding threeyearsor toboth". It
was sufficientpublicationif itwasproved thatthe accusedpersonpub-
lished thestatement, rumour orreport toone person.
Under the ArmedForcesAct,1962 (Amendment)Decree1967 the
NLC substantiallyenlargedthe scopeofsubversiveactivities as pre-
viouslydefinedunderthe TreasonAct1959. ThisDecreecreateda
specialmilitarytribunalcomprisingofficersof the ArmedForces
whosedecisionwas final, to trybothciviliansandmilitarypersonnel
accusedof subversion. ThosefoundguiltyundertheDecreecouldbe
sentenced to deathbyshooting,orimprisonment fornot less than
25 years. TheNLC secretly triedand publiclyexecutedLts.Arthurand
Yeboahunder thisDecreein 1967. Athird accused,Lt.OseiPoku,was
sentencedto25 yearsimprisonment. It can hardlybe said thatthe
accusedreceivedafairand publichearingbyan independentand
impartial tribunal.
Politicalbiasof the NLC andrelatedviolationsofhumanrights
Perhapstheprincipaldenialofhumanrightsunder theNLCwas
the exclusionof varioussections of thecommunity,particularly
thosewho hadbeenassociatedinone wayorthe otherwith theNkrumah
regime,fromeffectiveparticipationin the curre;.tand futurepoliti-
cal processesof the country.
Havingpromisedareturntocivilianrulewithin threeyears,
the NLCproceededto setupaConstitutionalCommissiontomake
proposalsonaConstitutionforGhana. Atthe sametime,
theregime employedamixtureofpolitical,administrativeaniem.ergen-
- 114 -
cymeasures toguarantee thefuturepoliticaldominanceof its civil-
ianpoliticalallies,while b3rringallpossible avenuesforfuture
participationingovernmentby theirpoliticalopponents,
Oneofthe firstactions the NLC took uponassumptionofpower
was todisbandandprohibit th, CPP, in particularandplaceZgeneral
ban on all political activities, includingpoliticalpartieswhich actwas
not condemnablein itself. However,byacarefulselectionofthe
membershipon the ConstitutionalCommission,and bythe settingupof
a 'Centrefor CivicEducation' staffedwith formerpoliticalopponents
ofthe CPP; the NLCallowed thesepeople to bepoliticallyactivelong
before the generalban onpoliticswas lifted,under theguiseofedu-
catingthe populaceon theircivic rights. TheNLC alsogavethemthe
central role in the determinationof the form and content of the future
Constitutior, of the country, which no doubt favoured their political
supremcy.
Thisobjectiveof theNLC becameclearwhen thebanonpolitical
activitieswas liftedinMay 1969, in preparation for theelections.
Theelectionswereheld in August1969under the SecondRepublican Cons-
titutionwhichhad beenpromulgatedonAugust22, 1969. Thoseindivi-
duals andcategories ofindividualswhowereconnectedwiththe Nkrumah
regime, the CPPoritsaffiliates, weredisqualified fromrunningfor
orholdingpublicoffice for 10 years bythe Elections andPublicOffi-
ces DisqualificationDecreesof1968 and 1969. These Decreesprohibit-
ed "... theyromotionbywhatevermeansofthe re-establishmentofthe
dissolved /CPP/ inwhateverform .."o AnExemptionsCommissionto hear
claimsofexemption fromdisqualificationwas establishedbut thisCom-
mission'sdecisionswerefinaland notsubject to judicial review.
One hundredand fiftytwo (152)persons, including leading
membersofthe Nkrumahregimewereeffectivelybarred fromholdingpub-
licoffices,asaresultof theDisqualificationsDecrees. Moreover,
anewsocialistparty,calledthe People'sPopularPartywassaid to
be madeupofCPPsympathisers andimmediatelyoutlawedbythe Prohibit-
ed OrganisationsDecree, 1969,on the grounds thatitwasfor thepublic
good to doso. Also, specificpersons listedin the Decreewerebar-
red fromcampaigning for andholdingpublicofficeaswellas "from
holdingoffice in,orbeing foundingmembers ofapoliticalparty".
The resultofthe th' ensuingelections foraciviliangovern-
mentwasavictoryfor the ProgressParty,whoseleader,DrBusia,had
beentheheadofthe Centre forCivicEducationestablishedbytheNLC
governmentand as suchhadbeenableto tour thecountryexplainingthe
newConstitutionbeforeotherpoliticalactivitywas allowed. The for-
merChiefJusticeAbuffo-Addo,whobecame thePresidentfollowingthe
elections,hadbeen the ChairmanoftheConstitutionalCommissionwhich
drewupthe proposalsfor theConstitutionoftheSecondRepublic.
- 115-
V. THEBUSIAGOVERNMENT
Intermsoflegalprovisions the Busiagovernmentwaswell
equippedto protecthuman rights. Admittedly the EmergencyPowersAct,
1961and paradoxicallythe PDA,1964 remainedineffect. Butthe 1969
Constitutioncontaineddetailedprovisionsregulati;.g a state ofemer-
gency,whichtheoreticallykepttheexerciseofsuch powersona very
shortleash.
The 2ndRepublican Constitution,1968
Chapter fourofthe Constitutionprovidedin greatdetail for
theprotection ofcivil liberties (Arts12-25). The rightsguaranteed
pertained to life, liberty, securityof theperson, theprotectionof
the lawandunimpededaccess to the courts oflaw. Alsoprovidedfor
were freedomof conscience,ofexpression,andofassemblyand associa-
tion, protection for theprivacyofthe home, correspondenceandother
propertyand fromdeprivationofpropertywithoutcompensation.
Characteristically, all theserights, except forthose to life,
the protectionofthe law andunimpededaccessto the courts, could
be curtailedin theinterestofdefence,publicsafetyandorder.
Article26 ofthe Constitutiondefineda state ofemergency
as onewhichis "calculatedto deprivethe communityof the essentials
oflife, or ... renders necessary thetakingofmeasureswhichare
requisite for securing the publicsafety, the defence ofGhanaand the
:..a!_ cenanceof puulicorderand suppliesand services essential to the
lifeofthe community". Powerto declarean emergencywasvested in
the Presidentwhowasrequired,upon proclaiminganemergency, tore-
port the basisofhisdecisionto the Councilof State whichhad
power to revoke the proclamation. If the emergencywas tolastfor
longer thana week, the NationalAsqembly's approvalwas necessary.
The Assembly couldapproveaninitialextensionof up tothree
months and thereafter byresolutionsgrantone-monthextensions. The
Assemblycouldatanytime revokea stateofemergency ithadprevious-
lyapproved.
ByArticle54 (Chap.5) theNationalSecurityCouncilwas ...
the authority... responsible for thetakingorimplementationofsuch
/emergenc[/measuresasare reasonably justifiablefor thepurpnsesof
dealingwiththe situationthathas arisen."
Specialprovisionsunder Articles27 and 28 specificallysought
to protectpersonsdetainedunder emergencylaws andtoavoid theabuse
ofadministrativedetention. Undertheseprovisions,a detaineeand his
nextofkin wereentitledto benotified ofthegrounds for detention
Otherrightsof the detaineeincludedtheright to periodic
reviewofhis detentionorder,the firstbeingwithin fourteendays
ofhisdetentionbya tribunalof threejudgesof theSupremeCourt,
the right tocounselandthe right to havepublishedinthe Gazette
within10daysofthe detentionanannouncementofthe detentionand
the grounds forit.
- 116 -
Inaddition,the governmenthad to makemonthlyreports to the
NationalAssemblyon the numberofdetainedorrestrictedpersonsand
its compliancewithdecisionsofthe reviewtribunalwhereappropriate.
TheHighCourtwasvestedwith jurisdictiononmattersconcerninghuman
rightswithoutprejudiceto otherrightsofthe detainee (Art.28).
FinallyArticle 25(5) declaredthat "fortheavoidance ofdoubts ...
atthe endofanyemergencydeclaredpursuanttothe provisionsof ..
thisConstitution, anyperson inrestrictionordetentionorincusto-
dy ...asaresultof the declarationof theemergency shall forthwith
be released."
The laissez-faireideologyofthegovernment ledit to adopt
economicanddevelopmentmodelswhichmanyconsideredweredisastrous
for theunderdevelopedeconomyofGhana. Thegovernmentappearedto
beblindto theorganic relationsbetweencertainsocio-economicpre-
conditionsandtheenjoymentofcivil andpolitical rights. As itwere,
theConstitutionattemptedto guarantee the latterwhile ignoringthe
former. The resultwas aclassicvicious circleinwhichdesper-
ate socio-economicconditionsresulting fromgovernmental. policies,led
toprotestswhichweremetwith repressionbythe governmentwhosaw
themas threatstopublicorder.
The RightofAssociationandThe IndustrialRelations (Amendment)Act,
of1971
WhenBusia'sgovernmentcame to aratherabruptend,i hadvio-
latedsomeofthevery rightsitpledgeditselftoprotectatall costs.
Withinashorttime ofassumingpower,thepoliciesofthe go-
vernmentmet withprotests fromcertainsectors of thepress andthe
students. By1971, workers hadjoinedthe ranksofthoseprotesting
againstthe ineffectivenessof thegovernment's economicpolicies, re-
sorting to strikes tobackdemands for betterwagesandworkingcondi-
tions.
Thegovernment's responsewas simplyto banthe TradeUnion
Congress. Itpassedthe IndustrialRelations (Amendment)Act,1971,
whichdissolvedandliquidatedtheTrade UnionCongress,comprising
some 13 %ofthe country'slabourforce. TheActalsoempoweredthe
governmentto intervenewhenever intheopinion oftheMinistercon-
cernedathreatenedoractualstrikewouldifpermittedtooccuror
continue,beprejudicial to thedefenceofGhana,public safety,order,
morality,heal-hor therunningofessential services, or,beinjurious
to thenationaleco.iomy.
"TheMinister/couldlwiththepriorapprovalofthe Cabinet,
orderthat the strike orlockoutshallnottakeplaceorthatit shall
notcontinue". Thegovernment thusviolatedtheright tofreedomof
associationandassemblyguaranteedbytheConstitution,byusingquasi-
emergencylegislation.
- 117
DisregardofCourtdecisions
Busia's governmenton twooccasionsdemonstratedalackof
respectfor decisionsof theCourtsthatwentagainstit,whichwas
somewhatunbecominginagovernmentdedicatedto the ruleof law.
Oneinstanceoccurredwithinafewmonthsof thegovernment's
assumptionofpower, whenBusiadismissed568 seniorpublicservants.
Thiswas donepursuant toatransitional provisionof the 1969Consti-
tutionwhichempowered thegovernment todismisspublicservantshold-
ingofficeestablishedby,orin pursuanceof,documents, decreesor
orders ofthe previousmilitaryregime. One ofthedismissedofficials,
MrSallah,challenged the validityofhis dismissalonthe grounds
thathisoffice had beenestablishedbefore the coupthat created the
NLC. The Courtupheldhiscaseinadeclaratory judgement.
Busia reacted to thecourt'sdecisionwithacommentonthe
radio thatno courtcouldenforceanydecisionthat soughtto compel
thegovernment to employor re-employanyone,andevenindirectly
threatenedjudicial independencebyremarking thathewould notbe
temptedto removeajudge. Ofcourse, the firstpartof Busia's
commentwasmisdirectedas adeclaratoryjudgementdoes notrequire
enforcement,but the latterpart,containing the indirectthreatto the
judiciarywas aratherastonishingpronouncementfromoneheldupas
the symbolofdemocracyand the ruleof law.
The secondoccasionwhenBusiarejected acourt'sdecision
wasmoreserious thoughlesswell known. Thecase involvedthe
People's PopularParty (PPP), whichon twooccasionshad beendenied
by the InspectorGeneralofPoliceapermittoholdaprocessionin
protestagainstBusia's foreign policy. In yetanotherdeclaratory
judgementthe Courtupheldthe PPP'scontention thatits rightto
freedomofassembly,associationand movementhad beenviolated. But
Busia'sgovernmentdid not think fit to bringitselfwithinthe law
as declaredbythe Court. It never granted thePPPthe permit.In-
stead itoutlawedthe PPP under the CriminalCode (Amendment)(No2)
Act,1971, whichhadbeenenacted specificallyto prohibitthe re-
emergencewithinGhanaianpoliticsofeitherNkrumahorhisConvention
People'sParty. Since themembersof the PPPwerenot disqualified
as individualsbyanyexisting lawsfromparticipatingin political
activities,theiroutrightbanningamountedtoaselectiveapplication
ofquasi-emergencymeasures,so astodeprive thisgroupof their
grouppolitical rights.
VI. THENRC/SMCREGIME, 1972 - 1978
Busia'sgovernmentwasoverthrownbyanothercoupd'etaton
January13, 1972which installedthe regimeofthe NationalRedemption
Council,andlater the SupremeMilitaryCouncil (NRC/SMC).
Amajorhallmarkof thismilitarygovernmentwas itsconsistent
andprogressiveemploymentofpoliticalandcivil repressiontosilence
opposition to its rule. Itwas neverapopular governmentdespite
theconsiderablebutisolatedinstancesofsupport it receivedforthe
anti-neo-colonial miragecreatedby itstemporary repudiationofsome
- 118-
of thecountry'sforeigndebts, andalsofor the apparentlywellmeant
"OperationFeedYourself"agricultural
self-reliant
p:ogramme.
This
transientsupport, however,quicklydissipatedasboth che anti-neo-co-
lonial faqadeand theinitiallysuccessful agricultural
policycollapsed
withinafew yearsdue to incompetence
andcorruption,as well as the
poverty in ideas of the government.
The dissipating support of the public for the qovernment soon
turned into active hostility against the military because of the lat-
ter's growing unruliness and brutality against the helpless civilian
populace.
The brutalities of the military arose directly from the Armed
Forces (Special Powers) Decree of 1973, which vested members of the
Armed Forces not below the rank of sergeant, with police powers in
relation to the prevention and detection of crime. These officers
could either on their own or through persons authorised by them cause
the arrest of any person or tie taking of possession of any property
in the interest of "public order or the safety of persons or property".
Persons arrested could be placed under military custody, which a 1976
ruling of the Court held to exclude habeas corpus orders. Having arro-
gated to themselves the roles of police, prosecutor and judge the sol-
diersproceeded to brutalise helpless civilians and steal their proper-
ties (movable and immovable) in an unprecedented
-anner.
Human rights consequences
of the 1973 economic depression
The oil crisis and the severe international
economic depression
of 1973 had a devastating effect on the peripheral economy of Ghana to
which the military government was unable to respond. Active opposition
against the government,
originallylimited,began to mount,challenging
the legitimacyof the regime,whichhadnothingbutincreasingly
repres-
sivemeasures underemergencydecreestooffer.
Having been established
on the basis of the abrogation of civil
andpolitical rightsunder the NRC (Establishment)
Proclamation,
1972,
which had dissolved the constitutionally
electedNationalAssembly,
suspendedthe Constitution
andprohibitedpolitical parties,theNRC
beganas ade factoemergencygovernmentandremained so throughout
its 6year rule. Itretainedfullpowers to rulebydecreeand to re-
voke, repealorsuspend allenactmentsandrulesof lawexistingbefore
the coup.
Needless to say it retainedthe EmergencyPowersAct, 1961and
issuedthe NationalSecurityCouncilDecree,1972 underwhichthe
Nat czrnal FocurityCouncil hadresponsibility,
subject toNRCdirec-
tives, for takingmeasuresduringanemergency. TheArmedForces
(Amendment)Decree, 1972alsoempoweredtheCommander-in-Chief
ofthe
ArmedForcestn orderthe ArmedForcesto engagein operations for
purposesappearing tohim to be expedient.
But the governmentnever
claimedtobeactingunder anyof theseemergencypowers,whichwas
unfortunate,
sinceif ithad, its actionsmighthavebeenmoderated
throughsomeof the conditions itwouldhavehadtocomplywith.
- 119 -
Decreesofpoliticalandcivil repression
To secureitselfpoliticallyduringthe firsttwo yearsorso
ofseizingpower, the newmilitary regimeissuednumerousdecrees
grantingit sweepingpowers,inparticular tocurtail the civil and
political rightsofpotentialopponents, to control the newsmedia
anddetainpersonswithout trial. TheProgressParty (PP)and
Justice PartyClubs (Dissolution)Decree, 1972, outlawedclubs that
wereassociatedwith the rulingandoppositionparties in the dissolved
National Assembly. The Public Order Decree also of 1972 gave the
government, through the Commissioner for Internal Affairs and the
Police Force,effectivecontroloverpublic meetingsand processions.
Thegovernment foundthis controlusefulwhen, in itslastdays, it
selectivelyrefusedpermits toopponentsof itsproposed 'Union
Government', involvingthe military,police andcivilians.
The NRC (ControlofPublication)Decree, 1972, the Newspaper
Licensing Decree, 1973 and the NewspaperLicensing Regulations (L.I.
810) 1973 determined the extentto whichthe presscould be controlled
by thegovernment. The NRC (ControlofPublication) Decree 1972, made
it anoffence for anyperson "to publish,distribute,sell, offerfor
sale, or circulate anyof thenewspapers specified in this Decreeor
anypart ofsuch newspaperor to be in possessionofanysuchnewspa-
perorpartthereof ...". TheEcho andThe Pioneer,two newspapers
thatwerecriticalofthe governmentwerebannedunder thisDecree
withoutreasonsbeinggiven.
The NewspaperLicensing Decree1973provided thatnoprinting,
publishingorcirculationofanewspaperwas to becarriedout
"exceptunder and in accordance withalicensegrantedin respectof
suchpaperto the publisherthereof." The Commissionerfor Informa-
tionwasauthorised to issue, suspendor revokeanewspaper license.
And th.2 NewspaperLicensingRegulations, 1973 required thatnewspaper
licensesbe renewedannually. These licensingrequirementsenabled
the governmenteffectively to curtailpress freedom. TheLegon
Observer,for example,which hadhad to ceasepublicationin 1974made
an applicationin December 1977 foralicense to publish. Itwas
stillawaitingadecision6monthslater.
The governmentalsoused its controloverimport license
allocations to suppressfreedomofthepress outside the framework
ofthe abovementioneddecreesbyrefusingordelayingtheallocation
ofimport licenses, orgrantinginadequateonestopublisherswho
neededto importprintingmaterialsandequipment toenable themto
publish. By theendof thismilitaryregime onlytheCatholicStandard
had notbeeneffectively suppressed.
Included in thegovernment'semergencyrule legislationwere
theProhibitionof RumoursDecree,1973 andthe SubversionDecree 1972
(NRCD60) as amended in 1973 and 1976,whichcreated severalnewoffen-
cesagainstthe state. TheRumours Decreemadeit acrime for any
personto publishor reproduceany statement,rumourorreportwhich
was falseand likely to causefearoralarmordespondency to the
publicor to disturbthe publicpeaceorto causedisaffectionagainst
the/NRC/ andthe ExecutiveCouncil amongthepublicoramongmembers
- 120 -
oftheArmedForcesorof thePoliceService Nothavingenjoyed
muchaffectionfrom thepeoplethe government RumoursDecreewasob-
viouslydirectedatthemajorityofGhanaianswho weregrowing increas-
inglycritical ofthe militaryrulers.
TheSubversionDecree, 1972, includedamong subversiveacts,
robbery; stealingor smugglingof cocoa,diamonds,goldandtimber;
stealingofpublic fundsor ofmoneymeant forthepurchaseofcocoa;
theftofhospitaldrugs; bribing toobtain, oracceptingabribe, to
give an import license; dealingin foreign currenc,; hoardingofessen-
tial goods; wilful damagingof publicproperty; andorganisingor in-
citingageneralstrike, Convictedpersons under thisdecreecouldbe
shot byfiring squador imprisoned from15 to 30 years. A1976amend-
mentto tnisdecree providedthatapersonwasguiltyofsubversion
who"knowingorhaving reason to believethatany otherpersonhas
committedorhas beenconvictedofsubversion,concealsor harbours
or in anywayaids suchperson,withthe purposeofenablinghimto
avoidarrestor the executionof asentence." Thisamendmentwas
obviously intendedto enable the regime to prosecute DrKofi Awoonor,
whohad been underdetentionon suspicionofhaving aided in thisway
one Brigadier Kattahwhowaswantedby thegovernment foralleged
subversiveacts,
Militarytribunalsand subversion trials
Theoffenceofsubversionwas triablebyamilitarytribunal
(SpecialCourts)whosedecisionswere final andnot subjectto appeal.
Underthe NRC/SMCregime, these tribunalsgainednotorietyforviol-
ating all acceptednormsofafair trialwhilemaintaining afagadeof
legality and justicethrough the presenceofJudgeAdvocatesand legal
representation. 'he courtscomprisedanumberofmilitaryofficers
andaJudgeAdvocate. Themilitarymemberswere judgesof lawas well
as offact. TheJudgeAdvocatemerelygaveguidanceonissuesof law.
Observationofany of thesetrials made itclear fromthe
beginning that the guiltof theaccusedwaspresumedbythepanel, and
thatconvictionwas predetermined,as allprocedural rules thatmight
favourthe defencewere flouted,validlegalobjectionsof thedefence
arbitrarilyoverruledand the prosecutionallowedlatitude todoas
itpleasedknowingthathoweverunproventheaccused's guiltmightbe,
conviction wascertain in the end.
Manyof the convictionswerebasedonconfessionstatements
obtainedunder tortureand ill-treatmentduringlongpre-trial deten-
tions.
Thetrialof exCapt.KodjoTsikata
In one caseinvolvingexCapt.KodjoTsikata,andothersin
1976, the tribunal, atthe requestof theDPP, heardincamerathe
evidence supportingthe allegationoftorture andintimidation. When
thetribunalwasre-opened to thepublicthe Presidentofthe Panel
ruled againstthedefenceandadmittedthe confession statements,
though it is believedthe torturewasmorethanproved tohavebeen
used.
- 121 -
Theveil oflegalitybehindwhich thesetribunalsoperatedwas
tornawayinthe middleof this trialwhenall thecounsel for the
defendants, inararemove,withdrewtheirrepresentationonthe
groundsthat theirpresencein realityservedno usefulpurposeto
their clients,butrather contributedto the falseappearanceof fair-
nessand legalitywhichonlybenefited thoseengagedin amockeryof
justice. Thoughsomeof thedefencelawyers laterreturnedto repre-
sent theirclients, the GhanaBar Associationresolvedafterthe trial
thatitsmemberswould no longerrepresentdefendantsatanyof these
tribunals.
Deathsfromtorture andarbitrarydetentionsof adversaries
Victimsofthese triaswerein alimitedsense, fortunate,
first inhavingsurvived the tortureand secondlyin gettingachance,
albeitadubious one to defend themselves. The publicitysometimes
put unwantedpressureon thegovernment. Somedetaineessuchas
Mr JosephdaRocha andMrE.D. Allotey,werenot sofortunate; they
diedunder interrogation, the formeronApril 1,1972 and the latter
onMarch 2,1976.
The linchpinof thegovernment'semergencylegislationwas the
PreventiveCustodyDecree, 1)72 (NRCD2)whichwas the seconddecree
of the regime. Thisdecreeempoweredthe militaryregimeto "autho-
rise thearrestanddetentionofanypersonin respectofwhom they
/are/ satisfiedthat it /is/ in the interestof nationalsecurityor
in the interestof thesafetyofthe personso todo" Apersoncould
be detainedunder thisdecreewithouttrial and insuchplaceand for
suchperiodand subject tosuch conditions as themilitarygovernment
maydirect. Thosedetainedwere alsorequiredtohe listed inan
Executiveinstrumentcontaining the orderfor theirdetention. However,
itwasnormal for peopleto bearrestedanddetainedoutsidethepro-
visionsofthisdecree, inapurelyarbitraryfashion.
BeginningfromJanuary13, 1972when the militarytookover,
thousandsofGhanaianswhowereconsideredsupportersoftheousted
civiliangovernmentwerearrested. Althoughsomewerereleasedlater,
thosedeemed likelytoundermine thenewgovernmentwerekept incus-
tody. In subsequentyears, the governmentcontinued to arrestand
detainpeopleregardedaspotential troublemakers. Theseamounted
to some 450atthe fall of theregime.
Therewas awaveofarrestsanddetentions,beginningin
November1975and involvingabout200 militaryandex-militaryper-
sonnel aswellas civilians. Somt ofthose detainedwereallegedto
havebeenengaged in subversiveactivities,butmostofthemwere not
evenacknowledgedas havingbeendetained. Theywerenotarrestedin
accordancewiththe requirements ofthe ProtectiveCustodyDecree,
andwere justheld incommunicadoand withoutcharges,in some cases
for several months, inothers forseveral years. Mostofthose arrest-
edwere Ewes fromthe VoltaregionofGhanaand itwasonlyonthe in-
terventionsofchiefs from thisregion that the governmentfeltbound
to acknowledgecertaindetainees andpreferchargesin ordernotto
appeartobepersecuting Ewes.
- 122 -
Reconstitution e the r~gime under a "Supro.te Military Council"
Amonthbefore this newwaveofarreststhe militarygovernment
hadbeenreconstituted in amannerthat concentratedpowerin theHead
ofStateand afewcolleaguesin abodycalledthe SupremeMilitary
Council (SMC). The NRC was charged with the day-to-day administration
of the government, subject to the direction of the SMC.
This move by the military rulers was intended to entrench tile
military politically at atimewhentheir incompetence and corruption
waswidely andopenlyrecognised. The subsequentarrests anddeten-
tions in the month following the creation of the SMC signalled the
government's determination to crush the opposition that was mounting
against it. From this time until 1978 the SMC was to escalate its
systematic repression in direct proportion to the growing opposition
to its continued rule,deeplyunderscoringits completedisregardfor
basic rights. Alreadythe Subversion Decree of 1972 had so vaguely
defined the offence of subversion, which almost all of those detained
were tried for or suspectedof,as to covervirtuallyeveryformof
protestagainst the military.
Finalityofdecisionsofmilitary tribunals
In addition, the Subversion (Amendment) (No 2) Decree, 1973
emphasised the finalityof the decision of military tribunals, expli-
citlyexempting themfrom judicialreviews. Thiswasindirectresponse
to the decisionoftheHighCourt in TheState v. Ofosu Armaat affirm-
ing its jurisdictionoverinferior courts includingmilitarytribunals.
According to the Decree "No Court shall entertain any action or proceed-
ings whatsoeverfor the purposeofquestioningany decision,judgement,
findings,orderorproceedingsofanymilitarytribunal ...;and for
the removal ofdoubts; nocourtshall entertainanyapplication foran
orderorwrit in the natureofhabeas corpus,certiorari,mandamus,
prohibitionor quo-warrantoin respectof anydecision,judgement,
findings,orderorproceedings ofany suchTribunal".
Thisdrasticcurtailmentof the jurisdictionoftheordinary
courtsin favour ofmilitarytribunalswenthandin handwithnumerous
politicalarrests,detentionsand trials.
TheSMC's persistant thwartingof theexerciseofbasic civil
rights, came intoplayonceagain,when itissued theCriminalProce-
dure (Amendment)Decree in1975. Thisdecreepurportedto repeal
Article15(2)of the Suspencied Constitution underwhichpersonsarrest-
ed, restrictedordetainedwereentitled tobe informedimmediately
in alanguagethat theyunderstood,of the reasonsfor sucharrests,
restrictionordetention andof theirright to consultcounseloftheir
choice. Thepurposeof thisdecree wasto overruleacourt decision
madeearlier in the year,holdingthat the legalguarantee offunda-
mentalhuman rightsand freedomsunderthe 1969Constitution and in
existenceeven beforethenwasnotremovedwith the suspensionofthe
ConstitutionbytheNRC. TheCourt arguedthat thisguaranteewas
derived fromtheCommonLawwhich the NRC haddeclaredremainedin
force.
- 123 -
Growingopposition
Oppositiontothe regimemeanwhilecontinuedtogrow,reaching
acrisispointinMay1977whenacute foodshortages andspiralling
inflationbroughtqtudentsfromall threeuniversities into the streets
demanding the resignation of the SMC regime and the transfer of power
to a caretaker government headed by the Chief Justice, pending a
return to constitutional rule. The government reacted by closing
down all three universities, and dismissing the Chief Justice as well
as the Governor of the Bank of Ghana and some medical professors. A
general strikebyprofessionalbodies immediatelyensued, involving
ashut-down ofhospitals and acall for immediatereturn to civilian
rule,
In reaction to this strike the governmentissued the Profes-
sionalBodies Registration Decree,1977, withdrawing legalrecognition
fromthe professionalbodies anddisabling themfromtakingdisciplina-
ryactionagainst anyof theirmemberswhomightbe inclinedto disobey
the strikecall.
TheUnionGovernmentdiversionandrelatedrepression
On July 1, 1977, however,the SMCappearedtobow to pressure
byannouncing aprogrammefor return tocivilianrule underavague
"UnionGovernment" conceptwhichexcludedpolitical parties,but
included military and police and some civilian representation, Are-
ferendn to be held on this proposal was preceded by the setting up of
an Ad Hoc Committee to collate and submit proposals from the public on
the form which this concept of government should take.
The mandate of the Ad Hoc Committee excluded the acceptance
ofopposingviews and the government didall itcould to suppress
freediscussionsof this 'newconcept'ofgovernment. Aseminar
organisedby the Professional BodiesAssociationonthe issuewas
violentlydisruptedbygovernment hired thugs. When thevictims
soughtto takecourtaction againstthoseof the thugswhowere iden-
tified, thegovernmentissued the UnionGovernment (CivilProceedings)
Decree, 1977 tSMCD 139), banningthe courtsfromentertainingany
suchaction. Subsequently the governmentsecretlyrevoked thisdecree;
however,to the end, it consistentlyinterferedwith the courtsystem
and the rightsand remediesassociated withit.
Anotable exampleof thisinterference involvedhabeascorpus
applicationsbroughtbytheGhanaBarAssociationon behalf ofthe 450orso
personsindetention. Under the ProtectiveCustodyDecree, the right
to ahabeascorpus applicationcouldbesuspended,and the government
purportedto havedone so in the caseofsome detainees. However,a
large numberofdetainees, someofwhomhadbeenincustody forseveral
years,werenotheld under theProtective CustodyDecreeoranyother
lawwhatsoever, Thecourt'shabeascorpusorderin respectofapprox-
imately 178of this lattergroupofdetainees, resulted initiallyin
the releaseof someofthem. Butthe governmentsubsequentlyre-
arrestedthesepeopleagainand refusedto obey thecourtorder.
- 124 -
Sinceitisgenerallyacceptedthat thecourtsare theguar-
antorofbasicrights for individuals,
itshouldbesaid thatthe role
playedbytheGhanaiancourtsduringthis periodwascorrectlydes-
cribedbyMrJusticeTaylor (ashe thenwas) inRvInspectorGeneral
of Police (exParte Ibrahimalias Telley)/1977/
1GLR7atp. 12 when
he said "inthe taskofdispensing
justice theHighCourtisactingas
asort ofagent,butmorecorrectlyasaservantofthe SupremeMili-
taryCouncil".
HavingsetGutt - imposehis 'UnionGovernment'
onthepeople,
theheadofstate, GeneralAcheampong,
attempted tosuppress all those
opposed toit. Nevertheless
the variousoppositiongroups, feeling
moreconfident,proceededtoorganise,resultingin theemergenceof
thePeople'sMovementForFreedomand Justice (PMFJ), the ThirdForce,
and theFront for the PreventionofDictatorship.
Public meetings
of theseassociations
wereconsistently
brutalisedoygovernmentagents,
leading to the deathofat leasttwopeoplein oneincidentatKumasi,
andtonumerousother injuries.
Afterahighlydiscredited
referendumon theUnionGovernment
proposal,duringwhichtheElectoralCommissioner
barelyescapedan
attackonhis officeby soldiersandwas subsequently
dismissedfor
attempting
to ensureafairprocedureforcounting theballotpapers,
Acheampongissued the VoluntaryAssociation
(Prohibition)
Decree, 1978
outlawingthe threemain opposingorganisations
on thegroundsthat
theyhadbeen rejectedin the referendumandthereforehadno justifi-
cationforcontinuing to exist. Leadingmembersof theseorganisations
whowerenot quickenough to fleethecountrywerearrestedandde-
taineduntil releasedby the newheadof the reconstituted
SMC.
VII. SMCUNDERAKUFFO, 5July1978 - 4June 1979
Akuffo's takeover fromAcheampongas headof statewas a
victory for the forcesdemandingareti-nto constitutional
rule.
Thiswasimplied inAcuffo'sbroadcasttothe nationuponhis takeover
thatoneofthe reasons Eor Acheampong's
ousterwashis conversion
of governmentintoa"oneman show"duringthepreceding fewyears.
Returnto civiliangovernmentbeingthemajorpolitical issueatthe
time,AKuffo's statementwasunderstoodbymost tomean thatAcheam-
ponghadbeenthe stumblingblockin thewayofpoliticalchange.
Heice fromJuly5,1978 untilJune4,1979 whenAkuffo's
governmentwas itselfoustedby thelower ranksoftheArmedForces
ledbyFlt LtJerryRawlings,its maintaskwas to establishthe
constitutional
and politicalconditionfor areturntocivilian
government.
Preparation
forcivilianrule
Therestoration
ofcivilandpoliticalrights, shelvedsince
1972,was acrucialaspectof thepreparation
for returntocivilian
rule. In thisconnection, theAkuffogovernment,
amongotherthings
grantedanamnesty toallpolitical refugeesandexilesandalso
madeaseriesofordersreleasingsomepoliticaldetainees.
- 125 -
As farasfuturedirectparticipationingovernmentwascon-
cerned,however,some 105 persons consistingmostlyof formerpoliti-
cians,wereprohibitedfromrunning for electionorholdingpublic
office,byregulations issuedin 1979byAkuffopursuantto the
ElectionsandPublicOfficesDisqualificationDecree,1969. Those
disqualifiedweregenerallypoliticiansandpublicofficialsconnected
witheitherthe Nkrumah,BusiaorAcheampongregimes,whohadbeen
foundguiltyofgraft,corruptionor some formofabuseofpublicof-
ficebyvarious commissionsofenquiry.
Areviewtribunal whosedecisionswere finaland not subject
to judicialreviewwas setupto hearclaimsof exemptionsfromdis.-
qualification.
Forsome ofthosedisqualifiedparticularly thoseconnected
withBusia'sgovernment,therewas littlecredibleevidenceoftheir
corruption orotherabuse ofpublicoffice.
However,havingillegallyoverthrownBusia'sgoveznment, it
wouldhavebeentoo idealistictohave expectedAkuffoandhisSIAC
colleagues to haverelinquishedpowerunderconditionswhich could
haveplacedtheir fateat themercyof theirpoliticalantagonists.
ThedisqualificationofformerpublicofficialsconnectedwithBusia's
governmentwas anessentiallypoliticalmove. Althoughunableto
stand for electionsorholdpublicoffice,asignificant numberof
thosedisqualifiedcontinue to playprominentroles in thebroader
politicsof thecountrytoday.
The 1978 declarationofemergency
Heavydevaluationof theGhanaiancurrencyin 1978, andthe
introductionofanausteritybudget forthe fiscalyear1978-79,
sparkedoffaseriesofworkersstrikesandlockouts (80inall) over
wagedemands,betweenOctoberandNovember1978. These strikesresult-
edinadeclarationofemergencyin November,1978 bythegovernment
under the EmergencyPowers Decreeof 1978 (whichhadrepealedthe
EmergencyPowersAct of1961). Thisdecreeprovidedamongother
things for the suspensionofbasiclegal rightsandremedies, includ-
ing applications for habeascorpus and the prercativewrits. The
decreealsomadeoffences committedunderitorunder anyregulations
pursuant to it triableby amilitary tribunal.
Significantlytherewerenoformal complaintsofsystematic
or excessiveabuseofhumanrights during theeightweekperiodof
the emergency.
An interestingaspect thoughwasthe government'sannouncement
in reactionto thestrikes, thatit wouldpursuethe objectivesof
the controversialbudgetto the letter,andthat "... anyattemptto
sabotagethemshallbeseverelydealtwith ... Accordingtothe
government"strikesandotherprotestsincludingdamagetoproperty
to secureredressoutside the frameworkofnormalprocedureshallbe
regardedascriminalacts againstthe securityofthe stateandwill
bedealtwithaccordingto therelevantlawsof thecountry".
- 126 -
The government's
pronouncements
blurred the distinction between
threats to the interests of the state, and the threats to its own
existence which were posed by the challenge to its economic measures
through the strike actions which followed its introduction of the 1978-
79 budget.
In genoral the Akuffo regime can not be said to have been guilty
of systematic violations of human rights, such as would explain or
justify his subseque!nt execution, along with other former SMC members,
upon the soisure o powt-r Lv ti- AFRC.
VIII. TilE APRU 1W , .1 JUNE - 24 SEPTEMBE 1979
On June .4, 11)7h the Akuffo overnment was overthrown after
heavy fighting in the capital Accra, between the bulk of the lower
ranks of the army, and troops loyal to Akuffo led by the officer corps.
The Armed Forces Povolutionary
Council (AFRC) was formed with Flt Lt.
Jerry Rawlinq; a!; its Chairman.
"House cleaniii(I objective"
While pledging itsolf to complete the preparations started by
the Akuffo regime for return to civilian rule, the AFRC stated that it
had eUie-.ed power for the sole purpose of redeeming the image of the
Army, which bad been tarnished by the misdeeds of previous military
regimes. In this connection the AFRC scught to do some "house cleaning"
particularly
',jthin the Armed Forces to prevent senior officiJ-' known
to hav, grossly abused their position in government fro=; escaping punish-
ment.
Pursuant to these objectives, the AFRC quickly ordered the
arrest of about 100 persons -- ,nprising former high officials, both
military men and civilians who had occupied executive and managerial
positions in previous adm*.:istrations,
as well as some wealthy busi-
nessmen.
OnJune16, 1979, the formerHeadof StateGen.Acheampong
and Maj. Gen. Utuka, headof the BorderGuardswereexecutedaftera
military tribunal whichhad notbeen establishedbyanydecree found
them guilty of "using their position to amass wealth while in office
andrecklessly dissipating statefundsto the detrimentof the coun-
try". OnJune 26, 1979, 6other seniorofficers, includingtwoformer
Headsof State,Gen'sAkuffoandAfrifawerealso executedonasimilar
charge.
Trialsunder theAFRC
Subsequentlythe AFRCissuedadecreeestablishing
military
SpecialCourts for the trial ofthe remainderofthoseunderarrest.
Thedecreegave the Special Courts jurisdictionto try themforthree
main categoriesof economiccrimes. These were "with intent to sabo-
tage the economyofGhana ...selling "bovethecontrolledprice",
"improperdemandoracceptanceofcompensation,
consideration
orper-
sonal advantage in respect of the performance of any public duty", and
- 127 -
"intentional or reckless misappropriation of, or cause of loss or
damagetopublic property".
Members of the Special Courts were to be appointed by the AFRC
orby anyotherbodyauthorisedbyit; and theCourtwas to beguided
by the rules of natural justice in its procedures and decisions. The
AFRC reserved the power to review and confirm the decisions of a Spe-
cial Court and to "reduce the penalty if it thinks appropriate". De-
cisions of the AFRC and Special Courts were final.
The Decree allowed the defendant to be present at the trial,
to hear the changes proferred against him and to enter a plea in this
regard; to call witnesses "whose attendance can, having regard to the
exigencies of the times, reasonably be procured", to submit relevant
evidence; to cross-examine any prosecution witness; to address the
Court and to answer any case made against him. A later amendment to
the decree, however, provided for the trial in absentia of persons
outside Ghana or who otherwise find it impossible to be present at
the trial. Persons found guilty under the decree were "... liable
to suffer death by firing squad or to imprisonment with penal
labour for a term not less than three years and the confiscation to
the state of any assets found by the Court to have been illegally or
dishonestly acquired by such persons".
It has been estimated by Amnesty International that during
the period between August and September, 1979, "at least 55 military
officers, former officials and wealthy businessmen were sentenced to
heavy prison sentences, ranging from 6 months to 95 years at the
principal Special Courts at Pednase Lodge, near Accra", and that pos-
sibly as many as 100 were also sentenced to imprisonment by regional
Special Courts. A further list of 6H individuals sentended in absen-
tia, under the amended provision of the Special Courts Decree, 1979,
to death by firing squad or to various terms of imprisonment, was
published by the AFRC shortly before the return to civilian rule in
September 1979.
Charges of human rights violations
Numerousaccusations havebeenmadeofviolations ofhuman
rights stemming from the activities of the AFRC. Examination of the
SpecialCourtsDecreerevealsafailure to specifytheoffencesfor
whicheach penialty couldbe imposed. AmestyInternationalcontends
thatall thetrials held under the AFRC, including those leading to
the8executions,were unfair to the extentthatthey werehurriedly
carrieloutwithinsufficient judicial investigationbefore the hear-
ings.
Othercriticismsare evenmore fundamental. It is alleged
that,in additionto somebeingbeatenbytroops, defendants appear-
ingbefore the SpecialCourtsweredeniedcounsel andarigitof
appeal, contraryto the termsofthe SpecialCourtsDecree; further,
thateven those acquittedby theSpecialCourts continuedtobeheld
indetention. It is saidthatin thecaseof somedefendants the
SpecialCourts simplysentencedthemwithouttrial. Somedetainees
are allegedto havebeenincarcerated under arrestwarrantsbearing
- 128-
thesignaturesof unknownpersons. If true,thesewere violationsby
theAFRCofstandards ithad set foritself.
Todateit has beendifficult to adduceconcreteanddirect
evidence insupportofthese allegations,because theproceedingsof
the Special. Courtswere heldin completesecrecy. This,ofcourse,
is initselfan indictmentof the operationsofthe SpecialCourts.
IX. AFRC, ATRUEEMERGENCYGOVERNMENT
TheAFRCwasatrue emergencygovernment,distinctin its
membershipandobjectivesfrompreviousmilitaryregimesin Ghana.
Thispeculiaritysteammed from thedevelopments that led toits esta-
blishment.
WithAcheampong'sousterandAkuffo'sannouncementthat
Acheamponghadconvertedgovernment intoa"oneman show",Ghanaians
awaited, thoughwithmuchscepticismademonstrationofbettergovern-
mentunder Akuffo. Seniormilitaryofficials, representedthistime
byAkuffo,who hadbeen alternatingcontrolofpoliticalpowerwith
thecivilian elite,hadyetanotherchance to demonstrate theirabi-
lityto raise ratherthan lower theeconomicand politicalcondition
of the country.
NodoubtAkuffowasexpected torestore civiland political
rights inadditionto makingprogressin tackling theeconomy. But,
perhapsofmoresymbolicvaluethananythingelse, thoughcrucial
nevertheless underthe circumstances,Akuffowasalsoexpected to
makeAcheampong andsomeof hisclose associatespubliclyaccountable
for the corruptionofhis regime. Akuffo failedto take this step;
he neverbroughtAcheampongoranyofhis notorious colleagues to
trial; noteven for thechargeofeconomicandadministrativemiscon-
ductwhichhehimselflevelledagainst them.
ThisconductofAkuffo'sprovedfatal tohim. Itwasinter-
pretedbythepublicas amove to setin motionapatternofprotection
forthose (includingAkuffo)whowereseenatonceas culpritsandbene-
ficiariesof thecountry'seconomicandpolitical crises.
Thisviewappeared tobeconfirmedwhen,in April1980,the
ConstituentAssemblydraftingthethirdRepublicanConstitutiondeci-
dedtoindemnifyall officialsof theSMC, aswellasofprevious
militaryregimes, fromanycourtactionthat couldbebroughtagainst
them.
Thisdecisionmetwithwidespreadprotest fromthelowerranks
ofthe armedforcesand from civilians. Withinthe armythe outrage
againstaperceived 'rulingclass' conspiracymanifesteditselfin an
abortivecoupbyRawlingsonMay15, 1979. Shortlyafterwards,how-
ever,onJune4,1979 heledthe successfuluprisingwhichbrought
theAFRCinto power.
- 129-
Thesupport for theJune4revoltwasmassive andevidencedby
thenumerousandwidespreaddemonstrationsofsolidaritywiththe lower
rankingsoldiers. Thestage hadthusbeen set foradeepstructural
crisis, inwhichthe beneficiariesofan acknowledgedsystemofpatron-
age andprivilegewereplacedfor the firsttimeon thedefensive.
After thedustof theinitial violencesettledandthedecision
wastaken tobringto accountsomeof the leadersandbeneficiariesof
the rejectedorder,the questionaroseofhowthis shouldbedone. For
therulinglowerrank officerswhose training, in contrastwiththat
ofjudgesand lawyers,hadconditioned themtoeliminate identified
enemieswithdespatch,executionorotherpunishmentwithouttrial
bypolitical decisionseemedanaturalchoice.
Therewere,however,otherforces andinterestsbothfromwith-
in andwithout,atplay. Inthe resultthe AFRCfeltconstrainedto
set up theSpecial Courts,withjurisdiction to try thosewhohad
benefitedfromthe systemofprivilegeand patronage. Theverynature
ofthis jurisdictiondisqualifiedtheexistingjudges andlawyers,
whowere themselvesconsideredtobe beneficiariesof the systemon
trial.
It is hardlysurprisingthat, inreturn, themembersofthe
existinglegal orderwere,withtheexceptionofafew sympathisers,
vociferousin accusingthe AFRCofviolatingthe ruleof lawandhuman
rights.
Deprivedofasympathetic judiciaryandbarwhocouldhave
broughttheir trainingto bearuponthe proceedingsof the Special
Courts, the SpecialCourts,composedlargelyof sergeantsandwarrant
officers,committedserious errorsoflaw ai.d justice.
All the same, in the streets andon the universitycampuses,
slogans suchas "revolutionis notmade in theCourt room"expressed
theordinaryman's revocationof confidenceinestablished legalpro-
cedure,butalsoreflectedhis reactionto thehostilityand lackof
sympathy fromthe professionalmembersofthe legalorder towards the
AFRC. Inthe result,atthe executionsite, chantsof "fix.ish them
all", and "let thebloodflow" expressedtheordinaryman's approval
ofthe rough justiceofthe SpecialCourts.
The AFRCperiodclearlysignifiedanationreachingbackfor
aresidueofenergy toriditselfof acripplingsocio-economicdisease
thatwas fastrenderinglife meaninglessfor mostpeople. Itwas a
majorreactionbythe activesectionofapeoplesubjectedto asys-
temofmassivecorruptionandpoliticalandadministrativeincompe-
tence,asystemwhichwouldnotdisintegrateofitsown accordbut
ratherwassustainedbyincreasingly repressivemeasuresandarbitrar-
iness.
Inadequateas theywere theAFRC'sinvestigations into the
acquisitionofassetsbygovernmentofficialsandcertaininfluential
individuals,aswellasothermeasurestakenbythemsuchas their
ultimatumto taxdefaulters tomakegoodthe arrears andto hoarders
ofessentialcommodities tobringoutthesecommodities exposeda
Thedepthofthe corruptionandmaladministra-
disquietingpicture.
- 130 -
tion revealedwasbeyondanything imagined,aswas the immensityof the
personalfortunesamassedillegallybyatinyminorityof the peopleat
theexpenseof thevastmajority.
In additionthe AFRChas to be creditedwith thereleaseofthe
remaining political detainees held under the previous regime.
Questionsof jurisprudence raisedby the foregoingarewhether
humanrightsdoctrinecan recogniseapeoplein legitimate uprising,
and ifsowhatare the legitimisingfactors and whatgives themthe
law-makingcapacity that is consistentwith the purposesandprinciples
ofhuman rights.
X. T:E.TUIRDREPUBLIC
TheAFRC handedoverpoweronSeptember 24, 1979 to acivilian
governmentheadedbyDr Limann, undertheThirdRepublican Constitution
of 1979. ThisConstitutionwas draftedbyaConstituentAssembly set
up in Decerber 1978 with a membership of 136, comprising 61 elected
representativesofdistrictcouncils, 33 nomineesof theSupremeMili-
taryCouncil under Akuffo,and42 representativesoforganisations
such as tradeunions and professionalbodies (seeJ.E.Goldschmidt,
"National and Indigenous Constitutional Law in Ghana", Leiden, 1981,
pp.158-159). The Constitution was accepted by the AFRC and promul-
gated by the Constitution of the Third Republic of Ghana (Promulgation)
Decree, 1979 (AFRCD24). Itcontainsseveral detailedprovisionson
individual liberties. Chapter 6,whichcomprisesarticles19-34 con-
tains the civilandpolitical rights. Theseinclude the rightto life;
the right to personal liberty - i.e. protection against illegal incar-
ceration 'Articles21, 26, 34);protection fromslaveryand forced
labour, inhuman treatment,arbitrarydeprivationofproperty; rights of
privacyandotherpropertyrights (Articles22, 23, 24, 25). Articles
27, 28, 29 and 30 guaranteefreedomsofconscience,expression,assembly
and association, anaofmovement. Article 31 incorporatesthe principle
ofnon-discrimination,whileArticle 32 guaranteesequalrightsfor
mothers,spouses andchildren inneedofspecial care.
ByArticle 35, the HighCourtis empowered,throughthe useof
writs andordersin thenatureofhabeascorpus, certiorari,mandamus,
prohibitionand quo-warranto,ultimately to ensuretheenjoymentofthe
rightsand libertiesguaranteedbythe Constitution. Anindependent
judiciaryis guaranteedin Chapter 12.
Articles33 and34 of the Constitutionprovidefor thenature,
use andcontrolof emergencypowers,in amannercalculatedto protect
the rightsofthe individual savewherehehas actedorthreatened to
actin amanner:'calculated todeprivethecommunityofthe essentials
oflife", or "whichrendersnecessarythe takingofmeasureswhichare
necessaryfor securingthepublicsafety, thedefenceofGhana andthe
maintenanceofpublicorderandofsuppliesandservices essentialto
thelifeof thecommunity.
Thegovernmentofthe third republichasnotdeclaredastate
ofemergencywithinthe terms oftheConstitution.
- 131 -
Thisstudyof statesof emergencyinGhanaoutlinesthe main
eventsupto mid-1981. Since then, as iswell known, in 1082 there
wasanothermilitarycoupled againbyFlt Lt Rawlings,whichesta-
blishedarevolutionarygovernment. TheInternational Commissionof
Jurists is not in possessionof sufficientreliableinformation to
carry the study beyond 1981.
XI. CONCLUSIONS
Ghana was the firstcolonial territory inAfricato winits
independence. Theoutstanding featureofits shorthistoryhas been
the number of changes of regime which have occurred and the alterna-
tionbetweenmulti-party parliamentaryregimesand authoritarian
governments, usually militaryin character.
Ghana, unlike some other Africah countries, has a well-educat-
ed elite, an active and determined legal profession which has courage-
ously resisted authoritarian repression of human rights, and an able
judiciary. The legal profession has, indeed, played an important role
in the re-establishment of civilian regimes, following bozh the dicta-
torial period at the close of Nkrumah's regime and collapse of the
discreditedmilitary regimes.
The graveeconomicproblemsfacing thecountrywithwhich
no governmenthas successfully contended,has led to repeatedperiods
ofsocial unrest, fannedby resentmentagainstcorruption. In conse-
quence,governments ofall complexionshave resortedeitherto declar-
edstatesofemergencyortowhat has aptlybeen describedas quasi-
emergency legislation, providingforexceptional powersand restrict-
ingbasic humanrights and fundamental2reedoms.
As elsewhere,the mostsevere repirssionhasoccurred under
militaryregimes. These regimes,by theirnatureand from theoutset
areemergencyregimes. Themilitaryforces seize powerin thebelief
that theirmilitarydisciplinewillenable themtoprovideamore
stableand effectivegovernment. For the mostpart these regimes
have fared nobetter thanthe civiliangovernments theyhavereplaced.
Aswhateverinitialpopularity theyhavehadhas waned,theyhave
becomeincreasinglyoppressive,using everstrongeremergencypowers
notso much to preserve thesecurityof the stateas to seek to pre-
serve theirown regime in power.
The twoexceptions tothis picturehavebeenthe firstmili-
tarygovernmentwhich,whenoverthrowingNkrumah, promisedto return
the ccuntrytodemocraticconstitutional rulewithin 3years,apro-
misewhichthey fulfilled. Thesecondexceptionwas thefirstcoup
ledbyFl LtRawlingswhodeclaredhis intentionofreturningthe
country to civilianruleafteraclean-upof thewidespreadcorrup-
tion,an undertakingwhichwasalsoimplemented. It remains to be
seenwhatwillbe theoutcomeofthepresentrevolutionaryregime
underF1 LtRawlings'leadership.
- 132 -
Ghanaisoneof the few countriesinAfricainwhichrepeated
attemptshavebeenmadetoestablish afreeparliamentary
democracy.
Theextentto whichciviliangovernments havefounditnecessaryto
haverecourseto statesofemergencyand the frequencywithwhich
theyhavebeenoverthrown, calls inquestiontheviabilityof this
formofgovernmentindevelopingcountriesfacinggraveeconomic
problemsand tornbyethnicand socialstrife.
-0-0-0-0-
- 133 -
HUMANRIGHTSANDEMERGENCYLEGISLATION
GREECE 1967-1974
CONTENTS
Page
I. INTRODUCTION ........................................... 135
II. THERIGHTTOLIBERTYANDSECURITY......................... 137
III. MILITARYCOURTS ........................................ 138
IV. ADMINISTRATIVEDISPLACEMENT............................... 142
V. DEPRIVATIONOF CITIZENSHIP................................ 143
VI. THE PURGINGOFTHEADMINISTRATIONANDJUDICIARY........ 145
VII. CONCLUSIONS ............................................ 147
APPENDICES :
A. Article91 of the1952 Constitution ....................... 150
B. RoyalDecreeNo. 280/1967.................................. 150
C. SuspendedArticlesofthe 1952 Constitution..............151
D. ConstitutionalAct "Alpha"(No.1)........................ 154
E. ConstitutionalAct "Beta"(No.2)......................... 155
F. TheCaseAgainstGreeceintheCouncilofEurope ....... 157
G. StatutoryDecree188/1969................................. 165
H. ConstitutionalAct "Eta" (No.8).......................... 165
I. ConstitutionalAct "Delta" (No.4)........................ 167
J. ConstitutionalAct "KappaDelta" (No.24)................168
-0-0-0-0-
- 135 -
I. INTRODUCTION
In the early hours of 21 April 1967 a small group of army
officers in a swift, well-planned coup, overthrew the conservative
government of Panayiotis Kanellopoulos and established a military re-
gime which, with some changes at the top, lasted until 23 July, 1974.
Thus Greece overnight acquired the dubious distiction of being the
first West European country to fall under dictatorial rule after
the Second World War. The military coup had been preceded by a rather
tumultuous period of political events and uncompromi sing political
crise . The main protagonists were young King Constantine and the
leader of the Centre Union Party, George Papandreou, a veteran com-
bative leader wio in iol after more than three years of ceaseless
politica1 activity put an end to the almost uninterrupted post-war
rule of the right-wing by gaining control of the country with a
landslide of 53 of the popular vote. In less than lb months,
George Papandreou was forced to resign after an open confrontation
with the king over the issue of wio woould retain control of the armed
forces, i.,e. whether the kig or the elected prime minister had the
right to appoint the lhdintur of defence.
ib is, aid rob IeqLoot manieuvres of the mnarch that strained
the letter and the spirit of the Greek Constitution gave rise to
massive popular deoncstrations in Atlens and other large cities. The
people felt that the popular will was being s'vurted. The crisis was
aggravated by the refusal of the king to call for new elections and
his stubbornness in forming shaky governments from Centre Union fac-
tion deputies with the support of the right-wing opposition.
However, despite the atmosphere of tension and crisis in tile
political superstructure of tire country (1965 to 1967), theeconomic
andsocial infrastructurescontinuedto growvigorously,apparently
undisturbedby "politicalinstability". For example,grossnational
productannualgrowth rates continuedat anextremelyeffective8%
level,while political demornstrationswererelativelyrestrained.
Finally,in theculturalarid educational sectorsGreecewasexperiencing
iapidtransformationandgrowth (1).
It is to benotedthatduring this periodsomeincidents of
sabotagetook placein armyunits stationednear theborderwith
Turkey:-' attemptsweremale tocreatefires anderectbarricades
duringpopulardemonstrations. Thehyperactive ultra-conservative
newspapersattributed the incidents tocommunistinfiltration. Later,
itwasdiscovered that thesabotage occurredinaunit ledby
ColonelG.Papadopoulos, thesubsequentleaderofthe coup. There
isalsoevidence that the fireswerestartedandthe barricades
erectedbymembersofparamilitarygroupswith the connivanceof the
police.
But in spiteof thetwo yearsof fierce confrontationand tne
continuouslydeterioratinginstitutional situationthe leadersofthe
majorparliamentaryforces, PapandreouandKanellopoulos, reachedan
agreementand,therefore,generalelectionswereset for 27May 1967.
- 136 -
Theelectoraloutcome wouldhaveprobablybroughttheCentreUnion
backintopowerwithasolidmajority. Today it is knownbeyond
anydoubt thatthe king,determined topreventPapandreou fromwin-
ningtheelections,waspreparinghis ownintervention. Atfirsthe
waspreparingplansfordeclaringastate ofsiegeonthe occasion
ofwidespreadcivildisturbancesinitiatedby membersofsecretand
paramilitaryorganisations. Hewould thenapplyarticle 91ofthe
constitutionand suspendcivil liberties for ninemonths. When
thoseplanswere frustratedbyan interventionofPrimeMinister
Kanellopoulos,thekinggavehis consentto amilitarydictatorship
tobe ledbythe headof thearmed forces,GeneralSpandidakis. At
thiscrucialmomentPapadopoulos mangedto outmanoeuvrethe junta
ofthe generalsand toseizepower. Thus, the Greek peoplewere
prevented fromexercisingtheir right toelect theirgovernment.
That samemorningof21 April, thenational radionetwork
announced thatthe king,due to "seriousdisturbancesandmanifest
threattopublicorder"hadinvokedart.91 oftheconstitution aqO,
on therecommendationofhis government,had issuedaroyal decree
declaringastateof siege,invokingtheMartial Law Art "DeltaXi
Theta"of 8October 1912, and suspending frticles 5,6,8,10, 11,
12, 14, 20, 95and 97 oftheconstitution.
(u
It is important tonote
that the announcerdid notmention thenamesofanyoftheresponsible
ministers signing thedecreebutreferred to "theprimeministerand
theministers". Later the kingclaimedthat tlg}putschists had
the textofthe decree.
forged
hissignature
on
The decree was published in the official gazette under seri.l no.
280 and dated21 April 1967.
Undernormalconditions RoyalDecree 280wasunconstitutional
because itdidnot provide for theconvocationof the parliament,
whichhadbeenpreviouslydissolveddue to the forthcomingelections.
Asaguarantee ofcivil liberties,art.91 ofthe constitutionin force
at that time,made the validity ofany decreebywhichastateof
emergencywas declared,subject to ratificationby theparliament.
If theparliamentwas notin sessionorhad beendissolvedthedecree
hadtoprovidefor its reconventionwithin ten days. The parliament
would thendecide onmaintainingor liftingthestate ofemergency.
TheColonelsnotonly failed tosummon the parliamentbut,
claimingtheir revolutionaryright to createnew 0, promulgated
ConstitutionalAct "Alpha" (No. 1)on 5May 1967. This, after a
preamblefullof generalitiesandemptyoratory,gave totheColonels,
in their capacityas acabinet, the right to exerciseconstitutional
authorityby issuingconstitutionalacts untiltheenactmentofa
newconstitutionwhich,accordingto the sameact,wastobedrafted
bythe governmentandratifiedbyareferendum.
Vestedwithconstitutionalauthority th
8
Colonels issued,on
thesame day,ConstitutionalAct "Beta" (No.2) which,withthe assumed
powerofaConstitutionalLegislatorandundernoobligationwhatsoever
toobservethe guaranteesprescribedin art.91of theoldconstitu-
tion, reaffirmedtheproclamation ofmartial lawand thestate of
siege andratifiedretroactivelyRoyal Decree280.
- 137 -
Thesameact increased thenumberofsuspendedarticlesof the
constitution,addingart.99, providing forthe electionofmunicipal
authoritiesbythe people,andart. 101, referringto thepermanent
statusofpublicservants.
With the promulgationofConstitutionalActs "Alpha"and
"Beta" theColonels tried to give afacade oflegitimacyto their
arbitraryrule. Theysought to framein legal terms whatinpolitical
languagewas theirmajor claimsince the first day,namely that their
rulewasafoductofarevolution andnot simplyacoupd'etat.
This theory was extensivelyusedbythe junta in justifyingtheir
violationofall constitutionalguaranteespertainingto civil,poli-
ticalandhumanrights. Once the obstacleof the constitutionalpro-
visionshad beenovercomethe Colonelshadat theirdisposalavery
richarmouryofexistinglegislation enactedin formertimesof
(realorassuxi}g emergency,which are not rare incontemporary
Greekhistory.
II. THE RIGHT TO LIBERTY ANDSECURITY
Art.5of the constitutionprescribes thatnobodymaybe
arrestedordetainedwithoutan authorisedwarrantissuedbyajudi-
cialauthority. The same articleprovidesforalimitedperiodof
three daysduringwhichtheexaminingmagistratehas the rightto
detainanindividualwithoutissuingawarrantofpreventivedeten-
tion.
After the suspensionofart. 5of theconstitution andas
expresslyprovidedin art.9(4) ofMartialLawAct"DeltaXi Theta"
themilitaryauthorities,whohadbecomecompetentin all matters
regardingpublicorder (MartialLaw Act,art.4), had therightto
arrestanypersonwithoutapplyingthe guaranteescontainedin art.5
of theconstitution. However,according toart. 11 ofMartialLaw
Act "DeltaXiTheta""duringthestate ofsiege citizensare entitled
toall constitutional rightswhichhavenotbeenexplicitly suspended".
Inviewofthis provision,the attorneygeneralof theSupremeCourt
at that time,responding toapetitionbythe administration,render-
edanexpertopinion stating thatthe suspensionofart.5ofthe
constitutionmeantthat
- theordinarylegislatorwasnotboundbythe limitationsputfor-
wardinthe aboveconstitutional provision.
- anarrestwithoutawarrantbecameconstitutionallypermissible
through the applicationofart.9(4) ofstatute "DeltaXiTheta".
- all othermattersnotcoveredbyaspecificprovisionofstatute
"DeltaXi Theta"were treatedas before,evenif thosematters
were subjectto theconstitutionalprovisionsalreadyin suspension,
the sole implicationof the suspensionbeingthat the legislator
had theright to pass lawswithouttakingintoconsideration the
guaranteesofthe suspendedconstitutionalprovision. Thussince
therewas no otherprovisionin statute "DeltaXi Theta"but the
one referringto arrestwithoutwarrant,the statusofthearrested
personwasgovernedby therelevantprovisionof theCodeofCrim-
inalProcedurefor thosewhoare tobe triedby theregular crim-
- 138 -
inalcourtsand theprovisionsoftheMilitaryCriTinalCodeforthose
whoarewithin the jurisdictionofcourts-martial! )
However,in practice,this rulingwasrarelyobserved. Arrested
personsweredetainedfor monthswithoutbeingchargedandwithno ac-
cesswhatsoever to lawyersorvisits byrelatives.The guaranteespro-
vided for by the law of interrogation and preventive detention were
grossly violated. In mostcases detaineeswereexaminedaswitnesses
with no official record of their deposition being made in writing.
Under the stress of long-term detention and, in many (ases, after
torture, theywereforced todiscloseincriminating factsandcircum-
stances that laterwereused againstthemby the prosecutingattorney
in the indictment.
III. MILITARYCOURTS
In viewofart. 6of statute "DeltaXiTheta"allowingtheestab-
lishment ofmilitarycourts, the junta issued RoyalDecree 281/1967by
whichspecial courts-martialwereset upin tenmajor cities. Butin
spite of the factthatart. 6of statute "DeltaXi Theta"alsoprovided
for special appellate courts-martial the Colonels not only failed to set
upsuch courtsbutalso ruled that judgementsofcourtsof firstinstance
werefinal andnoappealswereallowed. However,under thepressure
of internationalpublic opinion, the juntatook special legislative
measures from time to time allowing appeals. -
Thepurposeofthose laws,which weregivenextensivepubli-
cityby the dailypressand the massmedia,was to signifya
gradual returnto normalpolitical life. Butthe conditionsandthe
exceptionsunderwhich the right ofappealwas givenweresomany
that hardlyany politicalprisonercouldmeetthe prerequisitesof
eligibility, and of the few who were considered eligible to apply only
an insignificantpercentage saw their sentencesldecreasedtosuch
an extentas toeffecttheir immediaterelease.
Accordingto art. 5ofstatute "DeltaXiTheta", military
courtswerecompetentduring the stateof emergency,to tryoffences
againstthe securityof the state, the socialregimeand public
order. Thesamearticle,atpara. 2,prescribes thatmilitary
courtsarealsocompetentforanyoffence if, in theopinionof the
military authorities, the securityof the state or the publicorder
is beingjeopardised.
Under this last provisionasmall numberofcasesofprofit-
eeringwere triedbymilitarycourtsmainlyduringthe firstmonths
of thecoupwhenthe Colonelswereexcessivelyeagerto "purge"the
countryandfight corruption. Howeverthe maintaskof themilitary
courtsand the militaryauthoritieswas to dealwiththeopponents
of the regime. In closecollaborationwith the specialbranchesof
the policethat had longexperience indealingwithpoliticaloffen-
ces, bothduringandafter the civilwar (1946-1950), theMilitary
Police (ESA)andtheSecretInformationBranchesof theArmy (KYP)
occupied themselveswith the taskofwipingoutanysignofopposi-
tion toand resistanceagainsttheregime.
- 139-
Thefeelingofomnipotenceand immunitythatthearmyandpolice
officersenjoyedas law-enforcementandinvestigating authoritiesdid
notcomeasaresultofthe stateof siegeandthe applicationof
statute "DeltaXiTheta". For nomatterhowgreat the powerthat the
abovelaw conferredupon the militaryauthorities, undernocircum-
stances did it render them beyond any control whatsoever. Whatmade
the officers believe that they had the right of life and death over
the citizens was the feeling that they were members of a revolution-
aryelite andtherefore theywereboundneither bythe lawsnorby
the constitution. Theyusedthe dictum "Successfulrevolution isa
law-creatingfact" to counteranyargumentagainsttheirillegal and
arbitraryactions. This feelingofomnipotenceand immunitywas
furthermorepasseddown to the ranks bynotholding themresponsible
for their illegal actions, as long as they were efficiently protect-
ing public order and faithfully serving the "revolution".
Even in the most extreme cases, such as that of an ex-member
of the parliamentwhodiedduringinterrogationatthe handsofhis
torturersin amilitarycompoundin Thessaloniki, nobodycaredto
investigate to establishwhowas responsible. Whenthe relatives
ofthedeceasedfiledacomplaintwith the competentdistrictattor-
ney,the militarycommanderof the areaordered thatthe filebe
handedoverto the headofthe MilitaryJudicialDepartment. The
latterconductedno investigationwhatsoeverandputthe filein a
drawer,whereitwas foundafterthe fall ofthe dictatorship.
Althoughthe MilitaryCriminalCodewhichunder the lawof
emergencyappliedto civilians,did notdiffermuchfromtheordi-
naryCodeofCriminalProcedureas far aspretrialinvestigationwas
concerned, theofficersincommandofthe investigatingunits con-
ducted the interrogationin amannerthat completelyviolatedthe
legal rules. Suspectsweredetainedincommunicado sometimesfor
more thanamonth. Psychologicalandbodilytorture weresystem-
aticallyusedas interrogationmethods. The EuropeanCommissionof
HumanRightscarriedoutadetailedinvestigationintothe situa-
tionin thecourse ofexaminingapplicationsofDenmark,Norway,
Swedenand theNetherlandsagainsttheGreek junta. TheCommission
stated inits report thatit "hasfounditestablished beyonddoubt
that tortureorill-treatmentcontrarytoart. 3(oftheEuropean
Conventfp ofHuman Rights)hasbeen inflictedinanumberof
cases'.
Torturewas themaininstrumentusedbythe investigating
authoritiesinestablishingthe factsofeachparticularcase. The
mainpattern,indealingwithdetaineessuspectedofbelongingto a
resistance group,wastopickupasmall numberofthem,usuallytwo
orthree, torture them, obtaininformationfromeachone individual-
ly,cross-check thisinformationand finallyinterrogate theothers
onthe basisof the factsalreadyestablished. Thenthearmy
commandersissuedthe warrant,framedthechargeandbroughtthe case
tocourtwiththeirownagentsaswitnessesto the factsandinforma-
tionobtained fromthe victims. Veryoftenapolicemantestifying
infrontof thecourt-martialdescribedin detailsecretmeetings
ofthedefendantswhichhadtakenplaceinaprivatehcouse, specify-
- 140 -
ingthepositionofeachonearoundthe tableand the "exactwords"
usedbyeveryparticularspeaker (sometimesdistortedto fit the
charge). If hewasquestioned astoTowhewasawareofsomanyde-
tails therewasalwaysastandardanswer. "frominformationobtained
inmydepartment".
The obligationto disclosesourceswasnotenforced
at that time.
It is noteworthythatthe systematicuseoftorturewas sus-
pendedforaperiod in 1971. WhentheCommissiononHumanRightsof
theCouncilofEuropewasinvestigating
the inter-statecomplaint
againstGreece, thegovernmentdecidedto invite the International
Committeeof theRedCross (ICRC)to sendrepresentatives
to Greece
withpermissionto visitprisons andpolicestationsandto investi-
gatetorture complaints. The ICRCdid so, advertisingtheirpresence
inthe pressandgivingatelephonenumberwhichpeople couldring.
Thisenabled the ICRCattimes to visitplacesof allegedtorture
withinminutesofreceivingthecomplaint. The resultwas thatduring
thatyear torture,ifnotabolished,was verysubstantiallyreduced.
The Junta,however,refused to renewtheauthorisation to the ICRC,
andinthe followingyears the systematicuse oftorturewasrenewed.
Aswasmentionedabove,the junta in its effortsto silence
oppositionusedmainlypreexistinglaws that hadbeenenactedduring
troubledperiodsin thepast. In casesof indiviCualdissentersor
groupswhich, in the estimationofthemilitaryauthorities,didnot
raise considerableproblems forthe Juntaorincaseswhere theColo-
nelshad theirownpoliticalreasons to treatdefendantslightly,the
indictmentwasso wordedasto fitart. 10of statute "DeltaXi Theta"
whichprovided for asentenceofupto fiveyears imprisonmentfor
thosewhodefiedordersof the militaryauthorities.
Asecondcategorymostlyusedfororganisedresistancewas
Law509/1947 regardingthesecurityof thestate andtheprotection
of the socialregimeandcivil liberties. Thislawwaspartofanet-
workofextraordinary
measuresenacted duringthe civilwar (1946-
1950) tosuppresscommunistinsurrectionat thattime. Unfortunately,
17years after the endof thecivilwar that lawwasstill in force
andwhentheColonels tookover,itbecame theirmaininstrumentof
oppression. Art. 2(1) of theabove lawreadsas follows "Whoever
pursuesthe applicationofideas aimingapparentlyatthe violentover-
throwof the regimeorat thedetachmentofthe wholeorpartofthe
national territory,or triesto convertothersto the above ideas
is sentenced, ifhe isaleaderoraninstigator, toimprisonment
fromfive totwentyyearsand inespeciallygrave cases tolife
imprisonmentordeathand ifheis asimplemember,to upto five
years imprisonment and inespeciallygravecases toimprisonment
fromfive totwentyyears."
Itisevidenteven to thosewhoare notfamiliarwithits his-
toricalcontext thatthis lawwasdraftedandenactedduringavery
crucialperiodofthe civilwar (1947)withthe solepurposeofcon-
trollingthe ever-growingactivityof theCommunistparty. Itsword-
ing infighting,notsubversiveaction,butdissemination
of ideas,
apartfromtheconstitutionalproblemsthat itraises,ischaracteris-
ticof aparticularperiodwhen thesocial regimewas fightingfor its
- 141 -
existence. Ininterpreting thislaw thecourtsofthatperiodheld
thatwhatis prohibitedby the law is the ideologywhichaims atthe
overthrowofliberal parliamentarydemocracy forasocialistregime.
The legislatorsofthat timein theirefforttodefend theexisting
constitution, feltthatsuchanoverthrowwouldputan endto the
civil libertiesprotectedbyit.
The juntamadeextensiveuseof this lawagainst itsopponents
regardless of theirideology. Themilitary judges intheirdecisions,
uLed tne samewordingas theircolleagues in the past,exceptthat
theytendedto identifythe term"regime"withthecoupof 21 April.
Thereforeanyoppositionto thedictatorship,nomatterwhereit
came from,was interpretedasan effortto overthrowthe regime.
Howeverthis patternsometimescreated problemsofelementarylogic
in cases where the defendantswereoutspoken conservativeswhohad
nothingmorein mind than the restitutionof constitutionalliber-
ties, something thateven the leadersof the coupdidnotdenyat
least in theory.
Athirdcategoryof chargeswasbasedon theoldstatute
375/1936concerning"crimesofspying andcriminalacts threatening
the securityof thecountryfromabroad". Thislawhadalsobeen
usedagainst the communistsduringthecivil warmainlyasaninstru-
mantfor provingthatcommunistinsurgencywas ledbyoutsidersand
vaspartofaninternationalconspiracy. Accordingto theabove law,
chargesofspyingwere to betriedbycourt-martialeven in periods
ofnormality. TheColonelsusedthat lawinanumberofcases,
wheresoldiersandjuniorofficerstryingto formresistancegroups
withinthe armedforces hadset up aprimitivecommunicationsystem
amongthe militaryunitsin whichthey served. Itwasalsoused
againstagroupofhighrankingcadresof theCommunistPartywhocame
fromabroadwithfake passportsto organise apartynucleusin the
country.
Fourthly,the penalcode wasused in anumberofcases against
politicalopponents. In 1971, art. 187of thePenalCodewasamended
bystatutorydecree861/1971so as to includewithin themeaningof
conspiracy the committingofmisdemeanours. Therefore, revisedarticle
187punishes anyagreementbetween twoormorepersonsfor thepurpose
ofcommitting by their jointeffortsoneormorefelonies ormisdemean-
ours. Under thisnew, enlargeddefinition,conspiracybecame thebasis
ofcharges broughtbyordinarystateprosecutorsafter thejuntahad
graduallyabolishedtheextraordinary courts-martialand consequently
the competence ofmilitarycommanders tobringchargesagainst
civilians.(15) '2nsapplicationofarticle 187increasedthe irration-
ality ofthe sentencesimposeC. For anactionwhichin previouscases
hadbeendescribedas aviolationofstatute509/1947 (ideasaimingat
the overthrowofthe regime)and led toasentenceofmorethanten
years,the ordinarycourtscharged thedefendantswithviolationof
art. 187 ofthe PenalCode (conspiracy)andsentencedthemto less
than two yearsimprisonment.
Finally,martiallaw,whichhadbeengraduallylifted from
variousdistrictssince December1971,was totallyabolishedon
20August,1973. However,itwasreintroducedafter the uprising
at thePolytechnicSchoolofAthens (18November 1973)andthe
- 142 -
overthrow
ofthe Papadopoulos
regimeby the factionif Brigadier
Ioannides,
the leaderofESA. Duringthatfirstperiod itis estim-
atedthat 4,350personswerebroughtbeforemilitarycourts,whereas
duringthe Ioannides
regimewhichlasted from18 November,
1973 until
the fall ofthe junta (23July,1974) an additional
15personswere
triedbyextraordinary
andordinarymilitarycourts.
IV. ADMINISTRATIVE
DISPLACEMENT
Onthe first dAy of the coup (21April 1967)anextensive
round-up
was carriedoutbyarmyunits. The prime minister,
party leadersand
manymembersof theParliament
were among thosearrested.
In addition,
in the capital alone,an estimated7,000civilians
listedasleft-wing
by theArmy intelligence
Servicewerearrestedtoo. Thewholeopera-
tion inAthensas wellas in othercitieswas carriedout inaccordance
withaNATOplan (codename"Prometheus")
designed to applyin caseof
anattack byeasternsocialist
countries.
The round-upcontinued
duringthe following
days andarrested
personswerepackedin policestationsorathleticstadiums.
There
isevidence thatin some casesmistreatment
andtorture wereinflicted
on the detainees.
Thewholeoperation
cannotbejustified
byany
legalprovision
whatsoever.
Following
thearrests mostofthedetainees
w~redeportedtoconcentration
campsin remote islands.
Administrative
displacement
or"internal
exile" is awell-
known practiceinGreekpolitical
lifeand consists
in banishing
aper-
son fromhis home to liveinsomeotherspecified
andusuallyremote
place. According
to art.2ofLegislative
Decree19/1924 "OnRegional
PublicSecurityCommittees",
administrative
committees
setupinevery
prefecture
of the countryandconsisting
of theprefect,
ajudge of
the courtof first instance
and the districtattorneymay decideon
the displacement
ofanyonesuspected
ofcommitting
acts againstpublic
orderand the peaceandsecurity
ofthe country
7
Thedisplaced
person
had theright ofappealto ahigher committee.
This initial legaldocumentwasfurther elaborated
atdifferent
timesofemergency
andaccording
to theexigencies
ofparticular
situ-
ations. But itwas duringandafter the civilwarthatthe lawwas
extensively
amendedandused. Statute 511/1947definedthe authority
of the localpoliceregarding
displaced
persons.
According
to this
lawthe policeacquired
theright a)to ask displaced
persons to re-
portoncertaindays to the policestation,b) to prohibit
themgoing
outof theirresidences
at certainhoursofdayandnight,c)to
restricttheirmovements
towithin 'hebourdaries
ofthe community,
d)toobligethemto notifythe policeofe -erychangeof residence,
e)tosearch theirhouse any timeofdayor;ight, f)toprohibit
their meetingtogether,
g)to prohibittheir settingupanyclubor
association,
h) tobanthe editing,publishing
oreventhe circula-
tionofmanuscripts
deemedtobeharmful to the publicorder,i)to
bananyvocational
activities
if theyarenotnecessary
for daily
living,j)to determine
the maximumamountofmoney thateachof the
displaced
personshad therighttopossess,
k) tocheckanyparcel
sent to thedisplaced
person,1)to censortheircorrespondence.
- 143 -
TheColonelsapplied the samenetworkof legal instruments to
displacepersonswhoweredeemedto beopponentsoftheregime. Most
ofthosearrestedon the firstdaysweredisplacedto variousislands
andweredetainedin concentrationcamps. Conditionsofdetention
in concentrationcamps werelittledifferentto thoseofpersons
serving sentences in ordinaryjails.
Public SecurityCommitteeswereset upanddecidedaposteriori
onthe legalityofthe displacementofpersonsin internal exile.
Some of them were released after they had submitted a written pro-
mise that they would not engage in any kind of political activity.
In May 1969 the junta passed Legislative Decree No. 188/1969 - by
which a three-metier Committee of Public Security was set upto sit
in Athens and decide on the release of displaced persons. The decree
defined the principles on which the committee should base its
judgement.
Since the relevantinformationwas given to the committeemain-
ly by the local police, the latter exercised strong psychological
pressureondetaineesto forcethem tosigndocumentsrenouncing
theirideas,expressingconfidence in the "national revolution",etc.
Thusthe file presentedto the committeereflectedthedegreeofeach
detainee'ssubmission to tile pressureexertedby thepolice.
In additionto those detainedwithout trialin concentration
camps,whowere mainlyof the left-wing,therewereanumberwho
wereeithersuspectedof actsofresistanceorsimplyundesirablein
the iyesof the regime, andwhoweredisplaced to remotemountain
villages. Among themwerepolitical leaders,well-knownuniversity
professors and huamn rights lawyers as well as others whose presence
inthe maincitieswasannoying to the regime.
Thus,although the institutionofadministrativedisplacement
was, strictosensu, legal, the Colonelsapplied the relevantlegis-
lationinanarbitraryway,as aninstrumentofpoliticaloppression.
Thousandsofpersonswhowerearrestedonthe first dayof the coup
wereexiledwithoutapreviousdecisionofaregionalPublicSecurity
Committee. Furthermore,administrativedisplacementas prescribed
bythe lawpresupposes thatthe personlives in freedomundercertain
restrictions mentionedabove. Detentionin -oncentration camps
whichis little differentfrom imprisonment cannotbelegally jus-
tifiedandis notpermittedeven underemergencylegislation.
V. DEPRIVATIONOFCITIZENSHIP
In theiromnipotenceasconstitutional legislatorstheSW-
nelspassedConstitutionalAct "Eta" (No.8)on11 July 1967.'--
Art.1ofthe aboveactgavetheministerof theinteriorthe right
to depriveoftheircitizenshipthoseGreekswho,havingtheir
residenceabroad,actedatthat timeor in thepastunpatriotically
orin amannerincompatiblewiththeircapacityas Greeksorcon-
traryto the interestsofGreeceordes~inedto serveacausepres-
cribedascriminalby statute 509/1947. Inpara.2ofthe same
articlethe term "unpatrioticactivities"wasdefinedingeneral
termsso asto includetaepassingoffalse informationwhichmight
- 144 -
discreditthestate orits principles intheeyesof theinternational
public.
Butthe ministerofthe interiorhadissueddecisionsdepriving
Greeks livingabroadoftheircitizenshipontheabove-mentioned
groundseven beforethepromulgationof theconstitutional act.Con-
sequently,those decisionswere legalisedretroactivelybypara.4of
art.i,whichratifiedthemall.
Finallyart. 2of thisactprovidedforthe total confiscation
of the propertyofall personsdeprivedoftheircitizenship.
Deprivationofcitizenshipis notanoveltyinGreek contem-
poraryhistory. Duringthe civilwar, itwas usedextensivelyasa
meansofbanningallthose whohadfollowed
2
Jhedefeatedrevolutionary
-
armyintoneighbouringsocialistcountries.
Butalthoughsuch treatmentofadefeatedenemyafterafierce
andbloodycivilwar, mayclaimlegalorpolitical justification,it
iscertainlyentirelyunjustifiablein the circumstancesunderwhich
itwasusedbythe Colonels. Politicalleaders,artists,intellec-
tuals,students andworkerswhohadtestified toparliamentarycommit-
teesofvarious countries,expressedtheir viewsagainst thejunta
eitherthrough the massmediaorattheCouncilofEurope,ortaken
part inpoliticalcampaigns, becamevictimsofthis legislation which
was usedbythe juntain itseffortto intimidateGreek
2
abroadand
preventthemfromcampaigningagainstthe dictatorship. Itwasonly
because ofthewillingnessofmost Europeangovernments to grantpoli-
ticalrefugee status to thoseGreekswhohadlosttheircitizenship,
thatthis methodprovedtobeunsuccessfulin preventingthe mobili-
zationofGreeksabroad.
ConstitutionalActNo.8anditsextensive use raisedvery
strongfeelings againstthe junta, mainlyin WesternEuropean countries.
Thesefeelingswerereflectedinthe secondapplications (28March,
1968) of thegovernments ofDenmark,NorwayandSwedento theEuro-
peanCommission ofHumanRights. Theapplicantgovernmentsalleged
thatConstitutionalActNo. 8violatedart. 7 (recroactivepunishment)
oftheEuropeanConventionandart. 1(freeenjoymei.tofproperty)of
the FirstProtocol.
Underthisheavypressure,on20 September 1968, thejunta
issuedConstitutionalAct "Lamda" (No.30). ThisAct,whichclaimed
tobeanauthenticinterpretationofConstitutionalActNo.8,pres-
cribedthat deprivationof citizenshipaccordingto Constitutional
ActNo. 8waspermittedonlyifthe acts unJerconsiderationviolated
acertain lawin forceat the timeoftheircommission. Thus,Cons-
titutionalActNo. 8ceasedtobr in contradictionto the general
principleofnullapoenanullumcrimensine lege. Furthermore,in
art. 2thewords "totalor"ofart. 2ofConstitutionalActNo. 8
weredeletedso that totalconfiscationwasno longerpermitted.
StrictlyspeakingConstitutionalActNo.8,as amended,didnot
ceaseto violateart. 1of theFirstProtocolofthe EuropeanCon-
vention. Confiscation,evenpartial,was not imposedinthepublic
interestbutasasentenceand,whatis moreimportant, the courtof
- 145-
first instancewhichwascalledtodecideon theconfiscation (art.2
para.4ConstitutionalActNo. 8)hadnooptionbutto acceptthe
motionofthe ministerofpublicorderifhis decisiononthe depri-
vationofcitizenshipfulfilledthe foimalprerequisitesofthe Cons-
titutionalAct. Since thedecisionoftheministercouldnotbe
challengedon its merits (art.1para.1ConstitutionalActNo. 8)
thecourtwasobligedto impose the confiscationas anadditional
punishment solelybecause theminister'sdecision hadbeen duly
promulgatedin the officialgazette. Nevertheless, the European
Commissionof Human Rightsheld that: "promulgatingConstitutional
Act "Eta"whichwas laterinterpretedbyConstitutionalAct "Lamda",
therespondent governmenthas not violatedart. 7ofthe Convention
orart. 1of theFirstProtocol". Anditwas
2
go decidedbytheCom-
mitteeofMinistersof theCouncilofEurope.
VI. THEPURGINGOFTHE ADMINISTRATIONANDJUDICIARY
Oneof the most importantendeavoursofthe dictatorswason
theonehand toget ridofundesirablepublic servants, judgesand
universityprofessors, andontheotherhandto intimidateand cause
confusionamongthose remaining.
ThiswascarriedoutwiththehelpofConstitutioialActNo.2
that derogatedart.101 ofthe constitutionprovidingf.jr theperma-
nentstatusofpublicservantsandConstitutionalAct "Delta" (No.4),
thatprovided for the inadmissibilityofappeals to the Supreme
AdministrativeCourt (Councilof State)againstadministrativedeci-
sions regardingthe status ofpublicservants, functionaries4 judges,
clergymenandpersonnelof the armedforces andthepolice.
Havingestablishedtheirimmunityanduncontrollableauthority
overthe administration,theColonelsproceededtopromulgateanumber
ofConstitutionalActs bywhich theyattemptedco subduethemost
influencPalnucleusofGreeksociety,namelythe judges,clergy,uni-
versityprofessors andteachers. Judges,bishopsanduniversity
professorsenjoyedlife tenureorpermanentstatuFaccordingto
constitutionalprovisionswhichcouldnot bederogatedfrombyemer-
gencylegislation. Therefore, theColonelshad touse theirauthority
asconstitutionallegislators to getridofthese uqesiredfunction-
aries. ByConstitutionalAct "KapaDelta" (No.24) theysuspended
for threedaysthe life-tenure andpermanentstatusof judgesand
districtattorneys,andprovidedforthe rightof theCabinet todis-
misswithin thisperiodjudgesanddistrictattorneyswho "donot
possess themoralprestige necessaryfortheirpublicofficeandare
notimbuedwithsoundsocialprinciples" etc. Thisconstitutional
actalsorepeatedinamorespecificwaythealreadyexistingprohi-
bitionfromappealingto the SupremeAdministrativeCourt.
Under the abovesubjectiveandobscurecriteriathe president
ofthe Supreme Courtand29 judgesanddistrictattorneysweredis-
missed withoutbeingquestionedorgiven theopportunityto defend
themselves.
- 146-
Inspiteoftheprohibitionthe dismissedjudgesappealedto
theSupremeAdministrative
Court,challengingnot the substanceof
theirdismissals,whichwasnot permitted,butthe failureofthe
administration
to give them the opportunity to defend themselvesand
refute 'he charges madeagainst them. TheSupremeAdministrative
Court
by adecision No. 1814/1.969accepted the appealon the above ground
and rendered the dismissals void. This decision is onu of the most
courageous acts of resistance against the arbitrary rule of the Colo-
nels and also a legal text - cr-atr unm aistic and theoretical value.
Naturally, the reaction of the dictatorship was one of passion-
ate anger. Some days later the head of the junta, Papadopoulos,
made
apublicstatementaccusingthe SupremeAdministrative
Courtofacting
contra legcm and stating that the government 'as a proxy of the revolu-
tion' considered the decision null and void. Next day, in confirmation
of this statement, Statutory Decree No. 228/1969 was promulgated
which declared the decision void. At the same time, by anothq
6
5decree
it was announced that the resignation of Michael Stasinopouloj , Pe-
sidentofthe Supreme Administrative
Court, was accepted and that he
was put under house arrest for more than a year. As was disclosed
later,his resignationhadneverbeensubmittedand thereforehis re-
moval from office was another illegal and arbitrary act of the regime.
Thus, the dictatorssufferedaverycostlypolitical defeatin their
attemptto subduethe judiciaryanditbecameevident, ataverycru-
cial momentwhenthe Greekcasewasbeingdebatedin frontofthe
Commission ofHuman Rights oftheCouncil ofLurope, thatthe Colonels
wereunableto observeeven theextraordinary emergencylegislation
which theyhad established. Thatlegislationhadprovedimpotentin
securingtheir ruleand thereforethey wereforcedto violate their
own legalityand seek recourseto openarbitrariness.
Asimilarprocedurewas followedin the dismissalofprofessors
andteachersofsecondaryandprimaryeducation,bymeansofConstitu-
tionalActs 'Epsilon"(No.5), "Theta" (No.9), "Iota" (No.10), "Iota
Epsilon" (No.15) and "IotaZeta" (No.17). Under equallysubjective
andobscurecriteria,the juntadismissed56 universityprofessors
andassistantprofessors, 46teachersofsecondaryeducation, 211
teachersofprimaryeducationWtd
13 functionariesof theministryof
education for lackof loyalty. By thesame constitutional
acts
(mainlyIotaEpsilon)the government assumedadecisiverole inthe
appointmentofprofessors and,thus, the academicindependenceof the
institutesofhighereducationwassubstantiallycurtailed.
Furthermore, theColonelsabolishedthe legallyelectedadmin-
istrationofthe GreekOrthodoxChurchbydissolving theCollegium
of Bishops and appointing eight bishops of their own choice to act as
administrators
of theChurchandelectanewarchbishop. The formerarchbish-
op wasinvoluntarilyreplacedbymeansofStatute No.3/1967which
establishedanage limit of80years for thepositionofarchbishop,
thus abolishing hi:3 previous life tenure.
- 147 -
VII. CONCLUSIONS
The materialpresentedin thisbriefarticle suggests the fol-
lowingconclusions as far as the 'fv!rlran ri,;..S is con-
cerned during the last dictatorial rule in Greece.
1) In declaring the state of emergency the Colonels applied only
the formal constitutional and ordinary provisions pertaining to a
state of siege. They failed to convoke parliament, which, according
to the constitution and the law, is the only power gaaranteeing the
observance of the rule of the law.
2) On the pretence that their authority derived from a success-
ful revolution the Colonels tacitly put aside the whole constitution
and applied their arbitrary rule in the form of Constitutional Acts.
3) The main corpus of the emergency legislation was not drafted
by the Colonels but was part of a pre-existing repressive mechanism,
used by them with the excuse that they were doing nothing more than
applyingthe lawsof democracy.
4) During the dictatorship there was a systematic and widespread
practice of torture of suspects in police stations and interrogation
centres. This practice was substantially reduced during the year
when delegates of the International Committee of the Red Cross were
allowed to make visitswithoutpriornotice toplacesof detention.
5) Therewerealso massive violations of other civil and political
rights,including freedomfromarbitrary arrest, rights of due pro-
cess, freedomof expression,association,assembly and movement,
freedomof the pressandacademic freedom. As foundby theEuropean
Commission on HumanRights, thesewerein violationof theGreek
government'sobligations under the EuropeanConvention as therewas
not,at the time of the militarycouporatany time thereafter,a
'publicemergencythreateningthe lifeof the nation'. Thedictator-
shipanditsactswere, therefore, illegal in international lawas
wellas underpre-existingdomesticlaw.
6) Emergencylegislation as suchwas onlyoneof the factors
which-ledto thegross violationofhuman rights. Mainly,whatrend-
eredthe dictatorialrule entirelyarbitraryandannihilatedallthe
control mechanismswas thetheoryofprimacyofsuccessfulrevolution
thatwas usedextensively bytheColonels even in frontofinterna-
tional forasuch as theCouncilofEurope andtheEuropeanCommission
onHuman Rights.
7) In viewofthe aforementioned,one mightsuggestthatifsome-
thing is tobe doneonbehalfof theinternational communityto limit
the infringementofhumanrightsbydictatorialregimes, wehaveto
look for normsandguidelineswhichwouldcircumscribethe law-
creatingauthorityof theconstitutionallegislator. In the areaof
conventionallaw the EuropeanandAmericanConventionsofHuman
Rightscouldbeusedasexamples.
-0-0-0-0-
- 148 -
Footnotes:
(1) Reportofaspecialstudymission toGreece (18-24January 1974)
submitteato theCommitteeofForeignAffairsof theHouse of
Representativesofthe U.S.Congress.
(2) See debateamongPapaligouras (MinisterofDefence inthe govern-
mentofKanellopoulos)GeneralSpandidakis (headofthearmed
forces)andMakarezos (secondin thehierarchyin theColonels'
junta) in thenewspapers "Vradini","Acropolis"and "Eleftheros
Kosmos" (December1971).
(3) Seeappendix A.
(4) See appendix B.
(5) See appendixC.
(6) Constantine'smessage to thenationduringhisabortivecoupof
13 December 1967 (S.N.Gregoriades,HistoryofContemporary
Greece1941-1974,Vol. V., p.191, in Greek).
(7) See appendixD.
(8) See appendixE.
(9) See "Droitet Rsvolution" "VoixGrecques",SteliosNestor,p. 111,
Gallimard, 1973.
(10) Thedictatorshipof1936-1940 andthecivil warof1946-1950are
the mostproductive periodsofsuch legislation.
(11) Therapos'expertopinionin "PoenicaChromica", I.H.p. 148.
(12) 1)L.D. 183/1969concerningthe revisionsofthe decisionsofmi-
litarycourts); 2)L.D.No.550/1970concerningthe extensionof
the validityofL.D.No.183/1969; 3)L.D.No.964/25/30.9.1971
concerningtheextensionof the deadlineforappealingthedeci-
sionsofmilitarycourts; 4)L.D.1310/18/18.12.1972
concerning
the revisingofthe decisionsofmilitarycourts.
(13) Unofficialstatisticsworkedoutbythe prisonersthemselves
showedthat outof 246appealsfiled in iccordancewithStatute
1310/1972,whichwas meantto bethemostwidelyapplied,106
weredeniedahearingonpreliminarygrounds. Fromthe 70 cases
givenahearingonly9prisonerswerereleasedimmediatelyasa
resultof commutedsentences. The remainingappealsneverreached
the courtbecause in the meantimeageneral amnestywasgranted
inAugust 1973.
(14) SeeappendixF andtheReportofthe EuropeanCommissiononHuman
Rights, Vol. II, Pt. 1,p. 417.
(15) The twomaincourts-martialof the countrywereabolishedbyR.D.
782/18.12.72 (court-martialofThessaloniki) andR.D.218/5.9.73
(court-martialofAthens).
- 149-
(16) "ANTI"No.69April1977,p.15.
(17) Itis worthmentioning thatthe junta,by statute165/21.10.67,
hadmodifiedthe above lawreplacingthe judgebythe commander
ofthe localpolicein theRegional PublicSecurityCommittee.
Bythe same law, the higherCommitteeforAppealswasabolished
andappealsweredecidedby the MinisterofPublicSecurity.
(18) See appendix G.
(19) See appendix H.
(20) See supra, p. 140.
(21) Resolution"DeltaZeta" (No.37) of4December 1947ofthe
Greek Parliament.Art. 20ofLegislative Decree 3370/1955.
(22) It is estimatedthat2,800personsweredeprivedof their
citizenshipduring thedictatorship,30 ofthemcnthe basis
ofConstitutionalAct "Eta" (No.8).
(23) ResolutionDH (70) 1CommitteeofMinisters 15hpril 1970
Council ofEuropeDoc. D.36782 (1970)9ILM 781-85 (1970).
(24) SeeappendixI.
(25) Seeappendix J.
(26) MichaelStasinopoulos,Presidentofthe SupremeAdministrative
Courtat thattime,became the firstpresidentoftheGreek
Republicin 1975 afterthe restitutionofdemocracy.
(27) See "ToVema"4August 1975.
-0-0-0-0-
- 150 -
AppendixA
Article 91of the1952Constitution
In case ofwarorgeneral mobilisationdue toexternal danger
oranyserious disturbanceormanifestthreatto thepublicorderand
securityofthe countrydue to internal danger,the kinghas theright
on the recommendation
ofthe cabinettopromulgate aroyaldecreesus-
pendingarticles 5,6,8,10, ii, 12, 14, 20, 95 and97of theconsti-
tution or part of them, throughout the whole or part of the territory
and by enforcing the existing law on the state of siege to establish
extraordinary tribunals.
The above law may riot be amended by the parliament which is con-
vened to enforce it. All administrativemeasures taken in connection
withthepresentarticle arecommunicatedwithoutdelay to the parlia-
mentin its firstsession following theirpromulgation.
Theparliament
decides tomaintainor tosuspend them. Ifthe administrativemeasures
are taken duringthe recessofthe parliament,the governmentis obliged
bythe same royaldecreeto summon itwithin tendays, evenifits
termhadendedor the bodyhadbeen dissolved.
Failure to summon theparliamentrenders the royaldecree void.
In bothcases the parliamentdecidesonmaintainingorsuspending the
aboveroyal decree.
The immunityofmembers oftheParliamentas providedfor inart.
63 is broughtinto forcewith thnpromulgationofthe abovementioned
royal decree.
Thevalidityof theabovedecreesin caseof awarmaynotbe
extendedaftertheendofit whereas,in anyothercase, theyare ipso
juresuspendedaftertwo months unlesstheparliamentdecidestopro-
longtheirapplication.
AppendixB
Royal DecreeNo. 280 (1)
Article1
On the proposalofthe CouncilofMinisters,weherebybring
intoeffectthroughout the territorytheMartialLawAct "DeltaXi
Theta"of8October,1912, asamendedbySection8ofLegislative
Decree4234/1962,byAct2839/1941andby the LegislativeDecreeof
9-11 November 1922.
Article 2
I. Fromthe dateofpublicationofthis decreewesuspendthrough-
outthe territorytieapplicationofarticles5,6,8,10, 11, 12, 14,
20, 95 and97oftheconstitution.
- 151 -
2. Militarytribunalswhicharealready inexistence, military
tribunals as maybe set upasan extraordinarymeasure, andthe com-
petentmilitaryauthorities shallexercisethe jurisdiction,provided
for byAct"DeltaXi Theta"asamended,and,in particular,in
accordancewith the decisionsof theministerofnational defence.
Article 3
Cases pendingbefore thecriminalcourts shallnot be trans-
mittedtothe military tribunals,unless themilitary jud.cialau-
thoritysees fitto request transmissionthereof.
Article4
Thisdecreeshall enterintoforce as fromthe dateof its
publicationin theofficialgazette.
AppendixC
Suspendedarticlesof the 1952Constitution
Article5
Withthe exceptionofpersonstaken in theact ofcommitting
anoffence. noone shall bearrestedor imprisonedwithoutajudicial
warrant statingthe reasonswhich mustbe servedat the momentof
arrestorimprisonmentpendingtrial. Anyperson takenin theact
or arrestedon the basisofawarrantofarrestshallwithout delay
be broughtbefore the competentexaminingmagistratewithin 24 hours
of his arrestat the latest,or, if thearrestwasmade awayfrom
the seatof the examiningmagistrate, in the shortesttimenecessary
for hisconveyance. Withinat themost threedays fromsuchappear-
ance, theexaminingmagistratemusteitherrelease thepersonarrest-
edordeliverawarrantforhis imprisonment. This time-limitshall
beextended forupto five daysat the requestof the personarrest-
edorin theeventof forcemajeure,whichshall becertified forth-
withbyadecisionof thecompetentjudicial council.
Shouldboththesetime-limits expirewithoutsuch action,
everyjailerorotherofficer,civilor military,charged withthe
detentionofthepersonarrestedshall releasehim forthwith.Trans-
gressorsoftheabove provisions shallbepunished for illegalcon-
finement andshallbe obligedtomake goodany losssustainedbythe
injuredpartyand, further, to givesatisfaction tosaidpartyby
suchsumofmoneyas the lawprovides.
The maximumtermofimprisonmentpendingtrial,as wellas
theconditions underwhich the state shallindemnifypersonsun-
justly imprisonedpending trialorsentence,shallbedetermined
by law.
- 152 -
Article6
In thecaseofpoliticaloffences,the courtofmisdemeanours
mayalways,on therequestof thepersondetained,allowhisrelease
onbail fixedbyajudicialorder,whichshall admitofappeal.
In the caseof suchoffences,imprisonmentpending trialshall
undernocircumstancesbeextendedbeyondthree months.
Interpretation clause
The introductionin the futureofgeneral orspecial laws
abolishingor restrictingthe termof imprisonmentpendingtrialor
renderingreleaseon bail mandatoryforthe judgeis bynomeans
precluded. It is further understood thatthe maximumtermofthree
months set in thesecondparagraph forimprisonmentpendingtrial
shall include the durationofboth the entireinvestigationand the
procedurebeforethe judicialcouncilspriortothe finalhearing.
Article8
Noperson shallbewithdrawnwithout his consent fromthe
jurisdiction ofhis lawfuljudge. The establishmentofjudicial commit-
teesand extraordinarycourts under anynamewhatsoeveris prohibited.
Article 10
Greekshave theright toassemblepeaceablyandunarmed. The
policemaybepresentonlyatpublicgatherings.
Article 11
Greekshave the righttoassociation,withdueadherenceto the
laws ofthe statewhich,however,shall undernocircumstancesrender
this right subjecttopreviouspermission ofthe government.
An association shallnot bedissolvedfor violationofthe
lawexceptby judicialdecision.
The rightofassociation in the caseofcivilservants and
employeesof seai-crvernmental agenciesandorganisationsmayby law
be suLmittedtocertain restrictions.
Strikesofcivil servantsand employeesofsemi-governmental
agenciesandorganisationsareprohibited.
Article12
Eachman'shouse is inviolable.Nohouse searchesshallbe
madeexceptwhenarid as the lawdirects.
Offenders againsttheseprovisions shall bepunishedfor
abuseofauthorityand shallbeobligedto indemnify fullythein-
jured partyandfurther togive satisfactiontosaidpartybysuch
sumof moneyas the lawprovides.
- 153 -
Article 14
Anypersonmaymakehis opinionspublicorally,inwritingor
inprintwithdueadherence tothe lawsof the state. Thepress is
free. Censorshipand everyotherpreventivemeasureisprohibited.
The seizureofnewspapers andotherprintedmattcr,eitherbeforeor
afterpublication,is likewiseprohibited.
Byexception,seizure afterpublication ispermitted
(a)becauseofinsult tothe Christianreligionorinidecentpublica-
tions manifestlyoffendingpublicdecency,inthe casesprovidedby
(b)becauseofinsultto the personoftheking,the successor
law,
tothe throne, theirwives ortheiroffsprings, (c)if the contents
ofthe publication,accordingto the termsof the law,are ofsuch
natureas to (I)disclosemovementsof thearmed forces ofmilitary
significance or fortificationsofthe country, (2)bemanifestly
rebellious ordirectedagainst the territorial integrityofthe na-
tion orconstitutean instigationtocommit acrimeofhightreason;
butin these cases,the publicprosecutormust,within24 hours from
within
the seizure, submit the case to the judicial council which,
seizure be maintained or
a further 24 hours, must decide whether the
shall be ipso jure lifted. Only
withdrawn,otherwisethe seizure
thepublisherof the itemseizedshall beallowedto appeal against
thejudicial order. Afterat least three convictionsofapress
offencewhichadmitsof seizure,the courtshallorderthe pe-manent
temporarysuspensionofissue ofthe publicationarid, ingrave
shallalsoprohibittheexerciseoftheprofession ofjour-
or
cases,
nalistbythe personconvicted. Suchsuspensionorprohibition
fromthe time thatthe courtdecisionbecomes final.
shallcommence
the titleofa
Nopersonwhatsoevershallbe permittedtolise
fromthe dateofthepermanentsus-
suspendednewspaper fortenyears
pension thereof.
OnlyGreek citizenswhohave notbeendeprivedof their
civic rights shallbe allowcd topublishnewspapers.
The mannerof rectifying
through thepress,erroneouspubli-
thepreconditions
andqualifications
forexer-
cations aswellas
cising the professionof journalistshallbedeterminedbylaw.
Enforcementby lawofspecial repressive measuresdirected
shallbeper-
against literaturedangeroustothe moralsofyouth
mitted.
Theprovisionson theprotectionofthepress containedin
thepresentarticle shallnot beapplicable
to motionpictures,
public shows,phonograph
records,broadcasting
andothcr similar
meansofconveyingspeechor ofrepretsentation.
Boththepublisher
ofanewspaper
and theauthorofaieprehensible
publication
re-
latingaperson'sprivate life shall,in additiontobeingsubject
to the penaltyimposedaccordingtothe terms ofthe penallaw,also
toredress fullyanyloss sufferedby
becivillyand jointlyliable
the injuredparty andto indemnifyhimbyasumofmoney asprovided
bylaw.
- 154 -
Article20
The secrecyoflettersandcorrespondence
byanyothermedium
whatsoevershallbecompletelyinviolable.
Article95
Trial shallbe byjury forcriminalandpoliticaloffences
aswellas offencesof the press,wheneversuchoffencesdonot con-
cernaperson'sprivatelife,andto anyotheroffenceswhichmayby
lawbe made liableto trial by jury. Forthe trialofthesaidoffen-
ces ofthe press, mixedcourts maybe establishedbylaw composedof
regular judges and jurors, the latterconstitutingthe majority.
Criminal.offenceswhichhave thus farbeenbroughtwithinthe
jurisdiction
of the courtsofappealby special lawsandresolutions
shall continuetobe triedbysuch courtsprovided theyarenotby law
made liable to trialby jury.
Article97
Thedetails regardingcourts martialofthe army,navyandair
force, piracy,barratryand prizecourts shall beregulatedby special
laws.
Civiliansmaynotbebrought underthe jurisdictionofcourts
martial ofthe army, navyorairforceexcept forpunishableacts
affectingthe securityof thearmedforces.
AppendixD
Constitutional
Act "Alpha" (No. 1)
Concerningthe constitutional
andlegislativeauthorityandthe
revisionofthe constitution
THECOUNCILOFMINISTERS
In viewof theresumption,on21 Aprilofthisyear,ofthe
rulingofthe countrybythe army,in ordertosave the Fatherland,the
expressedwill ofthe Greekpeoplethat thecivilianandsocial regime
in forcebeprotected fromall thosewhoplotagainstitandinorder
that the constitutional
acts be formed for thatpurpose,decides:
1
Theconstitutional
authoritywillbeexercised, untilthe enact-
mentof thenewconstitution,
bytheCouncilofMinistersthrough cons-
titutionalacts.
- 155 -
2
1. Thenewconstitutionwillbe preparedby theCouncilofMinis-
tersandwillbesubmittedto anation-wide referendumforits appro-
val.
2. Thebasisofthe newcor.stitution is theconstitutionnow in
force, revised with regard to those articles that are not fundamental
and do not involve a change of the regime.
By decision of the Council of Ministers a 20-member committee
is set up in order to study the intended revision of the constitution.
3. The time and the procedure of the referendum, the time that
the nEw constitation will enter into force and any other relative
details will be fixed by decision of the cabinet of ministers.
3
The legislativeauthorityisexercised, untilthe convocation
oftheParliament,by the kingwith the responsabilityof the govern-
ment,andwithconfirmationofcompulsory laws issuedup-to-date.
4
Thepresentwillenterinto force uponitspublication inthe
jourr-olofthegovernment.
Athens,5 May 1967
COUNCILOFMI..ISTERS
PRIMEMINISTEF DEPUTYPRIMEMINISTER
MEMBERS
AppendixE
ConstitutionalAct "Beta" (No.2)
Concerningtheproclamationofmartial lawandthe suspension
ofcertainprovisionsofthe constitution.
TheCabinet
Havingregard:
1) totheConstitutionalAct "A"concerningthe exerciseof
constitutionalandlegislativeauthorityetc. and
2) tothemanifest: threatto publicorderandsecurityin the
countryarisingfrominternaldangers,decidesas follows:
- 156-
Article 1
1. A'stateofmartiallaw isherebyproclaimed throughoutthe
countryandthe Act "DeltaXiTheta"of1912 asamendedbythe legis-
lativedecree4234/1962 isherebybroughtintoforce.
2. TheeffectofArticles5,6,8,10, 11, 12, 14, 95,97, 99,
paragraph (2)and 101of theconstitutionis herebysuspended.
Article 2
Mattersatpresentstayedbefore thecriminalcourts shallnot
be transferred tocourt-3 martial,providedthat themilitaryjudicial
authoritiesmay transfersuch-.cases as theyconsiderappropriate.
Article 3
TheroyaldecreeNo.280bringingthe "DeltaXiTheta"Actinto
forceis herebyratifiedwitheffectfrom its publicationin the
officialgazette.
Article4
The stateofmartiallaw shallbeterminatedeitherwhollyof
inpartbyroyaldecree.
Article 5
Thisconstitutionalactshallcomeintoforcewitheffectfrom
itspublicationinthe officialgazette andshallcease tooperate
when tnenewconstitutionispromulgated.
Athens5May 1967
Cabinet
President
Vice-Presiden'
Members
- 157 -
AppendixF
TheCaseAgainstGreece inthe CouncilofEurope
ShortlyafterthepromulgationofRoyal DecreeNo.280/1967
proclaimingastate of siege,proceedingsagainstthe Greek
4
unta
commencedin theCouncilofEurope. TheConsultativeAssembly,res-
pectingitsobligation to"preserveandpromote theidealsandprin-
cipleswhichconstitute aninterestcommonto thememberstates of
theCouncilofEurope" (StatuteofCouncil ofEurope,art. 1), react-
edpromptly,adopting,duringits regularsessionon26April 1967,
ResolutionNo. 256, inwhichit calledupon the Greekgovernmentto
return to "constitutionalorderandtheparliamentaryregime."
On23 June, 1967 the StandingCommitteeofthe Consultative
Assembly (followingarecommendationof its LegalCommittee)adopted
RecommendationNo. 346, inwhichit urgedthe governments ofthe
stateswhowere signatoriesto the EuropeanConventiononHuman
Rights, to "bringthe Greek case eitherseparatelyorjointlybefore
the EuropeanCommissionofHuman Rights", in accordancewithart.
24of theConvention.
Afewmonths later,independentproceedingsbeganbeforethe
EuropeanCommissionofHumanRightsonthe submissionof fourroughly
identicalapplications (Nos3321-3323/67and3344/67 of20/27 Sep-
tember 1967), allegingthatGreecehadviolatedcertainarticles
oftheConvention. The applicationswere filedbythe governments
ofDenmark,Sweden, NorwayandNetherlands. Atthe sametime, the
governmentsof Iceland,BelgiumandLuxembourgsubmittedletters of
agreementsupportingtheaction oftheabovegovernments,tothe
secretary-generaloftheCouncilofEurope.
Proceedings BeforeTheCommission
The proceedingsbefore theCommissionweredividedintothree
stages: (a)admissibilityoftheapplications: this stage lasted
until 24January 1968, (b)investigation; this stage startedwith
the submissionoftheobservationsofthe partiesandendedwiththe
submissionoftheir conclusionsto theSub-Commission,after thees-
tablishmentof theevidence (examinationofwitnesses, visitto
Greece), (c) reportof theSub-Commissionto theCommissionandthe
failure toreachafriendlysettlement. Then,the Commissionpre-
sentedits reportto theCommittee ofMinisters (6 October 1969).
Thus, theproceedingsbeforetheCommissionlasted fortwo
years.
DecisiononAdmissibility (24January,1968)
On24 January 1968, theCommissiondeclaredtheapplications
of the fourgovernments admissibleandfixedthedeadline forthe
appointmentof theparties'representatives totheSub-Commission
accordingtoart. 28of theConvention,and forthesubmissionof
theirmemorandaon themeritsofthe case.
- 158-
TheGreek Governmenthadsubmitted twomainarguments supporting
the non-admissibility
ofthe case.
Firstly,itchallenged thecompetenceof theCommission ta examine
the applications,particularlyin relation to art. 15 oft1.iConvention,on
thebasis tnat theyconcernedactions ofarevolutionarygovernment. Its
allegationwas thatit. came to powerafterarevolutionand thereforethe acts
thatbrought it to powerand the causes that led it todecide toattemptthe
revolution,were not subject to reviewonbehalfof theCommission,as that
would lead to approvalor disapprovalby the Commissionofthe revolutionitself.
TheCommission rejecLedtheobjection toits competenceas un-
foundedon theground thatnosuch distinctionregardingthe actions
ofarevolutionarygovernmentis made either in international law in
generalorunder the termsofthe Conventioninparticular.
It is tobe notedthat theapplicantgovernments intheircommon
suhmissionof December1967argued thatarevolutionarygovernmentmay
notinvoke "arevolutionarysituation whichit itselfhadcreated,as
ajustificationfor derogatingfromthe articlesofthe Conventionin
ordertoremainin power."
Secondly,theGreekGovernmenthadalsoarguedthattheCommis-
sion,in reachingits judgementwas inevitablybiasedand influenced
by thepositionadoptedby theConsultativeAssembly; ithadinmind
Resolution 351 of26 September 1967oftheConsultative Assembly,in
whichitdeclareditselfready "tomakeadeclarationatthe appropri-
ate time of the possibilityof thesuspensionofGreecefrom,orher
right toremainamemberof, theCouncilofEurope."
TheCommission rejectedtheaboveargumentdeclaringthatthe
Commission "in the exerciseof its functionsunderart. 19of the
Convention,is limited toaconsiderationofthe substanceof thecase-
file beforeitand thusacts incomplete independence asregardsany
outside body"and that "furthermoreandinparticular,there is no
basisfor the suggestionthat inthe carryingoutofits task, the
Commissionmightbesubjectto influenceasaresultofanydeclara-
tionof the Assembly."
DecisionontheAdmissibilityoftheAdditionalAllegations
(31March 19E3)
Threeof theoriginalapplicantgovernmentsfiledadditional
allegationson the basisofnew factsthathademerged. Theyclaimed
violationsofarts. 3and7 (prohibitionagainsttorture andretro-
activecriminallegislation) ofthe Conventionandarts. 1and3
(therightofeach persontopeacefulenjoymentofhispossessionsand
theobligation ofcontractingparties toholdfree elections)of the
FirstProtocol. In addressingthequestionofadmissibilityof the
abovenewallegations, theCommission facedcertainproblems.
The GreekGovernment claimedthat allegationsofviolationof
art.3shouldberejectedinaccordancewitharts. 26 and27(3) ofthe
Conventionon the groundofnon-exhaustionofdomesticremedies.
- 159-
TheCommissionconsidered twocounter-arguments put forwardby
the applicantgovernments inopposingtheabove claimofthe Greek
Government:
a)Since theallegationsof tortureandill-treatmentrelatedto an
"administrative
practice"of the GreekGovernment then, following
the Commission'sdecisionon the admissibilityof theoriginal
applications, art. 26 requiringthe exhaustionofdomestic remedies
didnotapply (theabove-mentioneddecisionof theConmmission stated
that the exhaustionof domesticremediesis not requiredwhere an
applicationraises, asageneral issue, thecompatibilitywiththe
Conventionof "legislativemeasuresandadministrativepractices").
b)Anydomestic remedieswhich mightbe shownby the respondent
governmenttobe availabletopolitical prisonersin cases of tor-
tureand ill-treatmentwere in fact inadequateandineffective.
TheCommission rejectedthe firstcounter-argumenton the
groundthat the applicant governmentshadnot offeredsubstantial
evidence toshow that suchadministrativepracticeexistedin the
absenceoforcontraryto specific legislation; therefore, its deci-
sionon theoriginal applicationsdidnotapply.
However, theCommission acceptedthatthe prevailingconditions
in the judiciarydid not allowthe Greekcourts to renderjustice in-
dependently. TheCommission besedits considerationmainlyon the
fact thattheGreekGovernment had suspendedthe judges' tenureof
office,whichwas guaranteed by the constitution,andtherefore
madepossiblethe dismissalof thepresidentofthe SupremeCourtand
29 judges.
Regardingviolationofart. 7of theConventionaswellasart.
1ofthe FirstProtocol, theCommission ruledthatthe mere factthat
provisionsofConstitutionalAct "C",werein directconflictwith
the above-mentionedarticlesofthe Conventionwasenoughtoconsider
thecomplair.ts of theapplicantgovernmentsadmissiblewithoutcon-
sideringwhether the aboveprovisions hadbeenappliedornot,aswas
requestedbythe GreekGovernment.
Finally,the Commission,althoughitruledthatthe fact that
no parliamentaryelectionshadbeenheldin Greece since February
1964didnot constitute aviolationofart. 3ofthe FirstProtocol,
decided thatthe questionrelatedtothe meritsof thecase.
Onthe abovegroundstheCommissiondeclaredthe newallega-
tionsadmissible.
DecisiononTheMerits
Inaddressingthecaseon itsmeritstheCommissionwascon-
frontedwiththe followingproblem:
UndertheEuropeanConvention,humanrightsprescribedthereinare
subjectto restrictionon twolevels:-
- 160-
a) Theenjoymentof certainrightsmaybelimitedbynationallaw
inthe interestof, forexample,publicsafetyandtheprotectionof
publicorder,to thepoint"necessaryinademocraticesociety". Those
limitations,expresslyallowedby theConvention,mayneverreachthe
pointofsuspensionofthe right.
b) Art. 15 ofthe Conventionallowsthe contractingparties to take
measuresderogatingfromtheirobligationsunder theConvention under
certainconditions,for example,incaseofwarorpublicemergency.
Art. 15 isnot intendedto establishanexception to theprincipleof
the ruleoflaw; itisonly acorrectivemeasure. Thus,itoffers
thepartiesasafetyvalve todealwithcertain exceptionalsituations
of seriousthreat topublicorderwithoutviolating theConvention.
The conditionsofapplicabilityofart. 15 wereprescribed
mainlybytheCommissionandthe Courtin the Lawless Case (4 YearBook
438 (1961)). There, the EuropeanCourtofHumanRights expresslydecid-
edthat "itisforthe courtto determinewhetherthe conditions laid
downin art. 15 for the exerciseoftheexceptional rightofderogation
havebeen fulfilledinthepresentcase." Thisrulingexcludes the
argumentthat the exerciseof the rightofderogation isnot subject
to reviewby theConvention institutions.
Furthermore the court inthe above-mentionedcase heldthat the
provisionrefers "to anexceptionalsituationofcrisisoremergency
whichaffects the whole populationandconstitutesathreatto the or-
ganisedlife of the communityofwhichthe state iscomposed". Subs-
tantially the same definitionwasadoptedbythe majorityofthe Com-
mission.
The Commissionwentfurther,however,addingthathavingregard
tothe highresponsibilitywhich agovernmenthas to itspeople to pro-
tect themagainstany threatto the lifeof thenation, itisevident
thatacertain uiscretion- acertainmarginrfappreciation- must
be left to the governmentindeterminingwhetherapublicemergency
exists.
Art.15(3) holds thepartyavailingitselfof therightofdero-
gationresponsible forkeeping thesecretary-general"fullyinformed
ofthe measireswhichithas takenandthereasonstherefor." In the
Lawlesscase the courtleft openthe questionofwhetherabreachof
this provisionwouldaffectthe validityofagovernment'sderogation.
TheCommission felt, however,thatalthoughthe questioncan
notbe arguedas anabstractproposition,itshouldbeaccepted,as
ageneralrule, thataviolationof art.15(l) wouldnotnullifyan
otherwisevalidderogationunderart. 15(1).
L
/
The applicant governmentsintheGreekcase challengedtheva-
lidityofthe derogationon twomaingrounds a)thatapublicemergency
didnotexistb)that themeasures takenwerenot "strictlyrequired
bythe exigenciesofthe situation". Theyalsocontendedthatthe
i/ T.Buergenthal62AJIL441,especially445.
- 161-
GreekGovernmentviolatedart. 15(3)bynot keepingthe secretary-
general informedof themeasureswhich it hadtakenandthe reasons
therefor.
The GreekGovernmentatthis stage againreferredtoits revo-
lutionaryoriginstating that "arevolution createssuchadistur-
bance inpubliclife that it seems meaninglessto try to assess the
actions ofarevolutionarygovernmentusingthe same criteriawhich
applyin the caseofasimple publicemergencythreatening the life
of thenation."
The argument of the Greek Government was based on the assump-
tion that the pre-existing threat to the life of the nation was the
causeof the revolution and that thiswas notsubject to reviewon
behalf of the Commission, as it would lead to approval or disapproval
by the Commission of the revolution itself.
This argument was not accepted. The Coimission held that art.
15 and the text of the Convention in general did notdistinguish
betweenagovernment confronting exceptional situations arid a revo-
lutionary government. As the Greek Government subjected itself to
the institutions of the Convention, showing its willingness to adhere
to it, the validityof the application ofart. 15 depends onthe ful-
filment of the requirement put forward therein.
Next was the primary question whether on April 21 there was a
public emergency threatening the life of the nation and whether this
emergency continued unLil the time of the judgement.
According to the standards set in the Lawless case the Greek
Government had to prove a) the facts that constituted the alleged
state of emergency b)that such facts did, in fact, constitute a
state of emergency threatening the life of the nation, taking into
account the above-mentioned "margin of appreciation".
TheGreek Governmentalleged that the causesof the revolution
and subsequently the derogation of the rights and liberties protec :ed
by the constitution and the Convention were (a) the imminent threat
ofacommunist take-over; (b) the institutional crisis; and (a) the
needto maintaispublicorder.
More specifically,theGreekGovernmentclaimedthat theout-
lawedCommunistPartyhad been involved in subversiveactivity,aiming
at thedestructionof the constitutional regimeand theviolentover-
throw oftheexisting government. Its activities,aided by thecor-
ruption and lack of powerof conventionalparties,had resulted in a
crisisofthe constitutionalorderandofpublic securityandorder,
reflectedin aconstantly turbulentatmosphere in the parliament,
swift changes in the successionof governments,partycorruptionand
aseriesofbloodydemonstrationsand strikes,accompaniedbyan in-
habilitytocontrol the situation. In short,theConnunist factor
wasdescribedasadecisiveelementwhichhad infiltratedall areas
ofpublic lifeand causedconstantinsecuritywhichcertainlywould
lead to abreakdownof thewhole statemachineryandpublic life.
- 162 -
The Commission examined about 30 witnesses with regard to the
existenceofthe Communistdanger, aswell as severaldocumentspro-
videdby theGreekGovernmentreferring to the armed forces and the
regime. In its report the Commission held that "... As regards the in-
ternal situation,the Commissionfinds it establishedbeyonddispute
that, following the political crisis of July 1965, there has been in
Greece a period of political instability and tension, of an expansion
of the activities of the Communists and their allies and of some public
disorder. It is alsoplain that thesethree factors whichhavealready
been reviewed were always linked and interacting". (para. 155).
The Coimnission did not find that the evidence adduced by the res-
pondent government showed that a displacement of the lawful government
by force of arm;, by the Communists and their allies was imminent on
21April 1
9
u7, indeed there was evidence indicating that it was neither
plannud at that time, nor seriously anticipated by either the military
or police authorities. In particular:
1) the casesof arms found and described to the Sub-Comnission were
negligible in size and CluantitV. FormerPrimeMinisterKanellopoulos
stated that no substantial arms deposits had been found or reported
to his government. General Papageorgopoulosdid notconsiderthe im-
portation of hunting guns to have been sufficient for an "uprising of
great frce", and no evidence was produced of the use or attempted use
of firearms or explosiveseitherin street demonstrationsor elsewhere.
1) the authors of the "generalplanofaction"attributed toGene-
ral Argyropoulos state in it thattheyenvisaged the useof forcein
threepossible situationsonly:
- the carrying out of theMayelections withuse offorce or
fraudby the ConservativeERE PartyofPrimeMinisterKanel-
lopoulos;
- the indefinitepostponementofelectionsby thisparty,
basedonacamouflaged royal dictatorship;
- unfavourable election results for the Rightandthe refusal
to surrenderauthorityto themajorityparty.
The authorsdeclaredthat forcewas tobe usedby themonly in
the secondand third situations. The second situationwas tobemet
by "protest meetings pressed as far as bloody clashes ... " "Neither
of these conteimplated reactions to moves by the Right involved the
imminent overthrow of the lawful government by force."
3) the fact that the respondent government, having had full access
to all available information whether published officially or secretly
had been able to produce only the very slender evidence already dis-
cussed, itselfdemonstrates that no Communist take-over ofgovernment
by force of arms was anticipated in view of the above-mentioned
facts the Coimioission did not accept the argument of the Greek Govern-
ment concerning the existence of a Communist threat.
As far as the institutional crisis and the threat to public
orderwereconcerned the Commissionheld that the indicaticnsmentioned
such as street demonstrations,strikes andwork stoppages,didnot
- 163 -
attainthe magnitudeofapublicemergency. "Thoughthe streetde-
monstrations,as is normal anywhere,createdanxietyforpersonsand
propertyin AthensandSalonicathe recorddoesnot showthe police
forces to havebeen atoreven near the limitoftheircapacities to
copewithdemonstrationsanddisorder." TheCommissionbased its
decisiononthe testimoniesof governmentpersonnel that thegovern-
mentwas in effectivecontrol ofthe situation. Their statements
made clear that the University of Salonica had been cleared ofits
occupants "in a few minutes" on 11 April 1967, that the order pro-
hibiting the "Marathon March" had been without violence and
that the intervention of the army had never been necessary.
The argument of the Greek government was not ,:ell-founded
and consequently appeared "dramatic" and unrealistic in the opinion
of the Commission. The allegation that the situation as presented
constituted a national emergency was addressed to the Commission at
a time when other countries in Western Europe were experiencing si-
milar situations. The Commission held that the picture of strikes
and work stoppages did not differ markedly from that in many other
countriesofEurope.
In evaluating the fact, the Commission had to decide whether,
taken together, they were of such intensity as to create a public
emergency threatening the life of the Greek nation. In its decision,
it held that "this examination is itself limited by th- criteria of
what constitutes a public emergency for the purpose of art. 15. In
particular the criteria of actualityor imminence imposes alimita-
tion in time." The criteriamentionedabove weredrawn from the
decision of the European Court of Human Rights in the Lawless Case,
formulatedas follows: "anexceptional situaticnof crisisoremer-
gencywhichaffects the wholepopulationandconstitutes athreat
tothe organisedlifeofthe communityofwhichthe state is composed."
Besides theactual facts, the GreekGovernmenthad therefore to prove
thatthe claimedpublicemergencyi)was imminentoractual, ii)
affectedthewholenation, iii) threatenedthe continuationof the
organisedlifeofthe community,and iv)wasanexpressionofa
crisisordangerwhichwasexceptional, in the sense thatnormal.
measuresor restrictions,permittedbythe Convention for themain-
tenanceofpublicsafety,healthandorder,were plainly inadequate.
As hasalreadybeenmentioned, art. 15 establishes the qualitative
standardforrestrictions in fundamentalfreedoms.Although indivi-
dualarticlesallow "restrictions"offundamental freedoms, these
restrictionscan neverreach thepointofcompleteabolitionof
these freedoms.
Proceedings before theCommitteeofMinistersof the Councilof Europe
Article32 of the Conventionprovidesthat ifwithin3months
of the transmissionof the Reportto theCommitteeofMinistersof
theCouncilofEurope thequestionatissuehas notbeenreferredto
theCourt (aswas the case here), "theCommitteeofMinistersshall
decidebyamajorityoftwo-thirds ofthemembersentitledto siton
theCommitteewhether therehasbeenaviolationof theConvention."
If itdecidesthat therehas,theCommittee shallprescribeaperiod
- 164 -
duringwhich theContractingPartyconcernedmusttakethe measure.
requiredbythe decisionof the CommitteeofMinisters". If 'satis-
factorymeasures'havenot beentakenwithin theprescribedperiod,
theCommitteeofMinisters "shalldecide (bythe same majority)what
effectshallbegiven to its originaldecisionand shallpublishthe
Report"of the Commission.
When theConitteeofMinistersmeton12 December1969 itwas
evident to the Greekgovernment that therewasmore thanthe necessary
majorityin theCommitteeto support adecision that therehad beena
violationof the Convention: that the governmentwouldbecalledupon
to take the necessarymeasuresto bringitself intoconformitywith the
Convention. In order toavoid thiscondemnation the Greekgovernment
denounced theEuropeanConventionandwithdrewfrom the Councilof
Europe.
TheGreekcase illustrates theeffortsoftheconcerned European
institutions to protecthuman rights withinthe frameworkoftheCoun-
cil ofEurope'spolicyofgreaterEuropeanintegration.
Ti2violation byGreeceof 14 articlesof the Conventionconfirm-
edby theCommission'sReportamounted inpractical terms toarejec-
tionby the GreekGovernmentof theConventionas awhole. The inves-
tigationby the Commissionwasnot re.t"ictedtocertainisolated
factsbut involvedan examinationof thebasicstructureandinstitu-
tions ofthe regime.
Since the violations took placeagEinst abackground of newly
enforcedlegislativemeasuresandadministrativepractices, theun-
avoidable conclusion,andtheone to which the membersofthe Committee
ofMinisters of the Councilof Europecameonexamining theCommis-
sion'sReport,was thatthe Colonels' regimerepresentedasystemof
valuesandaformofstateauthorityentirely incompatiblewith the
valuesofwesternEuropeandemocracyasenvisagedin the Convention.
Thiswas clearlystatedbythe FrenchForeignMinisterJeande
Lipowskiwhosaidafewminutesbeforethe dramaticGreekwithdrawal,
"Atthe presentmeetingwhatis being debatedisacertainconception
of Europe. It isnot possiblethat suchviolations ofdemocracybe
accepted."
- 165 -
AppendixG
StatutoryDecree 188/1969- art. 2(4)
In formingits opinionthe committeeis obligedtotake into
considerationany pieceof information likelyto elucidatethe par-
ticular caseof the person underadministrativedisplacementand
especiallyinformationonwhich thedisplacementwas decided,as
well as information submitted or referred to by the person himself.
The committee should also t:ake into consideration the nature of the
activities which led to the displacement, the reason and the circum-
stances under which he/she acted, his/her criminal record, and his/
her behaviour during thedisplacement. The committee should also
make a judgement on the anticipated behaviour of the displaced per-
son and the eventual risk to the public security and order which the
suspension of the displacement would 6ntail. The coamittee may ask
for information from any judicial, administrative, military police
andsecurityauthorityandmayalsobegivenaccess to classified
information from the personal file of the displaced person.
Appendix H
ConstitutionalAct "Eta" (No.8)
Regardingwithdrawing thecitizenshipofthosewhoactunpa-
trioticallyand regardingconfiscationof theirproperty.
THE CABINET COUNCIL
Havinghad in mind:
1) ConstitutionalAct "Alpha"and
2) the need toprotectthenation fromcitizenswhoactunpa-
triotically,decides:
Article 1
1. Greekcitizens residingabroad, temporarilyorpermanently,
orhavingmorethanone citizenship,whoactorhaveactedunpatriot-
icallyorwhoperformacts incompatiblewiththeGreekcitizenship,
orcontraryto the interestsofGreece,or forselfish reasons,
accordingto articles 1and2of the ObligatoryLaw509/1947, asthis
hasbeenmodified througharticle 2paragraph 1 ofDecree "MiEta"/
1947, for dissolvedPartiesorOrganisations,orsuch in the process
ofbeingdissolved, canhedeprivedof theirGreekcitizenshipby
decisionof the ministerof the interior,againstwhichitis not
allowedto appealorto requestannulment.
- 166 -
2. As unpatrioticactivityinaccordance withthe present law, is
considered the counterfeiting
(falsification)
, by any means and inten-
tionally, of the real facts as well as the spreading of false news or
information, in this case falsification
or spreading entails defamation
of the state or its authorities to the international public opinion.
3. The violators ofparagraph I (above) are Gubject to a minimum
sentence of at least three months imprisonment and to a fine of at
least drs. 20,000).
In case t-he act was committed abroad by fellow co'lntrymen, the
persecution takes place ex officio, independently of the conditions of
article 6 of the Penal Code.
Modification or suspension of the penalty is not allowed, and
the appeal has no suspending force.
1. The decisions of withdrawal of the Greek citizenship, issued up
to thepublicationof the present since 21 April 1967, areconfirmed.
Article2
1. It is possible to order the confiscationof the wholeorofa
part of the immovable and movable property of any person who loses the
Greekcitizenshipinaccordancewitharticle 1.
2. Aspropertywhichcanbe confiscated, is consideredalsothe
property in the name of the husband or the wife of those who are declared
having lost the Greek citizenship.
In this case the confiscation cannot exceed 1/3 of the whole
immovableproperty.
3. Transmissionofelementsofproperty,belonging topersons
according to parayLaphs 1and 2,madeupto twomonthsbeforethe issue
ofthe decisionaccordingtonextarticleaboutconfiscationis null
and void.
4. Theconfiscation accordingto thepreviousarticleis imposed
bydecisionof the Courtofthe firstinstanceattheplaceofthe
last residenceorstay ofthe personwhowill be deprivedofhisGreek
citizenship, after proposal of the minister of the interior, to be
transmittedto the court throughthe competentpublicprosecutor.
5. No legal actionis allowedagainst the decisionofthecourt of
the first instance.
6. Upon issuanceofthe decisionaccordingto the aboveparagraph,
the propertytobe confiscated is transferred to the fullpossession
of theGreek state,andthe relativedecision shallbecommunicated
bythe ministryoffinance to the competentdirectoroftaxation.
- 167 -
Thevalidityofthe presentact commencesuponitspublication
in the gazetteofthe government.
Athens, 11 July 1967
PrimeMinister Vice-PrimeMinister
Members
AppendixI
ConstitutionalAct "Delta" (No.4)
Concerning the restrictionof therightto appealtoandre-
questannulment from theCouncilofState.
THECABINETCOUNCIL
having inmind the suspension throughConstitutionalAct "Beta"of
the regulationsofarticle 101 ofthe constitutionand thefulfilment
of theintendedaim,i.e. torenderthepublic serviceshealthythe
soonestpossible,decides:
ArticleI
It is fromnowon inadmissible to appeal to theCouncilof
State orto request, accordingtoarticle 83, paragraph1,pointc)
of the constitution, annulmentagainstanyadministrativeact, issued
fromApril 21 until publicationofthe presentact,oragainstthose
actswhichwillbeissued fromnowon, on subjectsconnectedwith
the conditionofservice anO the positionof functionariesin general
or judicial functionaries, the employeesof stateenterprises and
agenciesbelongingto them,membersof the army, the state safety
policeandthe church (clergymenorpriestsofanyrank), aswellas
againstanyadministrativeact issuedor tobe issued inexecution
ofObligatoryLaw 4/1967 asamended.
Article 2
Theabove-mentionedregulationappliesalsoto theappeals and
requests of annulmentsalreadypendingwiththeCouncilof State
againstadministrativeacts issuedafter 21 April,1967.
Article 3
The validityof the regulationsof thepreseitactcanbe
abrogatedor suspended,inwholeor inpart,bydecisionsof the
CabinetCouncil,publishedin thegazetteofthegovernment.
Athens, 23 May 1967
PrimeMinister
Vice-PrimeMinister
Members
- 168 -
AppendixJ
ConstitutionalAct "KappaDelta" (No.24)
Concerningthere-organisationof theOrdinaryCourts.
THECABINET
Having regard to JudicatureActNo./A1967.
Havingregardto the needtore-organise the OrdinaryCourts
decidesasfollows:-
Article1
1. Withinthreedays fromthe publicationofthe presentinthe
officialgazette, the life-tenureandpermanence ofordinaryjustice
administratorsunderarticle88of the constitutionis herebysus-
pended. Theycanbedismissedwithin thatdelayif:
(a)forany reasonwhatsoever theydonotpossess the moral
staturerequiredforexercising theiroffice,
(b) they are not imbded with healthy social principles, or
else, if their general conduct within society or the
bodyoflaw cannotbe deemedasbeingcompatiblewith
theirdutiesandthe dignityof theiroffice, thusresult-
ing in aloweringoftheir prestigeamong theircolleagues
andthe public.
2. The dismissalof judicial functionaries referredtoin the
precedingparagraphwillbeeffectedbydecisionof thecouncilof
ministers, followingan inquiryinto the elementsof theircase,by
royaldecreesproposedby it.
3. Dismissalsunder the presentact are notsubjectto recourse
orplea forannulmentbefore the councilofstate, orlawsuitfor
damagesbeforeordinarycourts.
Article 2
If, asaresultofdismissalsfromofficeeffc-ted underthe
provisions ofthis act,vacanciesshouldoccuramonr hosemembersof
the JudicialCouncilchosenby lotfromamong the jesof theCourt
ofCassation (Areopagus)theymaybereplacedbyt. sameprocedure
atapublicsessionof the 1stSectionof thatcourtwithinonemonth
of the publicationof thisofficial gazette.
Article3
Thisactshall comeintoforcewitheffect fromitspublication
inthe official gazette.
Athens, 28 May 1968
President Cabinet Vice-President
Members
-0-0-0-0-
- 169 -
THESTATEOFEMERGENCY ININDIA
CONTEN.S
Page
I. THECOLONIALPERIODANDTHEWRITINGOFTHE
CONSTITUTION............................................ 171
II. THEPREVENTIVEDETENTIONPOWERSUNDERTHE
CONSTITUTION............................................ 174
III. FIRSTPROCLAMATIONOFEMERGENCY...........................176
IV. THESECONDPROCLAMATIONOFEMERGENCY..................... 178
V. THETHIRDPROCLAMATIONOF EMERGENCY ......................178
VI. THEJUDICIALRESPONSETOEMERGENCYPOWERS................ 185
VII. PLUGGINGTHELOOPHOLES- THEAMENDMENTSTOTHE
CONSTITUTION............................................ 189
VIII. CONCLUSIONS............................................. 190
-0-0-0-0-
- 171 -
I. THECOLONIALPERIODANDTHEWRITINGOFTHECONSTITUTION
Thehistori =l originsof the Indianemergency legislation
has itsroots in the Britishrule. The United KingdomParliamentpassed
statutes, first to regulatethe affairsofthe EastIndia Companyand
later for the governanceof Indiaitselffrom1858,when,byanActof
Parliament, the BritishCrownassumed sovereigntyoverthe company's
territoriesin India.
TheGovernor-Generalfor longexercisedlegislative aswell
as executivepowers. With thegrowthjf legislativeinstitutions, it
became necessaryto endowhimwith emergencylegislative powers-
Section72 of theGovernmentof IndiaAct,1919, stated :
"TheGovernor-Generalmay, in cases ofemergency,make and
promulgateordinances for thepeaceand goodgovernmentof
BritishIndiaor any partthekeof, and anyordinance so
madeshall, for the spaceofnotmore than sixmonths from
its promulgation,have the like forceof lawas anAct
passedby the Indianlegislature."
TheGovernmentof IndiaAct, 1935, which soughttoeFtablish
afederation, separatedtheGovernor-General's power to issueordinances
duringarecessof the legislaturefrom hispower to issueaProclamation
ofEmergency. In his discretionunder Section 102, hehad the powerto
declare that "agraveemergencyexistswhereby the securityofIndia is
threatenedwhetherby warorinternaldisturbance."
On3September1939, followingthedeclarationof war between
BritainandGermany, the Governor-Generalmadeaproclamationof
emergencyurderSection102. TheDefence ofIndiaordinancewasprom-
ulgated, whichwassubsequently replacedby th3 Defenceof IndiaAct,
1939. Sectioi2of theActconferredwiderule-makingpcwersonthe
Government of India. TheAct authorisedthe establishmentofSpecial
Tribunals to try casesofviolationsof theRules,knownas the Defence
ofIndia Rules,1939. Rule 26empowered thestate to detainaperson
withouttrial.
The IndianIndependenceAct, 1947,passedby the British
Parliament,conferred independenceon Indiaand empoweredthe Constituent
Assemblyto frameaconstitution.On14 August 1947, aday before inde-
pendence, the Governor-Generalmade the India (ProvisionalConstitution)
Order,1947, making numerousmodificationstcthe 1935 Act,butSection
102 oftheAct,embodying theemergencyprovisions,was retainedtobe
invoked onlyon the adviceof the CouncilofMinisters.
Meanwhile, the ConstituentAssembjy,whichfirstmet on9
December 1946,went aheadwithits work ir Jonditions oftrauma,which
had aclearimpact on theirdeliberations. Indiawaspartitioned
amidstunprecedentedcarnage anddesrructioi.. Someof the erstwhile
primary rulersof the IndianStateswantedto remainoutsidethe union;
inneighbouringBurma the politicalleaderswere assassinated; and,
finally, therewas anarmed revoltbycommunists inone oftheStates.
All theseevents influenced thedraftsmenof theConstitutiontomake
the unionstrongand endowit withample emergencypowers.
- 172 -
Articles 275 to 280oftheDraftcontainedthe emergencypro-
visions. Thesedraft articlesweredebatedat length. Theemergency pow-
erswereconsideredas a necessaryeviland theywere enactedwithsome
modifications.
Themodifications
were as follows:
the expression 'warordomesticviolence'was changedto 'war
or external aggression,or internaldisturbance'.
Theinitial
termoftheproclamationpendingparliamentary
approval,was
reduced fromsixmonths to two. Twomoreclauseswere added,
one toenable anOrder to be appliedonlytoapartof the
country,and the otherrequiringit tobe laidbeforeeach
Houseof Parliament.
Articles352, 353, 358,and 359as theyoriginally figuredinthe
Constitution adoptedby theConstituentAssembly,read as follows:
"352. Proclamation
of Emergency-
(I.)Ifthe Presidentissatisfied thatagrave
emergencyexistswherebythesecurityofIndia
orofanypartofthe territory thereof is
threatened,whether bywarorexternalaggression
orinternal disturbance,
hemay,byproclamation,
makeadeclarationto thateffect;
(2.) AProclamation
issuedunder Clause i.) -
(a)maybe revokedbyasubsequentProclamation;
(b)shall be laidbefore eachHouseofParliament;
(c)shallcease tooperateat theexpirationof
twomonthsunlessbefore the expirationof
thatperiodit hasbeenapprovedbyresolutions
ofbothHousesofParliament.
Provided thatif anysuch Proclamation
isissued
at atime whentheHouse ofthePeoplehas been
dissolvedorthedissolutionoftheHouseofthe
Peopletakesplace duringtheperiodof two months
referredtoinsub-clause (c), and if aresolution
approvingtheProclamationhas beenpassedbythe
CouncilofStates,but noresolutionwithrespect
tosuchProclamation
hasbeenpassedbythe House
ofthePeoplebefore theexpirationof thatperiod,
the Proclamation
shallcease tooperate at the
expirationof thirtydays fromthedateonwhich
the Houseof thePeople firstsitsafterits re-
constitution
unlessbeforetheexpirationofthe
saidperiodof thirtydays aresolution approving
the Proclamationhasbeenalsopassedbythe House
of thePeople.
(3.) AProclamation
ofEmergency declaringthatthe
securityofIndia orofanypartof the territory
thereofis threatenedbywar orby external
aggression orbyinternaldisturbancemaybemade
beforethe actualoccurrenceofwarorofanysuch
aggressionordisturbance ifthePresidentis
satisfiedthatthere isimminentdanger thereof.
- 173-
353. Effectof ProclamationofEmergency- whileaPro-
clamationofEmergency isinoperation,then-
(a)notwithstandinganythingin this Constitution,
the executivepowerof the unionshall extend
tothe givingofdirections to anystate as to
themanner inwhichthe executivepowerthereof
istobeexercised;
(b)thepowerof Parliament to makelaws with
respecttoany mattershall includepower to
make lawsconferringpowersand imposingduties,
orauthorising the conferringofpowersand the
impositionofduties,uponthe unionorofficers
andauthorities oftheunionas respectsthat
matter,notwithstanding thatitis onewhich
isnotenumerated.inthe union list.
358. Suspensionofprovisionsofarticle 19during
emergencies - while aProclamationofEmergencyis
inoperation, nothing inarticle 19 shall restrict
the powerof the State as definedinPart IIIto
make anylaworto takeany executive actionwhich
the Statewould,but fortheprovisions contained
inthat part,be competenttomakeor totake,
butany lawsomadeshall, to theextentof the
incompetency, cease tohave effectas soon as the
Proclamationceasestooperate,exceptas respects
things doneoromitted to bedonebefore the law
soceases to haveeffect.
359. Suspensionofthe enforcementof the rights con-
ferred byPartIII duringemergencies -
(1.) Where aProclamation ofEmergency isin
operation, thePresidentmayby Orderdeclare
thatthe right tomove anyCourt forthe enforce-
mentofsuchofthe rights conferredbyPart III
asmaybementionedintheOrderand all pro-
ceedinyspendingin anyCourt for theenforcement
of therightssomentioned 1Ii remainsuspended
for theperiodduringwhich the Proclamation isin
forceor for such shorterperiodasmaybe
specifiedinthe Order;
(2.) AnOrdermadeaforesaidmayextendto thewhole
or anypartof the territoryof India;
(3.) EveryOrdermadeunderclause (1.) shall,as soon
ajmaybe afterit 's made,be laidbeforeeach
Houseof Parliament."
- 174 -
II.* THEPREVENTIVE
DETENTION
POWERSUNDERTHECONSTITUTION
Beforeconsidering
the usewhichhasbeenmadeofemergency
powers,itisperhapsappropriate
to summarise
the constitutional
and
legalaspectof the lawsofpreventive
detentioninIndia.
Preventive
detention
lawswerealso alegacyofBritishrule.
Enactedunderwar-timeregulations
(Defencrof IndiaAct and Rules,
1939) theywere continued
inthe turmoil of thepost-waryearswhen
thedraftConstitution
was prepared.
Preventive
detentionin normal
times wasrecognised
as alegitimate
subjectof legislation.
The only
questiondebated by theConstituent
Assemblywasthe natureof the
constraints
to this undemocratic
power.
Part III of the Constitution
ofIndia,1950,guaranteed
certain
fundamental
rights. Itincludedthe right to life and personal
liberty.
"Noperson shall be dcprivedofhis life or personallibertyexcept
accordinq
to procedure
established
by law." (Article21). Provision
was alsomade inArticle 22 inhibiting
detention
withouttrial andguaran-
teeingdisclosure
of the groundsofarrestandofthe right tobe defended
byalegalpractitioner.
Article22 (1) and (2) inthe 1950Constitution
readas follows:
"22. (1)Nopersonwho isarrestedshallbedetainedincustody
wizhoutbeing informed, assoonas may be, ofthe
grounds for sucharrest norshall hebedenied the
righttoconsult, and to bedefendedby, alegal
practitioner
ofhis choice.
(2)Everyperson whoisarrestedanddetainedincustody
shall beproducedbefore the nearestMagistrate
within
aperiodof twenty-four
hoursof sucharrestexcluding
the timenecessary
for the journeyfrom theplaceof
arresttothe court of theMagistrate
and nosuchper-
son shall be detainedincustodybeyond thesaid period
withoutthe authority
ofaMagistrate."
But,settingthe patternofpost-warconstitutions,
therewas
aclause (3)to article 22, reading:
"(3) "Nothinginclauses (1)and (2), shall apply toany
persorwho isarrestedanddetainedunderanylawproviding
forpzeventive
detention."
Thelimitswithinwhichsuchalaw couldbemadewere laiddown
inclauses (4) to (7):
"(4) Nolawprovidinq
forpreventive
detention
shall authorise
t:;e detention
ofaperson foralonge:7 periodthanthree
months unless
(a)anAdvisoryBoardconsisting
ofpersonswho are,or
havebeenor are qualified
tobe appointed
as,Judges
ofaHighCourthasreportedbeforetheexpiration
of
the saidperiodof threemonthsthatthereis inits
opinionsufficient
cause for suchdetention:
Providedthat nothingin thissub-clause
shall authorisethe
detention
of anypersonbeyondthemaximumperiodsubscribed
- 175 -
byany lawmadebyParliamentunder sub-clause (b)
of clause (7); or
(b)suchpersonis detainedin accordancewith the
provisions of any lawmadebyParliamentundersub-
clauses (a)and (b)ofclause (7).
(5) Whenany personis detainedin -ursuanceofanorder
made underanylawprovidingfor preventive detention,the
authoritymakingtheorder shall,as soonas may be,
communicate to suchpersonthe groundson which theorder
has beenmade andshall affordhim the earliestopportunity
ofmaking arepresentation against the order.
(6)Nothing inclause (5)shall require the authoritymaking
any suchorderas is referred toin that clause todisclose
factswhichsuchauthority considers tobe againstthe
publicinterest todisclose.
(7)Parliamentmaybylawprescribe-
(a)the circumstances underwhich, and the classor
classes ofcases inwhichapersonmaybe detained
for aperiodlonger than threemonthsunder anylaw
providingforpreventive detentionwithout obtaining
the opinionofanAdvisocyBoard inaccordancewith
theprovisionsofsub-clause (a)of clause (4);
(b)themaximumperiodforwhichany personmayin
any classor classesofcasesbe detainedunderany
lawproviding forpreventivedetention; and
(c)theprocedure tobefollowedby an AdvisoryBoard
in an inquiryunder sub-clause (a)ofclause (4)."
Preventivedetentionwasonlypermittediftherewas alaw
authorising it- detentionbyexecutivefiatwasruled out. Eventhe
powertoenact laws for preventivedetentionwithout trialwas not
unlimited: it was subjecttothe constraintsin clauses (4)to (7)of
Article 22. Thefundamental rightsguaranteed byclauses (4)to (7)
topersonsdetainedunderanylaw for preventivedetentionrelated to
themaximumperiod ofdetention,theprovisionofanAdvisoryBoard
to considerand reportonthesufficiency of the cause fordetention,
the rightto inspection ofthe groundsofdetentionand the rightto
have theearliestopportunityofmakingarepresentationagainstthe
orderofdetention. Reasonablyadequatesafeguards,itmaybethought,
but therewas acatch in this, the longestconstitutionaldocumentin
theworld. It wascontained inArticle359 inPartXVIII, relatingto
EmergencyProvisions. ThisArticleprovidedthatwhere aProclamation
of Emergencywas inoperation,theexecutivecan bycrderdeclarethat
theright tomoveany court for the enforcementofanyof the fundamental
rights conferredby Part III of the Constitutionshall remainsuspended
for theperiodduringwhichthe Proclamationis in force.
Inpursuanceof Article22, Parliamentenacted the Preventive
DetentionAct, 1950,empowering the centraland theState Governments
to detainaperson "if satisfied ...it is necessaryto doso" in order
topreventhimfrom"actingin anymannerprejudicialto the defenceof
India,relationsofIndiawith foreignpowers, or the securityofIndia,
or the securityof theStateor the maintenanceofpublicorder,orthe
maintenanceof supplies andservicesessential to the community."
- 176-
TheAct was to cease to haveeffect on1April 1951, but it was
extended from time to timeuntil 1970when it lapsedbecausethe Govern-
mentcouldnot musteramajority in the Parliamentfor anextension.
It was re-enactedsubstantially underadifferentname in 1971as
theMaintenanceof InternalSecurityAct, whichcame into forceon 2July
1972. This was repealed in .971, but on23 September1980, the President
promulgated theNational Securityordinancewhichwas later re-enactedby
the Parliamentas the NationalSecurityAct, 1980.
Thesepreventivedetention laws were used by the Governmentin
ordinary times and morewidelyduringstates of emergency.
III. FIRSTPROCLAMATIONOF EMERGENCY
The Constitutioncame into forceon 26 January 1950,but Article
352remainedunused for alittle overadecade thereafter.
On 26 October 1962, afterChina's attackon India, the President
issuedaproclamation underArticle 352 declaringthatagrave situation
existedwhereby the securityof Indiawas threatenedby external aggres-
sion.
On the sameday, the Presidentpromulgated the Defenceof India
Ordinance. Section3ofthe ordinanceempowered the CentralGovernment
tomakerules for securingthe defence ofIndia, the publicsafety, the
maintenance of publicorder or the efficientconduct ofmilitaryopera-
tionsorfor maintaining supplies and servicesessential to the lifeof
the community. The CentralGovernment accordinglypromulgated the
Defenceof IndiaRules. Under the Rules, nogrounds of detentionneeded
to be given to the detainee, nor anyopportunity for showingcause against
the detention. There was no independentAdvisoryBoard toreviewdet-
entions. The maximumperiodofdetentionwas also not fixed.
The Ordinancewas re-enactedby Parliament as the Defence of
IndiaAct, 1962. Section13 of theActempowered the State Governments
to constituteSpecialTribunals to tryoffencesunder the Rules. Pre-
trial committal proceedingsweredispensedwithand the Tribunalswere
authorisedto adopt asummary procedure. Appeal to the HighCourt lay
only if the sentencewas imprisonment for atermof five yearsormore.
The Presidentalso madean orderunderArticle359 (1)suspending
the right tomove any Courtfor the enforcementof the fundamental rights
relatingtopersonal liberty andprotection againstarbitraryarrest
embodied inArticles 21 and 22 respectively. Thisorderwas later amen-
ded to include Article 14 (righttoequalitybefore the law)alongwith
Articles21 .nd 22.
Withinone monthof theseRules coming into force,morethan
200membersof the IndianCommunistPartyin various IndianStates,
including leadersof theopposition in WestBengal,Kerala andAndhra
Pradesh,were arrestedon the grounds thattheir activitieswereagainst
thenationalinterest. Atthe end of thefourthmonththe then Home
Minister informed the Parliament that 957 personshadbeendetained
under the Defenceof IndiaRules,andthat ofthe arrestedpersons199
hadbeenreleasedand theremaining758 were stillin detention. These
figures showthe consequences ofthe first EmergencyProclamation.
- 177 -
China ultimately declared a cease-fire on 21 November 1962.
The hostilities ceased from that date, but the Emergency lingered on
amidst widespread 'harqes of abuse of its powers.
In the worrds of Nr. M. C. Setalvad, a former Attorney-General
of India:
"The arbitrary and extensive powers assumed under the
Defence of India Act and rhe Rules have been exercised
for the very ordinary purposes of Government - to pre-
vent traders from hoardinq corunodities, to put down
strikes ,and for a variety of other norma, functions
which could and should be dealt with under the powers
conferred b-' the ordinary law of the land." (1)
The Eerq,ncy icquired a new lease of life, as it were, with the
outbreak of armed conflict between India and Pakistan across their borders
in April 1965, followed by a war in September that year. A cease-fire
took place in accordance with a U.N. Security Council resolution and the
two Heads of Government nigned a declaration on 10 January 1966, laying
down the procedure for the normalisation of relations.
:owever, even after the normalisation, the Emergency continuer,
in force and criticisms of abuse of power begin to be voiced even by the
Courts.
In February 1966, 34 jurists and prominent citizens belonging
to no particular political creed appealed to the President and the
Prime Minister to take the bold step of revoking the Emergency. The appeal
emphasized that the issue was not one of polic; or for political debate:
"The issue relates to the basic foundations of a democratic
government. A democratic Constitution necessarily has to
containprovisions toenable the nation to tideover emergen-
cies. 3ut the use of these emergencypowerswhenthe emergency
has longreceded is to turnademocraticgovernment into what
has beencalled aconstitutional dictatorship." (2)
The International Commissionof Jurists noted thesedevelopments
and commented on them in its Bulletin in Mlarch 1967:
"TheInt2rnational CommissionofJuristsdoes not seek to
arrogatethe right of theGovernment to decidewhethercir-
cumstancesyetexist whichwould justify the continued
suspensionof fundamental rights. Butsuchprolongedsuspension
of those rights, which are the very essence of a democratic
formof Government, whenthe features ofagrave emergency
do not appear to existany longer, hasgiven rise to increasing
concern in all parts of the free worldwhere Indiahas been
looked upon as the bastion of fundamental rights and the
Ruleof Law in Asia."
On 18 March 1967, the home Minister announced that theGovernment
of Indiahad decidedto revoke the Stateof Emergency witheffect from
1July. AProclamation revoking theProclamationof Emergencywas
issued.
(1) The IndianExpress, 18 August 1965.
(2) Quoted in ICJ Bulletin,no.29-1967.
- 178 -
IV. THE SECOND PROCLAt11TION
OF EMERGENCY
On 3December 1971, followingthe outbreak ofhostilities
between
India and Pakistan, an Emergency was declared for the second time.
Following the declaration
of Emergency,
the Parliament adopted the
Defence of India Act, 42 of 1971 and the Government
promulgated
Defence
of India Rules, 1971, in exercise of the powers conferred by Section 3
of the Act.
5ection 6 (6) of the Act amended the Maintenance
of Internal
Security Act inter ilia to add Section 17A which provided that a person
may be detrained without obtaining the opinion of the Advisory Board for
a period longer than three months, but not exceeding two years, if the
detention had been made on the grounds of the "defence of India ...
Security of State or the maintenance
of public order."
As before, even after the hostilities
between India and Pakistan
ceased, the Emergenc, continued.
It was even reinforced
by a Proclama-
tion of the President in November 1974 suspending
the right to seek the
assistace
of the Courts for enforcement
of fundamental
rights.
In early 1975, in a habeas corpus petition before the Supreme
Court, the validity of the continuation
of the Proclamation
of Emergency
issued on 3 December 1971, was challenged.
The contention was that
there was no threat of external aggression.
The arguments in the peti-
tion lasted from March 1975 to the beginning of May 1975 when the Supreme
Court closed for its summervacation.
Before judgment could be delivered
on the re-opening of the Supreme Court in July 1975, a new Emergency
was declared.
V. THE ThIRD PROCLAMATION
OF EMERGENCY
Latein the nightof 25 June 1975, the PresidentofIndia signed
the followingProclamation:
"I,President
ofIndia, by this Proclamation
declare that
agrave emergencyexists wherebythe securityofIndia is
threatened
by internal disturbance.'
In the two Emergencies,
Indiahad knownuntil 1975, duringthe
quartercentury since its Constitution
cameinto force, the justification
for the initialProclamations
in 1962 and in 1971 was never indoubt.
The armed hostilities
in eachcasewere there forall to see. But for
the 1975 Emergency, the justification
for theProclamation
onthe basis
of "internal disturbance"
was disputedby many.
- 179 -
The situation
wis swnmarised
later thatyearinICJ Reviewno.
15 in the following
terms:
bThe background
to the aisis
Ever since Independence
in 1947 India has been governed
by the
Congress
Party., in the 1971 elections,
after asplit within the party,
Mrs Ghandi
was returned
to power with a two-thirds
majority
in
Parliament.
Her success was repeated
the following
year in the State
elections
when all but two ofthe States returned
aCongress
majority.
Since then the popularity
ofthe Congres
Party has fallen steeply. The
government's
failure to control the high rate of inflation,
bad mon-
soons causingpoorfood crops, the deteriorating
economic
situation,
a
flourishing
black market.incompetence
in the administration,
growing
charges of corri-ption
involving
members
of the leadership
of the
ruling party, as wehas internal quarrels
within the party, had all
contributed
to this loss of prestige,
which was reflected
in aseries of
government
defeats in by-elections
in 1972. 1973 and 1974. The
growing
unrest manifested
itself in strikes and in violent activity
organIsed
bythe marxist-leninist
communist
party, popularly
known
as the Naxalites.
and by students.
In response
to this situation,
the
much respected
veteran leader Jaya Prakash
Narayan.
regarded
many as the spiritual
heir to Mahatma
bv
Ghandi.
had conic out of
retirement
to leada successful
nation-wide
campaign
against corrup-
tion and urging anon-violent
struggle
for greater social reform.
Againstthis background.
twodecisiveevents occurred
inJune, 1975.
In the stateelections inGu.iarat theCongress
Party.although
obtaining
thehighest poll with46'. ofthe votes, lostcot trololthe state since all
theopposition
parties succeeded
in unitme' L!to form agovernment.
This
portended
for the first time a real chalienve
to the control of the
central government
by the Congres,
Party in the parliamentary
elec-
tions to be held in 197. Onthe day alter polling closed, the Allahabad
State Hilgh Court gave udgment
in the action%brought
against
Mr, Ghandi b.%her opponent
in the 1971 elections.,
allegingelectoral
malpractice
1,welse of the charges
were r,:jected.
but two were
found proved
If uph.1., .n appeal this judgment
would have invali-
dated Mrs Ghandi's
election
to Parliament
and her office as Prime
Minister.
Against both ofthese severe bluss, to her prestige.
Mrs Ghandi
reacted with complete
propriety.
Sheaccpted
the Gujarat defeat, and
has continued
to do so. Even though the Congress
Party received
far
more votes than any other party, no attempt has been made to
replace thestate's coalition
government
bydirectrule from thecentre.
She appealed
against the judgment
in the election
case. On June 24
the Supreme
Court vacationjudge refused to giveart absolute
stay to
that judgment,
but held that Mrs Ghandi had the legaland constitu-
tional right to remain as Prime Minister
and to attend Parliament,
though not to vote, pending the final disposal
ofher appeal.
- 180 -
In this situationthe United Front. which had been formed ofall
the opposition parties represented inparliament with the exception
ofthe Moscow-In. Communist Pariy ofIndia. held apublic meeting
it, New Delhi on June 25. The hope and expectation ofdislodging
Mrs Ghandi from powerovercame theirpatience. A civil disobedience
campaign to begin on Sunday, June 29, was announced. Demands
were made that the Parliament. which was in recess, be recalled at
once, that Mrs Ghandi not appearin Parliament and that she should
resign immediately as Prime Minister. Failing this. there would he a
nation-wide campaign callingupon the armed forcesand policenot to
obey the government, the civilservice to bring the administration toa
halt, and the people not to pay their taxes. It is difficult to imagine
that any government would have stood by in face of such threats.
Mrs. Ghandi's reaction wasswift anddraconian. "
The immediate consequenceswerethe increaseduse ofpreventive
detentionagainstpoliticalopponents and economicoffenders and sus-
pensionof the right to apply to theCourts for enforcementof funda-
mentalrights. Twenty-seven
organisations
were banned immediately. The
eliminationofaccess to the Courtshad the forseeableeffects :ill-
treatmentof prisoners, increased corruptionand nepotism,and insensitive
implementation
ofGovernment programmes (notablyslumclearance and
populationcontrol).
Arigid and unprecedented
press censorshipwas imposed, apply-
ing also to the foreign press. The censorship guidelines included a
ban onreports of speeches in Parliamentother thanGovernmentstatements;
reports of Court casesother than the names of judges and counseland
the operative part of the Court decision; names and places of detention
ofr'2?tainees; any reference to agitationor violentincidents; quotations
"tornout of context and intended tomisleador conveydistortedor
wrong impressions"; or anything likely to bringthe Government into
hatred or contempt.
Fundamental rightsunder the Constitution,
guaranteeingequality
before the law (Article14), protectionof life and propertyof the
citizen (Article21), civil liberties (Article19), protectionagainst
arrest and detentionwithout being informedof the groundsof arrest
(Article22), and the duty to produce arrestedpersons sefore amagi-
stratewithin 24 hours (Article22), weresuspended.
A Fesidential
ordinance amended the Maintenance of Internal
SecurityAct, by removing the detainee'sright to be informed of the
groundsof arrest. It was made sufficient for the authorities to
declare thatthe arrestwas made to safeguard the security of India.
Asecondamendment to the Act abolishedthe right to appeal
in caseof alleged illegaldetention, and for the attachmentof the
propertyofwanted personswho failed to surrender. Alsoin the first
- 181 -
twelvemonthsofdetentionof adetainee theAdvisoryBoardhad no right
to reverse the detention order. By another amendment to the same Act,
the grounds of arrest were forbidden to be disclosed even to the Courts.
It was deemed *o be against the public interest no disclose the grolnds
of arrest. Further, expiry of a detention order was not to bar the
making of another against the same person.
The extensive mndments to the C-nistitution made during the
Emergency were su:nmri;ed and commented upon in the ICJ Review no. 17
(December 1976) as follows:
"Many of the provisions of the /Forty-second Constitutional
Amendment Act, 1976,/ to amend the Constitution of
of Many of the pro%isions of ile new Act 1o amend the Constitution of
India has e farreaching implications for the rule of law and for the
checks and safeguards in the Indian Constitution. The amendments
ensibl%alter the balance between the powers. restricting the powers of
i. iudiciir%and increasing those of the executise. as well as increasing
in possers of the Central Government in relation to the State
go ernnents.
1111%is done at a time ,,.hen the government holds in detention
iA tnoul trial some tsso dozen opposition members oif parliament under
etiergenc las and at a time when it has not thought fit to renew its
mandate from the electorate at the end of its normal 5.ycar term. Ifand
%k lien free elections take place. the government could losethe lwo-thirds
mnalorilt in Parliament (ol in the aftermath of the successful cam.
paign against Pakistani which enables it ito put through constitutional
anenomenis of this kind. I he government has now postponed elections
hor t second %earunder the Proclamation of Emergenc%. and can con
tinue tioIn/ so %yearhs s*ear is long as ii decides to continue the state of
einereenc% There hase been inan. prolests in India against making
such tar reaching amendments at a time when the Parliament s and
Gws ernment .N powsers ha.e been extended under the emergenc'
in fin explanator%rnemorandum to the ,\et the government stated
oles..013tat tnOittisis that its purpose %4as"o spell out expressly the
hicii ideals of socialisn. secularism and the iniegrt.,of the nation. to
nak. the directi e principles more comprehensise and gise them
precedene oser thtose fundamental rights which hase been allowed to
-c relied upon to frustrate socio economic relorms for implementing the
direcie principles. It is also proposed tospecify the fundamental duties
0 the cittlens and make special provisions for dealing with anti
national actiies,. whether b% indivduals or associations*
I hr Act contains no less than 59 sections. and the following are
sonic of its, principal prosisions.
l-undamental rights
Section.n virtually renders the guarantees of fundamental rights in
the Constitution nugator.. An earlier amendment of the Constitution.
in Article 31 C. had prosided that no lass giving effect to the Directive
Principles ofState Policy relating to the ownership control anddistribu.
tio oh niaterial resources for thecommon good. orpreventing the con-
common
detriment, could be declared void by the courts on the grounds that it
%,iolatedthe fundamental rights provisionsofthe Constitution. Nowit is
cenitration of wealth and means of production to the
- 182 -
Proposed
.1 extend tisexclusion ofthe Iundamental rights prosisivons
to an), Act giving efrect to unr of tile Directive Principles. Since
alinost ll1laws passed hy, the C''itral or State legislatures can tIe said
to gie ceh:,et to onle or other of" the [Directive Principles ofStt:i, Polic)
in Article N
i
f dih ('onstitutionl,
the effect of"the aintnLlelt %%ill
be Io pla,:ic aliost all law beyond any challenge balsed onl the fun
d.imntil rights pro,,iss, In ,lew ifl the p-osiislons oifArticle 3IC itis
diflicllI. t %%flitkind ". Intended legislation the goernme.,t fcared
night he struck dos, (Ib) Ilie Courts as of'e,'nding against the fullidalfne
tll rights prosuliot01s
Section 5 iakes pros ,ioui for lass s Io prct or pro.,ihht "anti
national as,tciatutoll"
aiud "anti national actis ities"'. rhese are defined
erN si.elh to inchije, folr exa ple, anyl activit, thicfh dic:all'l.
ti.lesilti. hr.c:tn., disirpt, (tr iIntended tothreatenlitr diruplt tfile
sovereignt, of India or the security of the State or the unit, of the
naliot; tr i, inte1JCd tl Ceate Interaldistrbancl or the disruption of
p1uhblit.c tei.i.se.itr it ihr,...un or disrupt harrnnv beI%\stn duffercit
rclIjt iutLo ,u1;1l11lu JI t r% ,.: or regitrt.Ilgrotups or Lti.stcs or CoI Ii]uIIIIItiIs.
Ill relationi to a1%. sLch l;u's Ifie cotiltitutiont l guaranitee: offrlii sl
speech. a,.:nsl. ',st on. i osmnent, aind residence, property
rightl, and the eft to cftose one's prof .e,,son.trade or business, are all
abrogated
rhe Judiciary
[fhc poers ol'iieh ctlt,
netiite to detsit) the consttutional
of lasus is
ss.rckl restrndeu. File CuniistIL!!onal validit) ofcetitral laws is ili future
to he dcteritined onl, h, li,e Supreme Court and not hy thigh Courts.
A lltitlnill1n of7 Iukfus iusl sit and a twko thirds majority is required to
hold i la,, ,iid (ss
can
23 a-,-l 25) State 1,usss he struck dossiii nl
h ia hillo 1fhrd, rltt.11prlt\ out of it less tfhaIn 5 lligh Court judges (%
42) \s lar as is kuntuss. tfiis , stum of vighling in fasour if itlg,es
thi .. tile spput gos.rtlirtllr t is %itlliout precedent.
AlTicWhlhiit, iSf the i"tlslllhitiul re 1the) qLIstIiIuIIhL Il the Courts
iils , pt ifiari
nlt
:. grotUltds..aud on tfie grounds that lhe are in
cO %is tettt usith the spirit or hasie structure of tle Co nistitution ( . 55).
IYhti f intr1 jti:iits lii.c protethd against this pro.sioi . the better
\,s's Is probi al th1f1it ,, , dcClaratory itf lie existing lass..)
Fli'C:O.iraeito lone r t he allosed to see til internal rule fraiti
ed uiher
7\rtcl. 7 I uof l CofnsItitution for ilte coltsetlltit trllisac
tit of goscl,..rnlrtit husii'ss (ss. 14 and 28).
[lie quiaiti.ittr, for *i high (turt Judge (hornicrl It ,cais Ilu
ti.e as higfih Couri ocate t ir Ijdicial fllice) is niw extended it)
in\one ts,. lh
tilc
f.. Ii t iittioin of President (i.e. of tile Cabinetl. "a
distngiished inrst" i, 3h) It retuains ti be seen hos this po r %%ill be
tJet. but it ctuld allnl the calibre and independence of tfhe judiciary.
Prision is % .idein section .16 for laws selling tip administratic
tribunls,to determinue uviide ra;nge of diputes. conIplaurts or o/,'iiii,
relatitg it, tuses. foreign euchrige. imports and exports, industrial and
labour dipiltes. laind reforms b\ state aslquisiiion. parhatnntiar;
i'r
stieclections's. %upplicis(it food and other goods delarcd essenial, as
.ll .i, diispui"es ;id coiiuuulauiuts vsuth respect it) ci%i ser, ice recruitment
ant, .'-,iditios (i s.rsice. [le lurisdiction of th1Cordinary courts on
licc matters ni, he ousted (save for the re'ic,, power ofthe Supreme
('itull. I.ll.] [til tss made under this pros iitn may provide for the
pt,'.C.dur it thle i lbunls and alter tle rules of evidence.
Powcrs of th Executive
Itnde.r ect:hionI 13:1isuade explicit tfat the President shall. . d'e,x-
ci, ,' t ill hi, ptsers. he bound bi th advice ofthe Cabinet. Ilie thus
h.'OIic, .I figuirch;d.
IPrw.uin.utulim of F~iuicrgeunc, nia. in future relate to parts ofIndia(s.
4,ii jl.l .itioius of direct rule of States by the central gn, ernment
arc I he v ld for tone Necar (instead of6month without renewal by
Ilihlne1it I 5Is) a1n1midinty state la",s made under direct rule arc to re.
iii., \s,1 diUlI .. ne l a]li or iontended (s. 51).
- 183 -
Ihe (ttral (il.ertititLt
is it he able h, depl. under itsown con
1111,I% alinLed lin c ior other 'treof Ihe Union "for dealing with any
grasc sitiatillo
of aljl\ and order in any state . Cel when therehas been
nIt)Iollaiitlliont
of direct rule or of alllet ergency (s. 43).
1lie pminrs ill the Central (mernment
are also to be increased
by
the tian.,er fliu the l.ist I):' State Subjecls
to the l.ist ofCocurre:ti
Stlijee tio' Ilic adinililstration
ofjustice,constitulion
and organisation
ofl lie c"Iit (lic thi elevel ofthe Supreme
Court anid Hfigh Courts),
edi. thll, cigli1s arid ii teia-,itres,fortests and protection
ofwild animals
and birds Is. 57)
Ilier , a remtkahlIc
pr-mision
in section 59, whereby "if any dif
licuit arics in gotng efect t t the provisions
of"the Constitution
as
ittntct d I.v ti hI \ ci" rle tPfesident
(i.e. the Cabinet) may, by order
niltif: \hi li\%, c.u of the paising of the Act, "make such
Ptro 1hh01N. II, idi1ti ll ,idaltaliOlln
or Imodilication
of an) provision
t it., 1 'oi,titiiit.
is appear it himt Iii be necessary
or expedient
for
h. tll, io,,c ifi ,iti tie , difficultsy".
Thce was a transitional
pruvi
,hiil o1 Ilts kind IIhtile original Cotitution,
but it lasted only until tie
hIIIIILtig
P.1t11,1111eit T'ogie such apoier io the Executive
for a
2 cear pitoil. nlttic there is itt cotence
a Parliatmentt.
is to give the
goctlillti.Ill J11 rIsr hloditlr) pot.er i )e judge itt its owi caiseand to
arlleIl tile i'itsllltltl
b, Order. It is also an admission
of' the far-
tc,e
rct'l.hilli II,1tlr 11" I ctll'altlull.-',,
l arileildmeltS.
Ili Iegislalurc
I!;, m.iiioii of the larliaiieit and o. theState legislatures is extend
cl nIom 5 to, )\ears Islhiut prejudic,:e
tIofurther extensions
of tile
Pat litltituill !tiltcciteIgCet.
pv\icrsl Is% 17. 30 and 56). No reason is
gloci tor It, .lttige int the exlilpattr)
miineinoranduni.
I lt tt'ptilrct.i.t
lfo a oiel titl parliamtientary
(tIOrUlI is rentoved
ai l,irliitinl i
,
Icil tidelermin
itts ,tin quoirumin (s. 22).The powers,
in lc'guC .1t11 IIIIIIItIlIIst"
Of timettbeis
oft' Parliament
and State
I ,i.it, ., ,ti 00 ,lnCr to 1e defined by Parliament,
but to be are
c.h i1 11 Iroill t1111Iotil t1lichbcl lod hN sutch Ilouse". %halc, er
thatt11:1
sn.all
34)
t l Is, 21 .11l
It: ulac;ullotIl
and tle boitttdari
h
t tl
sof'tclttitltuentices
for the
pirliameent
and aie leinllmtes
are it)hi rli e it until lie Near 2100.
W\hal,-r
dolttwt."
thianugcs take place in the nteatiitne.
there will
li till
is I,-1tsire
iqual
12.
n.uIcrut,
represetlation (ss. 15. I(i. 29 itd
4
71
()lli,c ' I I i,l i tld.r lie Cettral or ;IState go crtniel %%ull
ligecr
no
dltjs
1
dmI, I incinher o1f lic legislature
tinless the olfice is
tleclarcd 1w I ;irhi.ttt.e
hi la%Iit disqtuali,
its htodier (%s. 19 arid 32).
III delimmtig
\thclh.r'a
i \cnthe r shatll he disqualihied
ott such
grltils. ,i ll o ri tlo, -I'otrruplttttt
tle lresident
(I tfit, ('abinel)
%%ill tit l irhe btitidlvI lire opittin
ilthe Flection (oilrllniitn
(ss.
20 atnd IIl
I)irecti,,c
Principles
and Fundamental
I)utdes
Ie dtcit ll c . tneIllsL:II of state polhcs in Part IV il the (onstituliiin
I %t+..h are not crtlorcthlc
iii aI Clurt bti are irok i tak,,e precedence
over liittlttliinitl
righltsi are Ittltude the pro\ilsst lt equal jlIsicc
anid Iree legal alid it) coiil-all,,t.
back\kard
classes. parlieipation
of
",orker,Iii lit r.t mal.iget2.IIi if,Itiltsrial
tirgalliatitnas.
and pIlolectitit
atl iipittllciet. I" le cili irolltntil anid safeguardinug
toresis arid wild
ll' I 7 ), 1hert I 1, aisli a lien Part IV
.
,,\ cniunieratiig
"litlanrlertal
dli ,
hI Mi0. . ,.ItieliiI ironliicallh \tlh the stalcillle
1 it
""ihllltic lic fill i C'cri cutl/ tfIndia(iaItt thide bN
that
(lie (Ctstitt
[lol and h respeelt lh idil and institutios
IIhere Is alkti a lul) 'l
deO thp lier ete10
rmper.ltt
atid
iuhlie tI hutinitisi
tie spirit ttf intquiry and
rehl'ttn Is. II
- 184 -
Conclusii)n
Nlt[, (i li'.
,
idh i)ppoMrIits
L',.6'Aher ol' int ling to rellace lie
kcInliCril IIc c illstlliliii of Ijndia h),;diclallrial st,n. Whilst Nirs
(11ns)h1i p~rzest,,, thu th,1 n,: the case, tile g1e.11mcil. %kll) itspre
Nell m'c i eiIl+\ ingiII|2(itoUin Parliament (gainln.alter tleA+iiCe
iniilitnr, op'r ti0l,;ii i,t i,{i
ssl
llhihled to the new st:ie o
ltin higildcS1). isctr\itlilits, rgl)+.l%.illil)tiers ihiicl co ildhe ti.sel ti
Perpenriuane [Ile rule Ill (lie Cimrgrcss 'arNn..
illtile fiistil.ice lh're i,nurthun I,, stiile J'rli1:irciIn 1iIl,,+l[ln
'~~~~~~~~~ I~~~~~ )'I :-ll1' I[+ 'I I [4) ( Ih ,C[+. I LI,] r,+. t+; {r
Is III, h1I.gr ;IIIA, II.CLIli-r ilh iIIaIIIlIcIlI,:Ill the l)rodLamtitin.h hill
lure is i,,,vt'it, hii i lein ho: hil
cihit %%ill hrrm t i lleiin 11lh;I,
aired. beel -ll I e\ldcil\f
th,;irrliin i ,hNN.or'ars, Ili
the life
illterI
In ,.;rI
or
1liiciC ,I ilin -),sili rc+.Nsccr.ire"tiict 1h11
.din,,iniIrit s. iil lfheediJI)Il diu Of ,pet..ch.
(i lhlM
I Iliepres+,',,. i,,C
ailld ( i,Iltr Ir. liriih _rlnr,.the %;i,is ilu, clear ir li,,s it he
pa ,.sscduiilA*klIe im lnl itiA:il iirginill r ehic..h
iscen
thri.cllIls [h
dincs\ I lehe ('tlrs,,Part ovsnnglhalit threatens the ectirit%iii
tlhe stat,. ani\the c irsoill iii0 he'ahle to stike ,ih,iisuch alaw*,AM
lie irimiis thi it \hulle.s lumilainiital riits.
It rllllilih Cll CAll ilre ('Ingr
i l%(ibj
sll harl. it Isdillicult It ,.e
l 01Lic i e cuiilriiiioirlaia ges, or %titytile) are coin
hnlec
s.hl~iItu ,1,'dllII1tOrL'ri briglil
ecoin0 rlns.
ilhiul ,OCI.i licrd'h !
TheTermination
ofEmergency
On18 January1977, thePrimeMinister announced
herdecision
to holdaGeneral Election.
Thiswas followedby the release of
opposition
leaders to participate
in the electionand suspension
of the
Press censorship.
Acoalition
of fiveopposition
parties wonanabsol-
utemajorityin the lowerhouse, the Loksabha.
When theelectionresults
woreconfirmed,
Mrs.Gandhirevoked theProclamation
ofInternalEmer-
gency, the orderbanningthe 27 organizations,
and the previously
sus-
pendedcensorship
order.
The formal Lermination
ofthe Emergency
automatically
remedied
some of the mostobjectionable
aspectsofthe legal situation.
For
example, the 1975 a 1976 amendments
to theMaintenance
ofInternal
SecurityAct, 1971, clepenc2e,
upontheexistence
ofthe Emergency
and
lapsed automatically
whenit ended,as did the Presidential
Order sus-
pendingthe right to apply to the Courts to enforcethe Constitutional
rights ofequalitybefore the law,protection
of lifeandpersonal
liberty, andprotection
againstarbitrary
arrest anddetention.
Numerous
commissions
were createdto investigate
complaints
arisingout of the Emergency.
The mostimportant
onewasthe inquiry
conducted
by Mr.Justice Shah. The ShahCommission,
as itwas called,
did rot have the benefitofMrs.Gandhi's evidence
on the issuesbefore
it nor of her cross-examination
of thewitnesses.
So theinquiry was
necessazily
one-sided,
but its conclusion
cannotbeignored.
The Third
andFinal Reports of the ShahCommission
speak ofwrongful confinements,
torture,patently
illegal detentions
based oncaprice, abusesof
authority
bypublic officials,
indiscriminate
demolition
of houses,
and unlawful implementation
offamilyplanningprogrammes.
- 185. -
VI. THEJUDICIALRESPONSETOEMERGENCYPOWERS
Historically,theIndianCourtshave hadastrongtraditionof
zealousscrutinyofthe exerciseof Emergencypowers bythe executive.
Anewspaperreportpublishedin theyear1943 hadthisto say:
"A compilationofthe judgmentsof theFederal Court,
theHighCourtsand the subordinateCourts onEmergency
laws deliveredduring1942-43 shows thatthe Indian
judiciary, includingits Englishmembers,acquitted itself
mostcreditablyduringaperiodofgreat stress." (3)
After independence,when the 1962Emergency *asproclaimed,
and 3n ordersuspendingthe judicialenforcement of fundamental rights
wasissued, theSupremeCourtofthe free India had for the first time
toconsiderthePresidentialorder.
It ruled (4)thatinviewof the order,the citizen"losthis
locusstandi tomovethisCourtduringtheperiodoftheEmergency",
althoughthe Court'sjurisdiction and powerunderArticle 32 togrant
reliefwereuntouched.
Later,aSpecialBench ofsevenjudgesheard togetherabatch
ofappealsraising alarge numberofissues. The judgmentwasdelivered
on2September1963. Theorder wasupheldbyamajorityof6to 1(5).
ComparingArticles 358and 359, themajoritypointedoutthat
Article358 "removesthe fetters createdon thelegislative and
executivepowersbyArticle 19." (Article19 confers the fundamental
rights). "Article359, in contrast,suspendednorightbutthe citizen
isdeprivedof his righttomove anycourt for the enforcementofthe
rights." (6)
Themajoritymadethe followingobservationswhichareof
great importance:
"If inchallengingthevalidityofhisdetentionorder,the
Ldetainee/ ispleadingany rightoutside the rightsspecified
inthe Order,hisright tomoveanycourt inthatbehalfis
notsuspended,becauseit is outsideArticle 359 (1)and
consequentlyoutsidethePresidential Orderitself. Let us
takeacasewherea/detainee/has beendetainedinviolation
of themandatoryprovisionsoZ theAct. In suchacase,it
maybe open to the/detainee/ tocontendthatthis detention
is illegal for thereasonthatthe mandatoryprovisionsofthe
(3)The HindustanTimes,NewDelhi, 1943.
(4)MohanChowdhuryv.ChiefCommissionerofTribunal,A.I.R.
1964, S.C.173, atp. 177.
(5)MakhanSinghv. StateofPunjab,A.I.R.1964, S.C.381.
(6)Ibid.atp. 395.
- 186 -
Act havre beencontravened. Suchapleais outside
Article 359 (1)andthe rightof the/detainee/ to
move forhis releaseon such aground cannotbe
affectedby thePresidentialOrder." (7)
Similarly, aplea ofmalafides orof excessivedelegation
was notbarredby the oider. In sum, whatthe ordersuspendedwas
the right strictly to move the Courtfor theenforcementof fundamental
rightsembodied inthe Articles14, 21 and22. It did notandcould
not suspend the Rule of Lawitself.
As the Emergencyof1962 lingeredon the Courtbecameincreas-
ingly concernedas abuses ofEmergencypowers cametoits notice.
When adetaineesuccessfully urgedbefore the Supreme Court
that hisdetentionwasorderedmalafide, the Courtupheldhisplea
thatthe detainingpowerhad been "abused". Orderingthedetainee's
release, theCourtobserved:
"Whenwe cameacross ordersof this kindby which
citizens are deprivedof thefundamentalrightof
libertywithout atrialon thegroundthat the emergency
proclaimed by the Presidentin 1962still continues and
thepowers conferredonthe appropriateauthorityby the
Defenceof IndiaRules justify the deprivation ofsuch
liberty,we feel rudelydisturbedby the thought that the
continuous exerciseofthe verywidepowers conferredby
the Rules onthe several authoritiesis likely tomakethe
c,.nscience of theseauthoritiesinsensitive, if not blunt,
to theparamountrequirement of theConstitutionthateven
duringanemergency the freedomof theIndiancitizen
cannotbe takenawaywithouttheexistence ofjustifying
necessityspecifiedby the Rules themselves. The tendency
to treatthesemattersin asomewhatcasualand cavalier
mannerwhichconceivably results fromthe continuoususe
of such unfetteredpowersmayultimatelypose aserious
threattobasicvalues onwhichthedomesticwayoflife
inthis countryis founded." (8)
The CourtsDuringthe 1975Emergency
Whenwritsofhabeascorpus (9)weresoughtfromthe High
Courts, thedetaining authorities raisedpreliminary objections
(7)Ibid. p.399.
(8)G.Sadanandanv.TheStateofKerala (1966) 2.S.C.
J.725.
(9)Article32 - inthe fundamentalrights chapterofthe Constitution
- guarantees therightof everypersonto movetheSupremeCourt
of Indiafor the issueofwrits includingthe writof habeascorpus
andprovidesthatthe SupremeCourtwouldhavepower to issue
suchwritsandother appropriateordersordirections. Under
Article 226 oftheConstitution,the HighCourtineachStateis
empnowered to issuehighprerogative writsincludingthewritof
habeascorpus.
- 187 -
that the petitionershadnolocus standi because theywereseekingto
enforcetheir fundamental rightunder Article 21, namely thatthey should
not bedeprivedof theirpersonalliberty exceptbyprocedureestablished
bylaw. TheHigh CourtsoftendifferentStates (10) rejectedthis con-
tention and held, following earlier precedents, that though the petition-
ers could not move the court to enforce their fundamental riht under
Article 21, theywereentitled to showthat the order ofdetentionwas
not under or in compliance with law or was mala fide. But thispre-
ponderantviewof the High Courts was overruledby the Supreme Court.
In what is now known as the Habeas Corpus Case (11) , the Court held (by
amajorityof 4to i)thatArticle 21 was the sole repositoryof the
right conferred- +hat the Constitutionof Indiadid not recognise any
naturalright other than thatexpresslyconferred - and that accordingly
an orderof preventivedetentionissued at atime whenArticle 21 was
under suspension could not be challenged either in the HighCourtor in
the Supreme Court, nor a writ of habeas corpus issued, either on the ground
that the order was not ir compliance with the law authorising it or was
illegal or was vitiated b2 mala fides, factual or legal, or based on
extraneousconsiderations. In the nextyear (12), the Supreme Court
held that duringthe period of suspensionofArticles 21 and 22, detainees
- mostof themwerepoliticaldetainees- could not complain -fprison
conditionsor prisonrules regulatingconditionsofdetentionevan if they
were unreasonableor moreharsh than thoseprescribedforpersons con-
victed of crimes. Thebasis of these two unfortunate judgmentswas (in
thewords of thenChiefJusticeRay) that :
"Libertyitself is the giftof 'ielaw andmayby the
law be forfeitedor abridged."
Thus,the voicesof theHighCourtswhichhad takenadifferentview
weresilenced. Aswas saidof theSupremeCourtof theUnitedStates
after theDredScottCase, theSupremeCourtof India (afterthe Habeas
CorpusCase) "suffered severelyfromself-inflictedwounds." Aformer
ChiefJusticeof India (Mr.Hidayatullah, nowVice-PresidentofIndia)
has more thanonce publiclyexpressed the view thatthe suspension of
Article 21 should not have led tothe "handsoff"posturebythe Supreme
Court. In his view (whichmany share), Article32 guaranteedthe right
of everyperson to approachthe SupremeCourtand empowered theSupreme
Court to issueawritof habeas corpus. So long as thatarticle wasnot
suspended,thepower to scrutinise the groundsand validityofadeten-
tionorderremainedwith the Courts.
The CourtsAfter the Emergency
Since the liftingof theEmergency inMarch 1977, theSupreme
Courtof India has beenatpains to redeemitself. Inthe firstyear
(10) HighCourtsofAllahabad,AndhraPradesh,Bombay, Delhi,
Karnataka,Madras, MadhyaPradesh,Punjab,Haryanaand Rajasthan.
(11) A.D.M.Jabalpurv.S.Shukla,A.I.R.1976,S.C. 1207.
(12) Union ofIndia v.B.K.Gowda,A.I.R. 1977,S.C. 1027.
- 188 -
oftheSupreme
Court (in1950)inGopalan's
Case (13), arestricted
meaning
wasgivento the words "except
by procedure
established
by
lawinArticle
21". Whatever
theprocedure
the lawenacted
(evenif in
the opinion
oftheCourt itwereunfairorunreasonable)
wouldbe
tainedas
sus-
asufficient
constitutional
justification
fordeprivatiun
of
life orliberty.
TheCourt thus shut thedoor to 'dueprocess'
-
largell
for historical
reasons.
The draft Constitution
did contain
a
due process
clausebut it was deleted
by thedrafting
committee,
mainly
the adviceof Just.'ce
Frankfurter
to the
on
IndianConstitutional
Adviser,
Sir B.N.Rau. It wasalso held in Gopalan's
Case thatArticle
22 was aself-contained
code and therefore
alawofpreventive
detention
did nothave to satisfy the requirements
ofArticle 14 (prohibition
against
arbitrary
ordiscriminatory
laws) or article
19 (rightto free-
domof speech,expression,
of assembly
andof movement
- subject
to
reasonable
restrictions
imposed
bylaw)orArticle
21 (rightto life
andpersonal
liberty).
However,
afull bench ofelevenjudges in the
Bank'Nationalisation
Case (14) disapproved
the majority
viewin Gopalan.
Subsequently,
smaller
benches
(15), in dealingwith achallenge
to the
Maintenance
ofInternal
Security
Act,1971, accepted
theposition
that
alaw ofpreventive
detention
had to be testedin regard toits reason-
ableness
with reference
toArticle
19. Afew yearslater, in Maneka
Gandhi (16), aConstitution
Benchof the Courtheldthat the words
"except
byprocedure
established
bylaw"inArticle
21 dia notopenthe
doorto anyprocedure,
however
arbitrary
orfanciful,
fordepriving
persons
oftheirlife or liberty.
The lawhad to satisfy
therequire-
mentD reasonableness.
Due process,
so studiously
keptoutfor more
than 25 years,was introduced
aspartofconstitutional
lawinmatters
relating
to lifeand liberty.
Sincethen the constitutional
safeguards
forpersons
detained
underpreventive
detention
laws are beingconstrued
very strictly
against
the detaining
authorities
(17). Thescrutiny
of
meticulous
wheresomeState Gcvernments
haveattempted
topreventively
detain
detention
ordersand of the grounds
ofdetention
are
- and
politizl
opponents
onthe groundthat theirapprehended
activities
would constitute
adanger to internal
security,
such attempts
have
failed (thanksto the Courts)
eitheron the groundof malafidesorthe
vagueness
ofgroundsofdetention
orfailure
toconformto strictpro-
cedural
safeguards.
(13) A.I.R.1950,S.C. 27.
(14) R.C.Cooperv.UnionofIndia,A.I.R.1970,S.C.564.
(15) H.Sahaiv.StateofBengal,A.I.R. 1974, S.C. 2154 (5judges)
andKudi RamDas v.StateofWestBengal,
A.I.R.1975, S.C.
550 (4judges).
(16) A.I.R.1978,S.C. 597.
(17) See,for instance,
PritamNathHoonv.UnionofIndia,A.I.R.
1981, S.C.92; SalehMohammed
v.UnionofIndia,A.I.R.1981,
S.C.111, Mrs.HamidaQureishi
v.M.S.Kasbekar,
A.I.R.1981,
S.C. 489,GurdipSinghv.UnionofIndia,A.I.R.1981,S.C.362
ShaliniSoni v.UnionofIndia,A.I.R. 1981,S.C. 431, Tushar
Thakker
v.Unionof India,A.I.R. 1981,S.C.436,Mangalbhai
Motiram
Patel v.State ofMaharashtra,
A.I.R.1981,S.C.510.
- 189-
VII. PLUGGINGTHELOOPHOLES THEAMENDMENTSTOTHE CONSTITUTION
TheConstitutionForty-fourthAmendmentAct, 1978, has introd-
ducedstricter safeguards intheEmergencyprovisions. An emergencymay
nowbe declaredonlywhen the securityof Indiaoranypart of its terri-
toryis threatened"whetherbywaror externalaggressionorarmed
rebellion" - mere "internaldisturbance"will no longer sustainaPro-
clamationof Emergency. Thereis to beastricterscrutinyof aPro-
clamationof Emergencyby thelegislativewing- aProclamationof
Emergencywouldcease to operateat the expirationof onemonthunless
it has beenspecifically approvedby resolutionsofbothHousesof Parlia-
ment (thatis the HouseofthePeopleand theCouncil of States). Article
359 empoweringtheexecutive to suspendthe enforcement of fundamental
rights conferredbyPart III during theperiodofthe Proclamationof
Emergencyhas alsobeen amended. Article 20 (protectionagainstexpost
facto laws and againstdouble jeopardy) andArticle 21 cannotbe suspended
atany timeevenduringanEmergency. Theright to lifeand libertyeven
if "thegift of the law"canno longer beforfeitedorabridged. The
powerofthe courtsto issuewritsofhabeas corpus canno longerbe taken
awayevenby alawunanimouslypassedby bothHousesofParliament.
The ConstitutionForty-FourthAmendment.Act,1978,will, ifand when
it comes intoforce, further liberalisetheprovisions ofArticle22 (14)
byprovidingthattheAdvisoryBoard ineachState (whichlooks into the
groundsof detention)mustbe constitutedin accordancewiththe recommenda-
tionsofthe ChiefJustice(Zthe HighCourtineachState - andmustcon-
sistofaserving judgeof the HighCourt asChairman,its two other
members being servingor retiredjudges ofany HighCourt. An Advisory
Boardwillnotbe able to Le constituted ofpersonswhoaremerely
"qualifiedtobe appointedas judges ofaHighCourt ...":theymustin
factbe servingor retiredjudges ofaHighCourt. Sub-:lause (a)ofclause
(7)ofArticle 22 willalsobe deletedby theConstitutionForty-Fourth
AmendmentAct,1978 - withthe effectthatParliamentwillnot any longer
beable to prescribeby lawthe circumstances underwhichand theclass or
classesofcases inwhich apersonmaybe detainedforaperiodlongerthan
threemonthsunder apreventivedetentionlawwithoutobtaining the opinion
oftheAdvisoryBoard. Although theamendmentsofArticle22 by the
ConstitutionForty-FourthAmendmentAct,1978 arevalidconstituent law-
enactedin the exerciseofpowersvestedinParliament bythe requisite
majorityto amend theConstitution- they havenot yetbeenbroughtinto
force.
(18)The new clause (4)of Article22 readsas follows:
'4) Nolawprovidingforpreventive detentionshallauthorise
thedetentionofapersonforalongerperiod thantwomonths
unless anAdvisoryBoardconstituted inaccordancewith the
racommendations oftheChiefJusticeof theappropriate High
Courthasreportedbefore the expirationofthe saidperiodof
twomonths that there is in its opinionsufficient causefor
suchdetention;
Provided thatanAdvisoryBoard shallconsistofaChairman
and notless than twoothermembers,andtheChairmanshallbe
aservingjudgeoftheappropriateHighCourt and the other
membersshallbeservingorretiredjudgesofanyHighCourt."
- 190 -
The amendmentsare not to come intoeffectuntilthe Central
Government notifiesin the Official Gazette the dateof theircommence-
ment. After alapseof t,- "ears a case was brought before thebupreme
Court, requestingthe Courtby an order for mandamus to direct the
Central Government to issue anotificationbringingthe amendmentsinto
force. T.hilst all the judges were agreed that there did not appear to
be any adminstrativ reason why the Government could not bring the
amendments into force, the maijority of the Court held that it is not
for the Cc:irt to order the Government to do that which, according to the
mindate of I,,rliiment, lies in its sole discretion to do when it considers
it opportune. The minority opinion was that the discretion of the Central
Government lidrnot entitle it to suspend indefinitely the coming into
effect of the imondmonts. The minority argument has received much sup-
port from the legal profession in India.
VIII. CONCLU2IONS
The following conclusionsmay bedrawn from tile Indianexperience:
1. Eveninacountry withsuch astrong commitmentto theRule ofLaw,
detailed constitut,-nal provisionsdesigned to avoidabusesof
power, a stiong parLiamei,Larv trsdition and a highly developed
legalsystem, ergencypowersare liableto be extendedbothin
time and in scopebeyondwhat is 'strictlyrequiredby theexigencies
of the situation'.
2. Therisksof suc abuse are inevitablygreaterwhentheGovernment
in power commandq,andcontinuesto command, asufficientmajority
in the legislature toenableit to prolongthe emergencyatwill
or to amend the Constitutionso as to enlargethe scopeof its
emergencypowers.
3. The first twoemergenciesproclaimed sinceindependence in India
wereplainly justifiable, butequallyclearlytheywerecontinued
inforce after the circumstanceswhichgave rise to themno longer
existed.
4. Thereis morecontroversy as to the necessity for the third
proclamationofan emergency,but there are clearlystrongargu-
ments infavourof its validity. The measures taken,however,seen
to havebeenclearlyout of proportionto the threatorperceived
threatto internalsecurity, and the removalof all judicial
controlpermittedwidespreadandgross violationsof fundamental
humanrightsby the forceswhose dutyis to enforcethe law.
5. Theconstitutional amendmentsmadeunderthis state ofemergency
eventuallybecame so extreme that they calledinto questionthe
survivalof the democratictraditionand the Rule ofLaw. At that
point,Mrs. Gandhiwiselyturned to the electorateto enablethe
peopletodecide the issue. Itmay beaddedthat shehas, since
her remarkablereturntopower, justifiedthe claimshealways
madetoacommitment todemocracy and theRule ofLaw.
- 191 -
6. Theexperience of the thirdemergencyhas shownthatwhere
exceptionalpowers are qranted, there is agreaterprospectof
avoiding abusesof power if the basicessentialsof judicial
controland 'dueprocess' of laware maintained,and if unreason-
able limitations are notplacedon freedomof thepress, freedom
of expression and freedom ofassociation. Aboveall, it is
essential that a remedy of the nature of habeas corpus remain in
force to enable any person in custody, including a person in
administrative detention, to challenge the legality of his
detention orof his conditionsof detention.
7. Generally worded safeguard_- of basic rights are liable to be
easily brushed aside or invalidated under an emergency unless
they are reinforced by detailed procedures andeffective remedies
to ensure their enforcement. Considerableefforts weremadeby the
coalitiongovernment after the third emergency to establish
effective remediesagainst the possibilityof similar abuse in
the future.
-0-0-0-0-
- 193 -
STATESOFEMERGENCYINMALAYSIA
CONTENTS
Page
I. BRIEF HISTORICALBACKGROUND...............................
195
TheFormationof theFederationofMalaya............... 195
II. SHORTCONSTITUTIONALHISTORYOFMALAYSIA................ 196
FundamentalLiberties- CivilRightsinMalaysia ....... 196
III. THEEMERGENCIES SOFARPROCLAIMED........................
199
IV. THECONSTITUTIONALPROVISIONS RELATINGTO
SPECIALAND EMERGENCYPOWERS..............................
201
ThePowersUnderArticle 150..............................
201
Developmentof the ProvisionsbyConstitutional
Amendment..............................................
201
Courts' Interpretationof Article 150....................202
ThePowers UnderArticle 149 (LegislationAgainst
Developmentof the Provisions byConstitutional
Subversion) ............................................
202
Amendment..............................................
203
PowersunderArticle 151 (PreventiveDetention)........ 203
Developmentof the Provisionsthrough Constitutional
Amendments .............................................
203
Courts' InterpretationofArticle 151....................203
V. THEEXERCISEOFEMERGENCYPOWERS :INTERNALSECURITY
ACT,SPECIALREGULATIONSANDTHESOCIETIESREGISTRATION
ACT .................................................... 204
The InternalSecurityAct,1960...........................
204
Emergency (SecurityCases)Regulations, 1975 ........... 205
TheSocietiesAct ......................................
207
VI. ROLEOFTHEJUDICIARYANDTHEBAR.........................
207
VII. CONCLUSIONS ............................................
208
APPENDIX .......................................................
209
- 195 -
I. BRIEFIISTORICALBACKGROUND
TheFormationofthe Federationof Malaya
In AD 1400 a Mlalay prince from Tumasik established himself at
Malacca, and established '-Ialacca Sultanate, which lasted for about a
hundred years. Alt1ough not all of the hoy,;] Houses claimed descent
from the Malacca Su' tinote, unified loyalty was owed to the Mal1acca
throne through a form of feudalism. !-alacc,i becamle an entrepot of
importance, attracting traders frlm Per!;1a, india and (Alina. (1)
The next e'ocih of MALia.,i h story w,,!; the per1o.d of colonial
rle. The led the W, T; t! s 15l and
Poltuquse .')nlriq r', t friderc n agjressors
in 1511. The Dutch followed m . c, foll to them in 16.1 . During
this period there were ircas of Furcoc,,, bnI;:,:these not, hut did
spread over the ,i of the 1Miaty penin!;ul,.
Colonial dols;narnc, reached in; with British rule. The
British initiilly came foir tie ice r-d, tholujh the F.iot India
Trading Company. Then they sire; nc ports of Penang in 1787, no
Malacca in 1795 anod Ciapore il 191 9. Over tlo rinXt century to 1914,
throe h various; treaties and ;support ) lcc., 1 1 in internal given leders
conflicts, the territory -nown We;t M ia by under
nov s l,ty car- stages
British Administratio..
The period of British Adinist..tion was one of massive migration.
Tin was discovered in the peninsula in the mid-nineteenth century, and
the rubber industry flourished by the end of the nineteenth century. To
sustain this tremendous growth, Chinese and Indians were brought in to
provide labour for the nines ind plantations. It has been estimated
thatwhereas in 1800 the Malays made up 90* of the population, by 1910,
whenthe migrationreceded, Malayscomprisedonly 50% of the population
(2).
From1914, the Britishruled Malayaas acolony, until 1941, when,
intheSecond World War, it fell to the Japanese. Themost lasting
effectof theJapaneseoccupationwas that it acted as acatalyst for
the fervour ofMalaysiannationalism. Afterthe war, the BritiFh returned
in 1945. During the next elevenyears various local political parties
wereestablished. First,the United MalayNational Organization (UMNO)
was formed in 1946 by afusion of MalayOrganizations. In 1949, after
a series of Chinesvpol:.tical parties with communist undertones had been
suppressed, the Malayan ChineseAssociation (MCA)was formed. In 1955,
theMalayan Indian Congress (MIC)was establishedand togetherwith the
UMNO andMCA formed the Alliance. Thiswas acoalition representingall
the racesofMalaya. TheBritishwere thenready to concede thatself-
rule was imminent and in 1957, the FederationofMalaya,anewnation,
wasestablished,with theBritishcedingPenangandMalaccato the new
fderation.
(1)Brown,C.C.SejarahMelayu - TheMalayAnnals. Journalof the
MalayanBranchoftheRoyal AsiaticSociety, 1952.
(2)FirstCensusofMalaya.Census Report,1957.
- 196 -
When the Federation -f Malaya was formed, Sar.wak, Sabah and
Sinqapore were excluded from the Fe(.:ration and rem,.ined separate
Crown Colonies.
In the eairly 1960's, when in w;,: preparinq to withdraw
and grant independence to itz; colonies in "South-EastAsia, the proposal
to unite the
0
rowr oniesI,o' Co and inr :1 the Siho, iniangore aith
Federation o'Xila< -iw,is i,iin wuootI!. I1 :-eptomber 1' 3, thi.; was%
accepted ili the e~er~it iFe ion -If .. . ,thorn.
The in( 1.s lot of! ws,hi,,woer, ,;h'I,-t-lived1. the
!rlapire
on
one hand, inijapore r,l t, be 111 iettlinlq inf] ,Ience )oInthe internal tlr
politics of Mla''ii, and, or. theothr hani, the peopleof Singapore
objected 'othe dominance )fthe '1,1lay; in the political syster!. In
August 1965, SiigJapore withirew rorm the Federaiti - and becime ininde-
pendent s;tote.
II. SIIORT rxl5, :ST TUT ICCAL MIsTORY OY MAIAYSIA
The predec,-sor of the Ma laysian Constitution is the Ma layan
Constitution, which cane to force on 31 August 1957, known as
"'erdek,i Dli" or In lependtence 1)ay, wheri m1al,iya becime an independent
state. The on;tittitton proviled fbr iconstitution I1monarchy, headed
by the 'Yincl.i-pertuan Aqonq, the Supreme Puler of the Iation. His
Hichness is elect-d to serve ifie-year term by his brother Sultans,
the rulers of the States, at the Conference of Rulers held every five
years.
Although the fundamental tenets af that constitution have
remained, considerable revisions occurred in 1962 and in 1975, when the
composition of the Federation changed.
Fundamental Liberties - Civil Rights in Malaysia
The Malaysian "Bill of Rights" is containedin Part I of the
Constitution,consistingof Articles5-13. In brief, thesecontain
nine fundamental rights:
1.Article 5- Theright to life, personal liberty,habeas
corpus, the rightto notificationof groundsofarrest,
the right to legalrepresentation, the right tobe placed
spteedily in the hands of the judiciary whenarrested;
2.Article6- The rightto freedom fromslavery and forced
labour;
3.Article 7- Theright to protectionagainstretroactive
laws and doublejeopardy;
4.Article 8- The right toequality beforethe law;
5.Article 9- Theright to freedomofmovement,the right
to freedomfrom banishment;
6.Article 10 - Theright to freedomof speechand expression,
the right toassemblepeaceably,theright tofree
association;
7.Article 11 - Theright tofreedomofreligion;
- 197 -
8.Article 12 - Theright toeducation;
9.Article 13 - The right topersonalproperty, the right to
compensation
forgovernmental expropriation.
Anexaminationof the textof the Constitutionrevealsthat
there are twocategoriesof rights: those whichareabsolute, and
thosewhichare limited by the termsof the Constitution
itself.
However, evenrightswhich appeai? to be absolute have been
diminished by judicial interpretation
andby executivedeclarations
of
emergencywhich jllowthe government toact contraryto theConstituti,,.
Thus, the appearance of "absoluterights" is misleading; inessence,
all of the fundamentalconstitutional
liberties are limited by legis-
lative and judicial fiat. To illustrate furthpr, alist (3)of laws
is givenunderwhich peoplecanbe depri-.ed of ,he rightstolife and
liberty:
(a)Life
Apersonmaybe deprivedof hisright to life by the
followingstatutes -
1.The Penal Code (F.M.S.Cap.45)
2.The Internal SecurityAct, 1960
3.ArmsAct, 1960
4.Firearms (IncreasedPenalties)Act,1971
5.DarnerousDrugs Ordinance, 1952.
(b)Liberty
Apersonmaybe deprivedof his right tolibertyby the
followingstatutes -
1.PenalCode (F.M.S.Cap.45)
2.Crimina_ProcedureCode (F.M.S.Cap. 6)
3.Internal SecurityAct, 1960 (Act82)
4.LegalProfession Act,1976 (Act166)
5.Registration
ofCriminaland Undesirable Persons
Act, 1969 (Act77)
6.Summons andWarrants (SpecialProvisions)Act, 1971
Act 25)
7.Firearms (IncreasedPenalties)Act, 1971 (Act37)
8.Prevention of CorruptionAct, 1961 (Act57)
9. ArmedForcesAct, 1972 (Act77)
.0. National RegistrationAct, 1959 (Act78)
11. Official SecretsAct, 1972 (Act8P)
(3)This list is quotedfromapaperpresented to the 4thMalaysian
LawConference by NikAbdul Rashidon "ErosionofFundamental
Righats by Legislation".
- 198 -
12. WomenandGirlsProtectionAct, 1973 (Act106)
13. ArmsAct,No. 21 of 1960.
14. DangerousDrugs OrdinanceNo. 30 of 1952 (ReprintNo.
4of 1973)
15. EmergencyOrdinance, Numbers 1,5,7,22, 30, 36,
51, 61 and 76
16. Kidnapping Act, No. 41 of 1961
17. MinorOffencesOrdinance,No. 3of1955
18. Preservationof PublicSecurity Ordinance,No. 46
of 1968
19. Preservationof PublicOrder Ordinance (Emergency
Ordinance) No.5of 1969
20. Preventionof CrimeOrdinance, No. 13 of 1959
(ReprintNo. 10 of 1973)
21. Public Order (Preservation)Ordinance, No. 46of
1958 (ReprintNo. 13 of 1973)
22. Road TrafficOrdinance, No. 49of 1958 (ReprintNo.5
of 1970)
23. Vagrants Act,No. 19 of 1965
24. PoliceAct,No. 41 of 1967.
Manyof theseare ordinances whichwerepromulgatedunderan
emergencyand werepassedunder the emergencyprovisionsof theCon-
stitution. Before goinginto thedetails of the Constitutionalpro-
visionsdealingwithan emergency, the circumstances surroundingeach
of the fouremergencies proclaimed so far maybe examinedbriefly.
- 199 -
III. THE EMERGENCIES SO FAR PROCLAIMED
Duringthe period betweenindependence
in 1957 and the time
of writing there have been four Proclamations
of Emergency. None of thesi
have been revoked.
(a) 1964 Prochlimation:
Applicable throughout the Federation
(4)
(b) 1966 Proclamation:
Applicable only to Sarawak (5)
(c) 1969 Proclimation:
Applicible throughout the Federation
(6)
(d) 1977 Procla!:nmtion:
Appli&I' only Kelantan (7)
d- to
The first Pro amaion of Einegency was issued in 1964, during
the period le,vL i0q to the, hirth of MaI oysii - the joining of Sarawak and
Sabah and the aera tior of FSingaiore. This politicil transition wos not
accompli hed! without hSi 1stlity from .a'oyei.,'s immediate neighbours,
Indonesii u.id the Philippine!;.
The Philippines felt that it hod o his-
toric clim, i,! attumlLted to iesert legil sovereignty over Sabah (8).
Indonesii , 1 e, reqis t rci stro-ng protest. Indonesi , oased its opposition
to the f.iIt
: ia on the grounds thot it was a British plot to
perpetu te Pritish colonial desi(nn in South-East Ania. Although there
was a oeries, of meetings between the three ntions, Indonesia sustained
its dis-Approval d honti ity. Thin led to the period of "confrontation"
- a cold war between Malaysia trid Indonesia. At the same time, the State
of FIelantan refused its approval to the formation of Malaysia. Kelantan
based its objection on the grounds thot the Sultan of Kelantan should have
been consulted before the federal government acted. Hence, it brought
proceedinegs, claiming that the instrument for the forsiation of lalaysia
should be declared null and void (9).
The second Proclamation of Emergency applied only to the State
of Sarawak. The crisis was precipitated by an internal jostling for
power in Sarawok. The Chief A.inister at the time was Stephen Kalong
Ningkan. On 16 June 1966, 21 of the 32members of theCouncil Negeri
(StateCouncil) signed apetitionstating their lossofconfidence in the
Chief Minister. The Chief Minister refused to resign, declaring that the
(4) L.N. 271/3.0.1964
(5)P.U. 339 A/14.9. 1966
(6)P.U. (A)145/15.5. 1969
(7) P.U. (A)358/8.11. 1977
(8) M.0. Ariff, ThePhilippines claim to Sabah: Its Historical,
Legal and Political Implications (OxfordUniversityPress, 1970).
(9)TheGovernmentof the State of Kelantanv.TheGovernmentof
the FederationofMalayaandTunku AbdulRahmanDutraAI-Haj,
(1963) M.L.J.355. The Government of Kelantanlost the case.
- 200 -
no-confidencepetitionshouldi._debated in the CouncilNegeri in
accordance withthe Constitution. TunkuAbdul RahmanAl-Haj, the Prime
Minister,demandedthat StephenNingkanstepdown. TheGovernorof
Sarawak alsoattemptedtodismissNingkan, togetherwithothermembers
ofthe SupremeCouncil (orStateCabinet), and appointedPenghuluTawi
Sli as thenewChiefMinister. However, theFederal Court issuedan
injunctiondeclaring theappointmentof the newChiefMinistervoid.
This Emergency was declared on 15 September 1966.
The third emergency was imposed on the entire Federation of
Malaysia,on 13 May 1969. The reason for itwas the violentcommunal
rioting that broke out between Malays and Chinese in Kuala Lumpur on the
night of 12 May, continuinguntil 15May (10). The riotingwas widespread
in the city ofKuala Lumpur, leading toconsiderable death and destruction.
Nearly 10,000peoplewere givenshelter in temporaryrefugee camps
within the city and reliefwas providedto them throughthe Red Cross.
Initially, onlyacurfewwas imposed but later as the riots
continuedto spreadanationalemergencywasdeclaredumderwhichthe
government assumedpowers to hold special trials, to suspend or amend
any law, to revoke citizenship,to enter and searchpremises,and to
imposeanypenalty, includingthe deathpenalty. The emergencypowers
alsoempoweredthe governmentto suspendthe electionsthatwere to take
place in Sarawak andSabah. Furtherrigorous censorshipwas introduced.
On18May, the government announcedthat it had arrested,under the
emergencypowers, about 150persons as communist terrorists.
The fourthProclamationof Emergency, applyingonly to Kelantan,
was imposedon 8November 1977. Before the Proclamation, theParty
Islam (P.I.) was partof thegoverning coalitionof theNational Front.
P.I.'s leaderwas MohammedNasir,also theChiefMinisterofKelantan.
Hewas appointedby the thenPrimeMinister,TunAbdulRazak,leader of
theFederalgovernment and NationalFront,but his appointmentwas
againstthe wishesofhisownparty. In mid-September1977, Nasirwas
voted out ofoffice and laterexpelled fromthe PartyIslam. TheChief
Minister's contention was thathe wasappointedby TunAbdul Razakand
therulingNationalFrontand hence couldnot be removedbyanyone
except bythe NationalFront. This loss ofconfidence in the Chief
Ministerhadgravepoliticalsignificance. The NationalF itwas in
dangerof losingits controlover theState ofKelantanwithoutthe
supportofParty Islam.
On19October 1977, demonstratorsgatheredin the statecapital,
calling foradissolutionof the stategovernmentand theholdingof
freshelections. Althoughpeacefulto beginwith, itsoonbecame
violent. The demonstratorsconfrontedthepolice, smashedwindows,
and overturnedcars. The policemanagedto containthisoutbreakof
violenceand acurfewwas imposed. On8November1977, anemergency
wasdeclaredin theStateofKelantan.
(10)Fortheories as tothe causesoftheriots, seeTunkuAbdul
Rahman,13 May,Before andAfter,UtusanMelayuPress Ltd.,
KualaLunpur, 1969; JohnSlinming,Malaysia:DeathofDemoc!Ety,
London,JohnMurray,1969; KarlvonVorys,DemocracyWithout
Consensus, PrincetonUniversity Press,NewJersey,1975.
- 201 -
IV. THECONSTITUTIONALPROVISIONSRELATINGTOSPECIAL
AND EMERGENCYPOWERS
TheConstitutionofMalaysiaincorporatesprovisionsfor the
exercise of"special"and "emergency"powersinArticles149-151:
1.Article 149- entitledLegislationagainstSubversion -
confersspecialpowersonParliamentfordealingwithsub-
version,includingalimitedpower to legislateina
mannerwhichwouldotherwisebecontrarytoprovisions
ofthe Constitution.
2.Article150 - entitledProclamationof Emergency -
conferswide-ranging specialpowerson thelegislative
and executivebranchesuponthe issuanceof aProclamation
ofEmergency, whichincludefar widerpowersthan those
allowedunderArticle 149.
3.Article 151 - entitledRestrictionsonPreventive
Detention- laysdowncertainrequirements tobe observed
withregard topreventivedetention.
Thetext of thesearticles, as amended,willbe foundinthe
appendix.
ThePowersunderArticle 150
Article 150enables thegovernmenttoexerciseawiderange of
extraordinary executiveand legislativepowers. Themainfeatures
are as followc:
TheProclamation isrequiredtocontaincertainprescribed
recitals. Itisissued formallybytheKing,actingon the adviceof
thegovernment. Exceptonmattersrelatingto religion,citizenship
and language,emergencylegislationmaybe inconsistentwiththepro-
visionsof theConstitution. Legislationdealingwithpreventive
detentionmadeduringanemergencyhas,however, tocomply withpro-
visionsofArticle 151of theConstitution.
WhenanemergencyisproclaimedandParliamentisnot in
session,the executiveisempoweredtolegislatethroughordinances
and suchordinancescan be contraryto theprovisions oftheCon-
stitution. Finally,exceptonmattersrelatingtoMuslimlaw,Malay
customandnativelaworcustomin BorneoStates,theFederalParliament
isempowered to legislateonmatterspertainingtoStatesand the
Federalauthorities are empoweredtogivedirections to theauthorities
of the Stategovernments.
DevelopmentoftheProvisionhvConstitutionalAmendment
The steps bywhichArticle 150has beenamendedand strengthened
between1960and1981are of someinterest. Itwas amendedonfour
occasions.
The firstamendment byAct10 of 1960alteredclause3.ofthe
originalArti-le,whichstipulatedthataProclamationof Emergency
wouldbevalidonlyfor twomonthsunlessitwas approvedbytheParlia-
mentand thatordinancesmadebythe executivewouldcease tohave effect
- 202 -
fifteendaysafter the first sitting oftheParliament. Theamendment
alteredthis to providethat both the Proclamationand the Emergency
ordinancewouldcease tohaveeffectonlywhenrevokedor annulled.
Thusthis amendmentgave indefinitelife to theProclamationand the
ordinances.
Thesecondamendment, byAct 26 of 1963,broadened the scope
ofArticle150. Theamendmentdeletedfromclause 1.the following
words whichqualified the typeofemergency to be envisaged: "whether
by waror external aggressionorinternaldisturbance". Secondly, the
amendment strengthened the FederalParliament's competence to legislate
overstatematters. It alsochanged clause 6.which providedthat
emergency lawscould not be inconsistentwith theprovisions ofPartII
dealing withfundamental liberties. This amendmentstipulated that
emergency laws could be inconsistent withanyprovisionsof the Con-
stitution otherthan those relatingto religion,citizenshipand
language.
Thethirdamendment, byAct 68 of 1966, wasmade in connection
withacrisis in the State of Sarawak. It amendedbothclauses 5.and
6. to providethat emergencylegislacionwouldbevalideven if it was
inconsistentwiththe Constitutionof the StateofSarawak.
Courts' InterpretationofArticle150
The substantiveaswellas procedural aspects ofemergency
powershavebeenclarifiedbythe Courts throughvariousdecisions.
Onthe questionofwhether theYangdi-PertuanAgong (hereinafter
referred to as "the King") proclaimsanemergencyon the adviceof the
government or not, theCourts haveheld thatwhenissuingaProclamation
of Emergency,the Kingmustact onadviceof thegovernment.
On the questionofthepowers of judicialreviewof the
validityof theProclamation,the Courts haveconsistentlyheldthat
the determinationbythe governmentthat anemergency exists, andthe
issuanceofthe ProclamationofEmergency, are notjusticiable.
Onthepowerofthe executivetolegislate throughemergency
ordinances, the FederalCourthas held thatthe Kinghas andis intenied
to have, plenarypowersoflegislation as large and of the same nature
as thoseofthe Parliamentitself. TheCourtshave alsoheldthat the
powerto legislatecontraryto the Constitution can be delegated.
The PowersunderArticle 149 (LecislationagainstSubversion)
Article 149provi.lesfor limitedspecialpowers ifanActof
Parliament recitesthat actionhasbeentakenorthreatened byany
substantio' >.Ddy ofpersons (whetherinsideor outsidethe country):
(a)tocause, orto causeasubstantial numberof
citizensto fear,organizedviolenceagainst
persons orproperty; or
(b)to excitedisaffectionagainsttheKingorany
government in theFederation; or
(c)topromote feelingsofill-will andhostility
betweendifferentracesorotherclassesofthe
populationlikelyto causeviolence; or
- 203 -
(d)toprocure thealteration,otherwise thanby lawful
means, ofanythingby lawestablished; or
(e)which isprejudicial to thesecurityoftheFederation
or anypart thereof.
UnderArticle 149,thegovernmentcanenactlaws evenif they
are inconsistentwith the followingprovisions of the Constitution:
Article 5(libertyofthe person), Article 9(prohibitionofbanish-
mentandfreedomof movement)and Article lo (freedomofspeech,
assemblyand association). Laws createdunderArticle 149maybe
bindingover Stategovernmentswhichdo nothave tobe consultedin
their enactment. AsArticle149does notprescribe any time limit,
laws enactedunderit willremain in force indefinitelyunless repealed
by Parliament.
Developmentof the ProvisionsbyConstitutional Amendment
Article 149 has been amendedonce, byAct 10of 1960. The
originalArticlestipulated that lawscould be enactedunder itonly
if actionhas been takenor threatened by any substantial bodyof
persons tocause, or to cause asubstantial numberof citizensto fear,
organizedviolence againstpersons orproperty. The amendmentprovided
for the four additional kindsof actionor threat enumeratedin (b)to
(e)above. It alsoremovedthe restriction that lawsenactedunder the
powersofthisArticlewill remain in force onlyfor one year.
PowersunderArcicle 151 (PreventiveDetention)
ThisArticle,whichdeals withpreventivedetention,stipulates
thatthedetainedpersonmust be informedof thegrounds and the
allegationsof factuponwhichthe detentionorderis made, other
thanfacts whosedisclosure thedetaining authoritiesconsider would
be against the national interest. Anopportunity has to be given for
makingrepresentationagainst the orderandanysuch representationhas
to be consideredby an AdvisoryBoardwithin threemonthsor such longer
periodas the governmentmayallow.
DevelopmentoftheProvisions throughConstitutionalAmendments
Article151 has been amendedonthree occasions. Originally,
the Articleprovided thatapersoncouldnot be detainedformorethan
threemonthsunless the AdvisoryBoard so recommended. Thefirstamend-
ment,in 1960, madethe AdvisoryBoardspurelyadvisory,sothat the
detentioncould be continuedevenif theBoarddid not sorecommend.
The secondamendmentwas formal. The third amendment,in 1976, removed
the requirement thatthe Boardmust haveconsidered the representations
and reportedwithits recommendationswithin threemonthsofthe
detention. The onlyconditionnow is thatwhen repmsentationsaremade
by adetainedperson theyhave tobeconsideredby theAdvisoryBoard
withinthreemonthsoftheir beingmade,and this three months' limit
can beextended bythegovernmnnt.
CourtsInterpretationofArticle 151
Numerousdecisionshaveclarified the scopeofthe lawon
preventivedetention. The Courtshaveheldthattheexecutivehas
completediscretionto detainapersonanditisnot for theCourts
- 204 -
toreviewthe sufficiencyor relevancyof the factsonwhich the
executivebaseditsdecision. Apossibleexceptionis thatthe Courts
maybewillingtoreview theactionof theexecutive if anallegation
is madeof malafides, i.e. thatthepower ofdetentionhasbeenused
inbad faith forpurposesotherthan thoseprescribed by law. Thereis
nodecidedcase on thisissue and there are conflictingobiterdicta
onthe subject (11).
V. THEEXERCISEOFEMERGENCYPOWERS: INTERNAL SECURITYACT,
SPECIALREGULATIONSANDTHESOCIETIESREGISTRATIONACT
TheInternalSecurityAct, 1960
The majorpieceof legislationenacted underArticle 149and151
is theInternal SecurityAct,.1960 (12). The InternalSecurityAct was
derivedfromasimilarBritishColonialActcreated in1948 in the face
of communistinsurgencyled bythe MalaysianCommunistParty (MCP).
The InternalSecurityAct is an extensivedocument. Onlycertain
aspectswill bediscussedhere. Thepowersofpreventive (i.e. administra-
tive) detentionare providedfor inChapterII - Sections8to 11 andChapter
III - Section73. UnderSection73, apersonmay bedetained forupto 60
dayson the suspicion "thathehas actedor is abouttoactor is likely
to actin anymannerprejudicial tothe securityofMalayaor anypart
thereof", Section73 (1)(b). Aftersixtydays, thepersonmaybedetained
for aperiodof twoyears, ataplacechosenby theHomeMinister, and the
detentionis thenrenewable. Sinceadetaineehasonly therighttoreview
by the AdvisoryBoardat thebeginningof his detention,andthe Boardhas
nopower toreleaseadetainee,detentionorders can be renewedand
incarcerationmaycontinueindefinitely. In somecasespersonshave been
detainedwithoutchargeortrial forover16 years underthesepowers.
Other thanimprisonment,restrictions canbe imposedonother
freedoms, asbyhouse arrest,prohibition fromaddressingthe publicor
holdingofficeand prohibitionfrom leavingthe country (Section8).
Althoughthere is adutyto informadetainedpersonofthe
grounds ofdetention,there is noneedto disclosethe factsuponwhich
suchopinionis formedif it is consideredagainstthenational interest
(Section9).
(11) Cf. StephenKalongNirgkan f.TunAbangHaji Openg&
TawiSli (No.2), 1967,M.L.J.46, atp.47,and Stephen
KalongNingkanv.TheGovernmentofMalaysia,1968,M.L.J.119
atp. 124.
(12)Listed inthe GovernmentGazette,Vol.IV,No. 17,as no.18of1960.
- 205 -
Thepolicearealsogivenextensivepowersof arrest. Anypolice
officermayarrest apersonwithout awarrant uponsuspicionthattheper-
sonmayactprejudiciallyagainstthe nation, Section73(1). Thepolice
mayalsoarrestapersonfor failingto establishhis/her identityorfor
failingtoestablishapurposefor being ataparticular location (13).
Underthe InternalSecurityAct there arepowers tomarkcertain
areas as "securityareas" or "dangerareas". Any person foundwithun-
lawfulfirearms, ammunition,or explosives in a"security"areamaybe
sentenced todeath (Section57).
The Malaysiangovernmenthas consistentlyexpressed theview
that it hasdetainedonly thosepersons whohaveactedagainstthebest
interestsofthe nation,butaspersons canbedetainedon suspicion,
and noproofof any illegalact is required, it is impossible to verify
this assertion. Thenumber of personswhohavebeendetainedfor
periodsexceedingtwoyears underISAorders are asfollows: 1967 (265),
1975 (1,444)and 1977 (1,118). The number of personsdetainedfor the
60day investigatoryperiodare 1969-75 (3,454) and 1970-77 (6,861),
(14).
It is not questionedthat aproportionofthosedetained are
"communistsubversives" whohaveengaged inviolent actsof terrorism.
However, it has beenalleged thatthe Internal SecurityAct isalso used
tosuppresspoliticaldissentfromlegal oppositionparties aswe.ll as
tradeunions.
Emergency (SecurityCases)Regulations, 1975
Thedefinitionof 'securityoffence'inregulation21(1) of
the 1975 Regulationsempowersthe Attorney-Generalto certifythatan
offenceagainstany otherwrittenlaw affects the securityofthe
Federation,inwhich eventthepersonaccusedofthatoffencebecomes
liabletobe tried in accordancewiththe rulesofprocedureand evidence
prescribedbythe 1975 regulations.
An article onthisRegulationand onthe Provisionsofthe
Community (Self-Reliance)Regulations, 1975,in ReviewNo.16 (June1976)
of the InternationalCommissionofJurists,stated:
The International Covenant on Civil and Political Rights recognises
the right to suspend many human rights in the event of a "public
emergency which threatensthe life ofthenation...tothe extentstrictly
required by the exigencies ofthe situation". Regrettably, in more and
more countries states ofemergency are being procaimed and main-
taned for very long periods accompanied by restrictions on basic
human rights which appear to go beyond what is strictlyrequired for
protecting the "life ofthe naoon" asopposed to the life ofthegovern-
ment in power.
ThepolicehaveaSpecialBranchtodealwithsecuritymatters.
(13)
(14) AsiaForumonHumanRights,TheStateofHumanRights
inMalaysia,p. 8.
- 206 -
The Essential (Security Cases) Regulations, 1975, passed under the
long continuing state ofemergency inMalaysia,appear to fall 'nto this
category. Under these Regulations suspects may be detained on the
order ofthe Public Prosecutor for up to 60days without being brought
before amagistrate. A suspect who absconds and fails to surrender
within 30 days ofaproclamation will have all his property and assets
confiscated. Aperson charged with asecurityoffence will be triedby a
judge alone, without ajury. There will be no preliminary proceedings
and the defendant isnot entitled to see any prosecution witness state-
ment. Thecharges may be added tooramended at anytime beforetrial.
Bail may not begranted. Any numberofoffencesordefendants may be
joiied inthe same proceedings. Prosecution witnesses may be heard in
camera without the presence of the defendant or his counsel, or their
evidence may be given on affidavit omitting any matter from which the
witness could be identified. Convictions can be based on hearsay
evidence, as well as on uncorroborated testimony of an accomplice or
minor. A policeofficer cangive evidence ofan identification by athird
person without that person being called as awitness. If the case is
proved it ismandatory for the court to impose the maximum penalty
permitted by lawforthe offence, includinginappropriatecases d!!athor
Lfe imprisonment or, where the punishment includes whipping, "the
maximum ofsuch punishment ... inadditionto any other punishment".
There arelimitations on the defendant's rights ofappeal butthose ofthe
prosecution are unlimited. These regulations are to be seen against the
background ofthe existinglaw inthe InternalSecurity Act, 1960, under
which persons charged with acting against the security of Malaysia
could already be detained for indefinite periods.
Equally disturbing are the provisions of tht Community (Self-
Reliance) Regulations, 1975, which make every member ofahousehold
above the age of 14 responsible for the family's activities. Thisiseither
to be regarded as aform ofguilt byassociation, oras akind ofreprisal.
In either case it is aserious violation of basic principles of justice.
Students have been singledoutformore specific restrictions, apparently
inresponse to widespread student demonstrations insupport of the
demands offarm labourers on strike inlate 1974.The Universities and
University Colleges (Amendment) Act, 1975, prohibits students from
joining or supportingany society, political party, or trade union, inside
or outside Malaysia, even if lawfully estabiished. In addition, any stu-
dent charged with any criminal offence isautomatically suspended or
dismissed from his College or University. Measures such as this are
bound to drive undcrgrolind .i great deal of student activity and to
create the conditions for the spread of the subversion which the
emergency issupposedly intended to avoid.
It isencouraging that Malaysian lawyers have spoken out against
these new regulations."
The Universities
andCollegesActof 1975, alsorestricted
studentactivities inthe country'scampuses. In1979,regulations
were
drawnupto forbiduniversitylecturers fromparticipating
inpolitics.
Restrictions
have alsobeenimposedonothersectionsofsociety. In
1980, Parliamentpassedamendments to the TradeUnionOrdinance,placing
numerous restrictions
onthe activitiesof tradeunionorganisations
and
qivingmuchstrongerpowers to theTradeUnionRegistrar.
- 2o7 -
TheSocietiesAct
InApril 1981, amendmentswezemade to theSocietiesAct,1966,
givingthegovernment sweepirgpowers throughtheRegistrarofSocieties
to controlthe activities ofthe 14,000societiesregisteredin Malaysia.
Asoutlinedin ReviewNo. 27 (December1981) ofthe International
CommissionofJurists
- The changesmakeit illegalfor any society to comment
on politicalaffairs or anythingtodowithgovernment
unless it has been registeredas apoliticalsociety.
The Registrar is givenpowerto de-register any organisation,
removeits office-hearers,amend its rulesand include
certain provisions in its constitution.
Moreover, orgariisations may no longer challengethe
Registrar'sdecisions in court. Theycan onlyappeal
to the HomeAffairsMinister,whose decisionwill be final.
Orqanisationsare no longer allowedto affiliatethemselves
withforeignorganisations,nor to receive funds fromany
foreign source,exceptwiththe Registrar'spermission."
Manyvariedsocieties representingabroad spectrumofMalaysian
life jointly opposedthe amendmentsmade to theSocietiesAct. As a
consequence, thegovernmentindicated its willingness to reconsiderthe
amendments.
VI. ROLEOFTHEJUDICIARYAND THEBAR
The role ofthe Judiciary has been limited. The Courtshave
consistently takenthe viewthat the determination bythe government
thatan emergencyexists, and the issuanceof theProclamationof
Emergency, are non-justiciable.
In contrast,the positions takenby theBar have been
exceptional. It has, onanumberof occasions,madeoutspoken
commentsonemergencylegislationor its application. ReviewNo.22
(June1979)of the InternationalCommissionofJuristsdrewattention
inone of its reports, as follows:
Ilieconditions oprceniti, dtcntinn ill alal\ia ppear tai Ir l 1m1
adequate, according hnacritical report oI tile MNIla inllai (',iiuiil.
ilre ("Co ncil. in adtocul icii cnl ijilt,'ai r rit the l'rinc iidIthe Allot
(ielicial and Iak N%,iliiicil Ni (it the cotihitii olalIII ii"S lltiolltI[
ha iiaulc romi the otl dcutiies i ,ll hi.lite
inii) cni,plaiii ;llliites
comndition% tini ici Mhuchthii elt;lt.s hr;nt. hetlriit;rmltlIll.I - lilt-
Internal Sect it %Act of I960
Ilie 1larCouncilhoundthatdetaincesare hcingtieaiedaiittlreve'ci
crininals.although lehtitcil rrl tio(eriteAct aplliei i i% %;trliil:a
piulitikc mcasure. In itireport, made pulhli inMarch 1l'79, (lie II
(ouncil states detaintc,, ba ,,uhiectto that hein d soliltry
confinement, prnlnged interrogation, restictirins olthe right it
cotuinsel, limitationson a'ccss to readingniale iah1s%ella itlade(ltae
medical care.
It istobehoped thattheaction takenbythe MalayanBarCouncilin
bringingtopublicattentiontheconditionsofdetentionwillbefollowed
bybar associationsin othercountries wheresuch conditionsprevail. IJ
- 208 -
VII. CONCLUSIONS
In spiteofthe considerablesocialdivisions in itspopulation,
andin spite of its havinghadto contendwithattemptsbyMarxist-led
guerrilla forces,datingfrombefore independence, to overthrowthe
democratic formof society,the FederationofMalaysiacanclaimto be
amongthemostdemocraticcountriesin itsregion, and toenjoy toa
considerabledegree fundamental freedomsunder the RuleofLaw.
Duringits historyit has onfouroccasionsexperienced
proclamationsof States of Emergency, twoofthem beingonly
local in theirapplication. The need for theseproclamationshas not
beenseriouslychallenged.
As in othercountries, therehave beencriticisms that the
governmenthas prolongedthe statesofemergencybeyondthe termination
ofthe circumstanceswhich gaverise to them,andhas progressively
extended,rather than lessened,theexceptionalpowersit has taken
underthem.
The fact that emergencymeasuresare intendedto beonly
temporary in character is lostsightofwhen,ashas happenedin
Malaysia,persons are heldin administrativedetentionfor periods
exceeding16 yearswithout any chargebeing preferredagainst themand
withoutbeing broughtbeforeaCourt. Toextendemergencypowersin
thisway is to strip constitutionalruleofmuchof itsmeaning.
Theprob3lems confrontingany governmentinMalaysiainmain-
taining stabilityand orderarereal, andit is never easynorwelcome
foroutsiders toseekto pass judgmentuponthe measureswhich have
beenadopted to secure the necessarystability. It is,however,
difficultto avoidthe conclusionthat theemergencypowerswhichhave
beenassumedare unnecessarilywide. The whole rangeof security
legislationinthe country, includingtheprovisionsofthe Internal
SecurityAct, wouldperhapsbenefit fromanindependentreviewbya
highlevelMalaysianCommission inwhich itsrespectedand competent
juristsand advocatesshouldbe represented.
-0-0-0-0-
APPENDIX
DEVELOPMENTOFTHECONSTITUTIONAL
PPOVISIONSONEMERGENCYPOWERS
ProvisionsRecommendedby 1957 Provisionsofthe Constitutionas they ProvisionsoftheConstitutionas
ConstitutionalCommission originallystoodonMerdekaDay amendedand astheystandpresent-
lyat timeofwriting (Oct.1977)
137.-(l) Subjecttothepro- 149.(l) If anActofParliamentre- 149.(l) If anActofParliament
visionsof thisArticle,ifan citesthataction hasbeentakencr recitesthatactionhas beentaken
ActofParliamentrecitesthat threatenedby anysubstantialbodyof orthreatenedby any substantial
actionhasbeentaken orthreat- persons,whetherinsideor outsidethe body ofpersons,whether inside r
enedby anysubstantialbodyof Federation,tocause,or tocause a outsidetheFederation--
persons,whetherinside orout-
sidetheFederation, tocause,or
tocause anysubstantialnumber
ofcitizenstofear, organized
substantialnumberofcitizensto fear,
organizedviolenceagainst personsor
property,anyprovisionofthatlaw
designedtostoporpreventthataction
(a) to cause, or to cause a sub-
stantial numberofcitizensto
fear, organised violence
violence againstpersonsor is valid notwithstanding that itiso
or
property,anyprovisionofsuch inconsistentwithanyoftheprovisions o
Actdesignedto stopsuchaction ofArticle 5,9,or 10, orwouldapart (b)to excitedisaffectionagainst
ormeet suchthreatshall be fromthisArticlebeoutsidethe theYangdi-PertuanAgongor
lawful notwithstandingthatit legislativepowerofParliament;and anyGovernment intheFed-
isrepugnanttoany ofthepro- Article 79shallnotapplytoaBill eration; or
visionsofArticles5, 9,10, forsuchanLctor anyamendmentto (c)topronote feelingsofill-
68or 73.
(2) AnyActofParliament to
whichclause (1)appliesshall
cease tooperateontheexpira-
such aBill.(ctopotefligofl-
(2) Alawcontainingsuch arecital
as ismentioned inClause (1)shall,if
not soonerrepealed,ceaseto have
willandhostilitybetween
differentraces orother
classes of thepopulation
lke ocuevolen
tionofaperiodofoneyearfrom effect ontheexpirationofaperiodof (d)toprocurethealteration,
thedateoftheenactment oneyear fromthe dateonwhich it comes otherwisethanby lawfulmeans,
thereof,withoutprejudice tothe intooperation,withoutprejudiceto ofanythingbylaw established
powerofParliamenttorenewsuch thepowerofParliament tomakeanew or
Act inaccordancewiththe lawunder thisArticle. (e)which isprejudicialtothe
provisionsofthisArticle. securityoftheFederationor
anypartthereof,
anyprovisionof thatlawdesigned
tostopDr preventthatactionis
138.-(l) IftheFederalGovern-
ment is satisfiedthatagrave
emergencyexistswherebythe
securityor economiclifeofthe
Federationorofanypartthereof
is threatened,whetherbywaror
externalaggressionorinternal
disturbance,the Yangdi-Pertuan
BesarmayissueaProclamationof
Emergency, inthisArticle
referredtoasaProclamation.
(2) WhenaProclamationis
issuedin accordancewiththe
provisionsof clause (1), ifParlia-
mentis notsittingit shallbethe
dutyoftheYangdi-PertuanBesar
to summon Parliament as soon as may
bepracticable.
150.(l) If theYangdi-PertuanAgong
is satisfiedthatagraveemergencyexists
wherebythesecurityoreconomiclife of
theFederation orofanypartthereof is
threatened,whetherby war orexternal
aggressionor internaldisturbance,he
mayissueaProclamationofEmergency.
(2) IfaProclamationofEmergencyis
issuedwhenParliamentis notsitting,
theYangdi-PertuanAgongshallsummon
Parliamentas soon asmay bepracticable,
andmay,until bothHousesofParliament
aresitting,promulgate ordinanceshaving
theforce oflaw,ifsatisfiedthat
immediateactionis required,
valid notwithstanding
that itis
inconsistentwithanyof thepro-
visions ofArticle 5,9or10, or
wouldapart fromthisArticlebe
outsidethat legislativepowerof
Parliament; andArticle79shall
notapply toaBill for such an
Actoranyamendmenttosuch a
Bill.
(2) Alaw containingsucha
recitalas is mentionedinClause
(1)shall, if not soonerrepealed,
cease tohaveeffect ifresolu-
tions are passedby bothHouses of
Parliamentannullingsuch law,but
withoutprejudicetoanythingpre-
viouslydonebyvirtue thereofor
to thepower ofParliamenttomake
anewlawunderthisArticle.
150.(l) IftheYangdi-Pertuan
Agong is satisfiedthat agrave
emergencyexists wherebythesec-
urity oreconomic lifeoftheFed-
erationorof anypartthereofis
threatened, hemayissue aProcla-
mationofEmergency.
(2) If aProclamationofFmer-
gency isissuedwhenParliamentis
not sitting,theYangdi-Pertuan
AgongshallsummonParliamentas
soon as maybepracticableandmay,
untilbothHouses ofParliament
are sitting,promulgateordinances
havingthe forceoflaw,ifsatis-
fied thatimmediate actionis
required.
0
(3) AProclamationshall belaid (3) AproclamationofEmergency
before bothHouses ofParliamentand,andany ordinancepromulgatedunder
ifnotsoonerrevoked,shall ceasetoClause (2)shallbe laidbeforeboth
operateatthe expirationofaperiodHouses ofParliamentand,if not
oftwomonths fromthedateof its
issueunless, beforetheexpiration
ofthatperiod, ithasbeenapproved
byresolutions inbothHousesof
Primn.of
(4) While aProclamationis in
operation,notwithstandinganything
in thisConstitution--
(a)theexecutiveauthorityofthe
Federation shallextend toany
ofthe matterswithinthe
legislativeauthorityofa
Stateand tothegivingof
directionstotheGovernment
ofaState ortoany officer
or authoritythereof;
(b)thelegislativeauthorityof
Parliament shallextendto--
(i)anymatterwithinthe
exclusive legislative
authorityofaState;
(ii)the extensionof the
maximumdurationof
Parliament orofaState
soonerrevoked,shall cease tobe in
force--
(a)aProclamationat the expiration
(a apr ionatt hexpira in
aperiod oftwomonths beginning
withthedateonwhichitwas issued;
and
(b)anordinanceat theexpiration of
aperiodoffifteendaysbeginning
withthedateonwhichbothHouses
are firstsitting,
unless, beforethe expirationofthat
period, ithas beenapprovedbya
resolutionof eachHouse ofParliament.
(4) While aProclamationofEmer-
gency isin forcethe executive authority
oftheFederation shall,notwithstanding
anythinginthis Constitution,extendto
anymatterwithinthe legislativeautho-
rityof aStateand tothegiving of
directions to theGovernmentof aState
orto anyofficeror authoritythereof,
(3) AProclamationofEmer-
gency and anyordinancepromulga-
tedunderClause (2)shall be laid
beforeboth HousesofParliament
and,if not soonerrevoked,shall
cease tohaveeffect ifresolu-
tions are passed bybothHouses
annullingsuchProclamationor oriacbtwhutpedceo
ordinance, but withoutprejudiceto
anythingpreviouslydone byvirtue
thereofor tothepower ofthe
Yangdi-PertuanAgongto issuea
newProclamationunderClause (1)
orpromulgateanyordinanceunder
Clause (2).
(4) While aProclamationof
Emergency is inforce theexecu-
tiveauthorityoftheFederation
shall, notwithstandinganything
inthisConstitution,extendto
anymatterwithinthe legislative
authorityofaState andtothe
givingofdirections totheGovern-
mentofaStateor toanyofficer
orauthoritythereof.
Legislature,the suspension
ofanyelectionrequiredbyor
under thisConstitutionorthe
Constitutionofany State,and
themakingofanyprovision
consequentialuponorincident-
al thereto; and
(c)ifandso longaseitherHouseof
Parliament isnotsittingandthe
FederalGovernmentis satisfied
thatexistingcircumstances
requireimmediate action,the
Yangdi-Pertuan Besarshallhave
powertopromulgateordinances
havingtheforce oflaw.
(5) AnyprovisionofanActofPar-
liamentenactedwhileaProclamation
is inforceshall bevalidnotwith-
standingthatitisrepugnanttoany
provisionofPartII.
(5) WhileaProclamationofEmergency
isin forceParliamentmay, notwithstanding
anythinginthisConstitution,makelaws
withrespecttoanymatterenumerated in
theStateList (otherthan anymatterof
Muslimlawor thecustomoftheMalays),
extend thedurationof Parliamentorofa
State Legislature,suspendany election,and
make anyprovision consequentialuponor
incidentaltoanyprovisionmade inpur-
suanceofthis clause.
(5) SubjecttoCleuse (6A),
whileaProclamationofEmergency
is inforce,Parliamentmay,not-
withstandinganythinginthis
Constitution,orintheConstitu-
tion oftheStateofSarawak*,
makelawswithrespecttoany
matter, if itappearstoParlia-
mentthatthelawis requiredby
reasonofthe emergency; and
Article79shallnot applytoa
Bill forsuchalawor anamend-
menttosuch aBill, norshall any
provisionof thisConstitutionor
of anywrittenlawwhichrequires
anyconsentor concurrencetothe
passingof alaworany consulta-
tionwithrespectthereto, orwhich
restricts the comingintoforce of
alawafterit ispassedorthe
presentationofaBill totheYang
di-PertuanAgongforhisassent.
(6) AnyprovisionofanActof (6) Noprovisionofany lawor (6) SubjecttoClause(6A), no
Parliamentwhichwould,butforthe ordinancemadeorpromulgated inpur- provisionofany ordinancepromul-
provlzionsofthis Article,be invalid suanceofthisArticleshall beinvalidon gatedunder thjz Article,andno
shallcease tohaveeffectonthe the groundsofany inconsistencywiththe provisionof anyActofParliament
expirationofaperiodofsixmonths provisionsofPartII, andArticle79shall whichispassedwhile aProclama-
after theProclamationhas ceasedto not applyto anyBillforsuchalawor any tionofEmergencyis inforceand
operate,exceptas tothingsdoneor amendmenttosuchaBill. whichdeclaresthatthe lawappears
omittedtobedonebeforethe
toParliamenttoberequiredby
expirationofthesaidperiod.
reasonof the emergency,shallbe
invalidonthegroundof inconsis-
tencywithany ?rovisionofthis
ConstitutionoroftheOonstitu-
tionoftheStateofSarawak*.
(6A) Clause (5)shallnot ex-
tendthepowersofParliamentwith
respectto anymatterofMuslim
laworthe customoftheMalays,
or withrespect toanymatterof
nativelawor custominaBorneo
State; nor shallClause (6)valid-
ateanyprovisioninconsistentwith
theprovisionsofthis Constitution
relatingtoany suchmatteror
relatingtoreligion,citizenship,
or language.
* TemporaryamendmentvideAct68/
1966w.e.f.20.9.1966whichwill
cease tohave effectsixmonths
afterthedate onwhichthe
ProclamationofEmergency of
14.9.1966 (P.U.339A/1966) ceases
tohaveeffect.
--
(7) Anordinancepromulgatedunder (7) Atthe expirationofaperiodof
thisArticleshallhave the same forcesixmonths beginningwith the dateonwhich
and effectas anActofParliament,
butevery such ordinance--
(a)shallbe laidbeforebothHouses
ofParliament andshall ceaseto operateat the expirationof
fifteendays fromthereassembly
ofbothHousesunlessbefore the
expirationofthatperioditis
approvedby resolutioninboth
Houses,and
(b)maybe withdrawnatanytime by
theYangdi-PertuanBesar.
(8) Where aProclamationrelates
to apartonly oftheFederation,
Feeratonsuance toapartonlyof
te
the expression;'State" inthis
Articlemeans aState whollyor
partially withinthatpart.
139.-(l) Whereany lawinforce
underthisPartprovides forpre-
ventive detention,noctizenof
Malayashallbedetainedunder such
law for aperiodlongerthanthree
months unlessan advisoryboard,
consistingofthreepersonswho
areorhave beenor arequalified
tobejudges oftheSupreme
Court,and are appointedbythe
ChiefJustice,hasreportedbefore
theexpirationofthe saidperiod
ofthreemonths, afterconsidering
anyrepresentation
madeinaccord-
ancewithclause (2), thatthere
is,initsopinion, sufficientcause
for suchdetention.
aProclamationofEmergency ceases to be in
force,any ordinancepromulgatedin pur-
suanceofthe Proclamationand,to the
extentthatit coild
made but
nothavebeenvalidly forthis Article, anylawmade
while the Proclamationwas in force, shall
ceaseto haveeffect, exceptas tothings
done or omitted to hedonebefore the
expiration ofthatperiod,
151.(1) Where any laworordinancemade
orpromulgated inpursuanceofthisPart
prOvides forpreventivedetention
(a)the authority onwhoseorderany per-
sonisdetainedunder thatlawor
ordinanceshall, as soon asmay be,
informhimofthe grounds forhis
detentionand,subject toClause (3),
the allegationsof factonwhichthe
order isbased, and shallgivehim
the opportunityofmakingrepresen-
tations againstthe order as soon as
maybe;
(b)no citizenshallbedetainedunderthe
laworordinancefor aperiodexceeding
threemonthsunless an advisoryboard
constitutedas mentionedinClause (2)
has consideredany representations
madeb,himunderparagraph (a)andhas
reported,before theexpirationof that
period, thatthereis initsopinion
sufficientcause forthedetention,
(7) At the expirationofa
periodof sixmonthsbeginningwith
the dateonwhich aProclamationof
Emergency ceasestobe inforce,
anyordinancepromulgatedinpur-
suance of the Proclamationand,to
the extentthat itcouldnothave
beenvalidlymadebut forthis
Article,anylawmadewhile the
Proclamationwas inforce, shall
cease tohave effect,exceptasto
thingsdone oromitted to bedone
beforetheexpirationoftnat
period.
151.(1) Where any law orordin-
ance ma e p uor t in-
ancemade orpromulgatedin pur-
of thisPoi:L providesfor
preventivedetentionp e
(a)the authorityonwhoseorder
any personis detainedunder
that lawor ordinanceshall,
as soon asmay be, informhim
ofthegrounds for hisdeten-
tionand, subject toClause (3),
the allegationsof facton
which the order is based,and
shall give himthe opportunity
ofmakingrepresentations
againstthe orderas soonas
may be;
b)notcitizen shallcontinueto
bedetainedunderthatlawor
ordinanceunless anadvisory
board constitutedasmentioned
inClause (2)has considered
any representations
made by him
(2) Whenanyperson isdetained
inpursuanceof anordermadeunder
any lawprovidingforpreventive
detention,theauthoritymakingthe
order shall, assoonasmaybe,
communicateto suchpersonthegrounds
thereoftogetherwiththe allegations
of factuponwhichtheorderisbased
andshall affordhimthe earliest
opportunityofmakingarepre-
sentation againsttheorder.:
Provided thatthesaidauthority
mayrefusetodisclosefactswhose
disclosurewouldbe,in the
opinionofthe authority,against
thenationalinterest,
(2) Anadvisoryboardconstitutedfor
thepurposeofthisArticleshall consist
ofachairman,who shallbeappointedby
theYangdi-PertuanAgongfromamong
personswho areorhavebeenjudgesof
theSupreme Courtor are qualifiedto be
judgesoftheSupremeCcurt,and two
othermembers,whoshall beappointedby
theYangdi-PertuanAgongafter con-
sultationwiththe ChiefJusticeor, if
atthetime another judgeoftheSupreme
Courtis actingforthe ChiefJustice,
afterconsultationwiththatjudge.
(3) ThisArticledoesnotrequireany
authoritytodisclosefactswhosedis-
closurewouldinitsopinionbeagainst the atioal nterst.Malaysia
thenationalinter'sst.
under paragraph (a)andmade
recommendationsthereontothe
Yangdi-PertuanAgongwithin
threemonthsofreceiving such
representations,orwithin such
longerperiodas the Yang
di-PertuanAgongmay allow.
(2\Anadvisoryboardconstitu-
tedfor the purposeof this Article
shall consistofachairman,who
shall beappointedby theYangdi-
PertuanAgongand who shall beor
judgeof theFederalCourtor a
HighCourt,orshall before
Mlgh Cut hallbefore
Day havebeen ajudge of
theSupremeCourt,andtwoother
members,whoshall beappointedby
theYangdi-PertuanAgongafter
consultationwiththe LordPresi-
dentoftheFederal Court.
(3) ThisArticledoesnot
requireany authoritytodisclose
factswhosedisclosurewouldin
itsopinionbeaqainstthenational
interest
- 217 -
THESTATEOFEMERGENCYINNORTHERN IRELAND
CONTENTS
Page
I.
II.
III.
IV.
THEEMERGENCYANDITS BACKGROUND..........................
EFFECTS OFEMERGENCYMEASURESONCIVILRIGHTS............
REVIEWOFTHE EMERGENCYANDEMERGENCYMEASURES .........
CONCLUSIONS............................................
219
225
238
243
-0-0-0-0-
- 219-
I. THEEMERGENCYANDITS BACKGROUND
TheNorthern Irelandproblemis alegacyofEngland's800 year
longinvolvement
in Ireland. Fromthe timeofHenryII, theKingsof
Englandand thenEnglishParliaments
assertedtheirstrategicandeconomic
interests,
conquering
the local inhabitants
andintroducing
large
garrisons
ofsettlers,particularly
in the seventeenth
centuryplan-
tations. Largetracts of land innorth-central
and north-western
Ireland,
forfeited
bythe treasonof rebellious
lords, wereparcelledout to
Englishcolonistswithoutregardtothe rights ofIrish landholders
and
tenants.
The Ulster plantation
had beenprecededover centuriesby
extensive
informalmigration
of Scotssettlers alongIreland's
eastern
coasts, aprocess whichspeededup after theplantation
in the second
halfofthe seventeenth
century. MostsettlerswerePresbyterians
or
Anglicans,
whereastheearlier inhabitants
remained loyal to the Roman
CatholicChurchand, as "Popishrecusants",
sufferedmajorcivildis-
abilities,
onlyreceiving
fullpolitical
rightswithCatholicemancipa-
tionin 1829.
In contrast,
theProtestant
minorityin Ireland (inparticular
theAnglicans)
enjoyedanascendancy
throughout
the island,exercising
influenceonsuccessive
Britishgovernments
and havingadisproportion-
ately large share ofthe land and wealth.
Therewas, however,afundamental
difference
betweenthe settlers
inUlster and thoseelsewhere.
In other partsof Ireland,theProtestant
settlers were distributed
throughout
the territory
and in tine became
integrated
withthe rest of the population,
some oftheirdescendants
even becomingleaders in themovementforIrishindependence.
InUlster
settlerswereofadifferentnature andwerebroughtfor adifferent
purpose. Ulster hadoffered the strongest
and largestresistance
to
British domination,
and when finally theirforces
were defeated in the 17th
century, theUlsterplantations
were settled withself-contained
communi-
ties mostlyof Presbyterian
sects. Thesesettlersmade noaLtempteither
to integrate
with the local population
or even to dominate them. They
simply drove them outof their land,with the slogan"Tohellor to
Connaught",
Connaughtbeing the wildest,most
barrenandmost thinly
populated
provinceof Ireland. Consequently,
for 300 years the Ulster
Protestants
have remained acommunity
apart,fearful ofdomination
by
the Catholicpopular;on
of Ireland,and lookingto Britainto protect-
themfromit.
When, in 1922, the Britishgovernment
recognised
national
Irishaspirations
by grantingHomeRule underthe BritishCrownto the
IrishFreeState (thepre-cursor
of thepresentRe,ublicof Ireland)as
adominionwithinthe BritishCommonwealth,
it madeprovisionfor the
exclusionfromthe settlement
of sixof theeight countiesof the Pro-
vinceofUlster. Thiswas done under threatofarmedrebellionby the
UlsterProtestants.
Theeightcounties of theProvinceofUlsterwere
evenlydividedbetweenCatholicsand Protestants.
The six counties
were, therefore,carved
out tocreateNorthernIreland,with amajority
oftwo Protestants
for everyCatholic,aproportion
whichhas remained
eversince. Aprotectedascendancy in theNorthwas thus assured. How-
ever, insteadofdemandingthatNorthernIreland shouldbecomeafully
integrated
partof the UnitedKingdom,andthereby ensuringequaltreat-
mentfor the Catholicminority,the BritishParliament
grantedto Nor-
thern Irelandits ownParliament
andgovernment
for its internalaffairs.
- 220 -
Irishhistorytherefore resultedin therebeingaminorityof
Protestantsin the island ofIreland as awhole,butaminorityofRoman
Catholicsin partitioned-off
Northern Ireland. Tensionarisingfrom
Ireland'scolonial history,frompopulationdistribution,
fromsocio-
economicdisparities,
and fromtheapproximatecongruence of ethnic ties,
religionand nationalism,thusgave rise to problemsofself-determination
and the protectionof doubleminorities in thecontest ofdemocracy or
majorityrule - problemswhich led to an absence ofconsensusand toan
unwillingness
torecognise the legitimacyof the entityof Northern
Ireland onthepartofthe Catholicminority. Grievancesagainst the
Protestant-dominated
administration
strengthened the alienationof the
Catholicminority fromthe state: theCameronCommission, abodyappointed
by the NorthernIrish government inMarch 1969to reportinter alia, on
the causesofthe disturbances whichhad by then brokenc,1, confirmed
that there waswidespreaddiscrimination
of RomanCatholicsinhousing
and employment; that localgovernment electoralboundaries had been
deliberatelymanipulated to the detriment of theminority; that the
UlsterSpecialConstabulary
(theso-called "B"specials) constituted a
partisanandpara-militaryauxiliarypolice forcerecruited exclusively
fromProtestants; and that the authoritieshad failed to remedyoreven
investigate thesegrievances.
Against this background,civil unrest and interventionby illegal
Irishnatioralistpara-military
organisationsoccurredrepeatedly, in
particularin the periods 1922-1924, 1938-1939,1956-1962. Northern
Ireland has, in fact, beeninan intermittant steaf ofemergencysince
its creationin 1922, emergencylegislationbeing apermanentfeature of
the system. In particular, the CivilAuthorities (SpecialPowers)Act
1922granted sweepingemergencypowers, allowingtheMinister ofHome
Affairs for NorthernIreland to take all such steps and issue allorders
as might be necessary for preservingpeace andmaintainingorder. Measures
takenunder the Actwere containedin Regulations.
The numberandscope
of Regulationsin forcevariedover the years; they could be brought into
use withoutany legislative act orproclamation- eventhough theycould
bea- directlyoncivil rights. In 1971, thepowersunder theActwere
utilised to effectextra-judicial
deprivationof liberty.
Thepresentemergencydiffersin originfromearlierperiodsof
unrest in that ithas itsroots in acampaign for civil rightsfor the
Catholicminority,begun in 1963. Whatissignificant aboutthis cam-
paignis that it focussedonthe grantingof equal rightsand opportunities
toCatholicswithinNorthernIreland, rather than onthequestionof the
legitimacyof the state as such. Thefailure onthe partofthe authori-
ties to respond positivelyto the recognitionof thestate implicitinthe
demandfor civil riqhtsis oneof the rootcausesof thepresentemer-
gency: as Boyle, Haddenand Hillyarddescribein theirbook, "Lawand
State: acase-studyof NorthernIreLand", effective legalredressfor
justified grievanceswasdenied time and time again by theexecutive
and judicialauthorities.
It is withoutdoubtone ofthe most tragic
aspectsofthepresentemergency thatit has its roots in asituation
whichalsobore theseeds foran intercommunal
settlement basedon equal
rights andopportunities
for all citizens, Catholicand Protestant,within
the entityofNorthernIreland, and that thelegal systemand the courts
faileddismally intheir task to upholdthe rightsofcitizens in "the
oldestdemocracy in theworld". Had itdone so, thepresentbloodshed
mighthave been avoided.
- 221 -
As it happened,internecineviolence (inwhich elementsof the
policeforcejoined) led toare-emergenceofpara-militaryorganisations
andof theoldconflictabout the legitimacyof thestateofNorthern
Ireland.
The currentwaveofviolencecanbe said tohave followedon
fromacivilrightsprotestmarchheld in Londonderryon 5October1968
by the largelyCatholicCivilRights Association. Themarchwas supp-
ressedby the authorities and furthermarcheswerebanned. Thereafter,
disordersescalatedand actionsby variousgroups heightenedtension.
Renewedprotest marchingby the Civil RightsAssociationandother
Catholicgroupings,Protestant counter-marches
anddemonstrations,
sec-
tarianrioting, indisciplineby some membersof theR.U.C.andUlster
Special Constabulary,violence byextremistorganisations,
including
both the (Catholic)Irish RepublicanArmyand the (Protestant)Ulster
VolunteerForce,created furthercivil unrest. Casualtiesanddamage
topropertywereextensive.
Violence had begun haphazardly, and initiallytherewereno
organisedcampaigns ofarmed insurrectionby one sideorof armed
vengeanceby theother. However, extremists in the communities in-
flamedpassions andprecipitatedfurtherviolence. Eventually, in
August 1969,simultaneous CatholicriotinginLondonderry and Protestant
riotingand attacksonCatholicpropertyin Belfast leftthe Northern
Irelandgovernmentand its policeincapableofsuppressingthedisorders.
The British Armywas, withUnitedKingdomGovernmentagreement,called
in to restorepeace. Despite the Army's involvement,violenceby
illegal para-militarygroupings frombothcommunities increased. From
July 1970, the Armybecamethe target ofareactivated IrishRepublican
Army,which developed bothOfficial and Provisionalwings,the latter
beingmoreconvincedofthe necessity forgeneralisedviolenceand the
formermore reliantonpoliticalpressures. TheArmy'saction inres-
toringorderwasperceived by the Catholiccommunityas mainlydirected
againstit, and this was re-emphasisedwhenconjoinedwithsomeofficial
misbehaviour and improperinterrogationpractices (cf.theFalls Road,
Belfast operationof July1970; Londonderryshootings in earlyJuly
1971; the internmentoperationofAugust 1971; and "BloodySunday"of
30January1972 in Londonderry). Simultaneously,
Protestantpara-
militarygroupings initiatedsectarianwarfare againstthe Catholic
community,which they sawas passivelysupporting the I.R.A.and re-
unification of Irelano. Whenconstitutionalreforms wereimposed by
the United KingdomGovernment,
they resistedthese. Indeed, inMay
1974, the ProtestantUlsterWorkers' Counciland para-militaryleaders
were able to paralyseessentialservices and causethe collapseof
thethen Executivein NorthernIreland.
Nonetheless,major reforms and constitutional
changeswere
undertaken in the period1968 to 1972. These, however, didnot settle
the Northern Irelandproblem. Reformis inevitablyslowand never
satisfies thosewhowantarevolutionized society. Heightened ex-
pectationsofchange, indeeddemands 'orinstantmiracles,and the
fact thatsuch reforms were obviouslygivenunwillingly bythe Northern
IrelandgovernmentunderpressurefromWestminsterand in thefaceof
considerableoppositionbymembers ofthe governingparty,led todis-
missal of, and disillusionment
by theminoritywith, the reform
programme. Rational explanations fordelayare rejectedinsuch an
atmosphereofmistrust. Large-scalereformwould inevitablybeslow
- 222 -
becauseitwasessential thatitwouldbecarried throughwithoutprovok-
ingmajorProtestant counter-reaction,and because timeand adequateplan-
ningwasessential formajor restructuringof government,includingthe
wholerangeof localgovernment services. Anextensivereformprogramme
was initiatedand was virtuallyfully implementedwithinthree and ahalf
years ofits firstannouncement. There were majorchanges inlaw,structure
ofgovernmentand,most significantly,ofpower. The power changescomprised
ashiftof initiativeandactivity to theGovernmentand Parliament at West-
minster; adisbandmentby theGovernmentof Northern Irelandofits "private
army", theUlster SpecialConstabulary; the renunciationofpara-military
functions by itspoliceforce, the RoyalUlsterConstabulary (R.U.C.);and
full implementationof thedemocraticprinciple inparliamentary and local
governmentelections. Structurally, the wholeof localgovernment was
reorganised in orderto removepossiblecontroversial areas ofpowerfrom
local authorities,whichweremore likely to reflectpartisanprejudices,
and so as to transferthe administrationofthesepowers into the hands ofthe
independentCivil Service of NorthernIreland. Lpecial institutions
werecreated to ensure that therewould in futurebe nodiscrimination
inany aspect of publicadministrationor inany respectofanypublic
appointment. The institutions were the officeofNorthern Ireland
Parliamentary Commissioner for Administration,Commissioner for Com-
plaints,Ministerof CommunityRelations,CommunityRelationsCommission,
Civil ServiceCommission, andLocalGovernmentStaffCommission, combined
withcodesof employment procedureand non-discriminationundertakings
exacted in government contracts fromcontractors.
Althoughsome modificationsand amendmentsof the new legis-
lative measureswere desirabletomake thenew institutionsmore
effective, itis lair to state that the grievancesput forward in 1968
by the Civil RightsAssociationwere largely remedied, bitsecurity
legislation, particularlythe SpecialPowersAct, remained.
In 1971, the Northern Ireland government introducedadministrative
internment of persons suspected of terroristactivities, againstwhom
sufficient evidencecould not be producedin court. Neitherinternment,
nor political and social reform introducedsince that time have, however,
led toan end ofthe violence.
Furtherproposals forconstitutionalchange tomeet the Catholic
community'sdemands for power-sharingand areflectionof anIrish
dimensionwere insistedon by theHeathGovernment. Theyhopedto
conciliate the Catholicthirdof the population,whichwas byand
largedisaffected andpassivelysupportingurbanguerillas withan
adjacent friendly base (theRepublic), while the Catholic-supported
Parliamentary oppositionhadwithdrawnfromParliament sincemid-July
1971 because of refusal to hold apublicinquiry intotwo army shootings
in Lcndonderry. Despite imaginativeproposals by the UnionistCovern-
ment for functionalnarliamentarycouittees,aproportional represent-
ationelectoral system, for periodicborderpolls, for ajudicially
reviewablebill ofrightsand an advisory Councilof Irelandwithequal
membership for Belfastand DublinGovernments (1)theywere toldthat
(1) SeeCmnd. 560, Belfast,H.M.S.O., 1971 and Cmnd. 568,Belfast,
H.M.S.O., 1972.
- 223 -
lawand orderpowersmustbe transferred
toWestminster,
and that
constitutional
changeswereopen-ended.
Mr. FaulkneL's
government
resigned.
TheUnitedKingdom
Parliament
thenpassed the Northern
Ire-
land (Temporary
Provisions)
Act 1972. Thisprovided
for aSecretary
of
State for Northern
Ireland as chiefexecutive
officer.
TheParliament
of Northern
Ireland wasprorogued.
HerMajestyin Councilwouldby
Ordermake laws for Northern
Ireland,
while the Secretary
ofState
wouldmakeall delegated
legislation.
Thus beganDirect Rule, some-
thing intended
tobe inforce for onlyone year,but renewable
onan
annualbasis by parliamentary
resolution.
Direct rule is still in
force.
As the emergency
intensified,
and the Britishgovernment
becamedirectly
involved
in lawenforcement,
legislative
intervention
by the United KingdomParliament
became necessary.
Somechangeswere
designed
to avoid international
criticisms
(2), e.g. the Detention
of
Terrorists
Order 1972 (3)substituted
interimcustody
ordersand det-
ention for thedetention
and internment
powers under theSpecial Powers
Act andattempted
to-make
the procedure
fordetention
orders moreakin
toajudicial
proceeding.
The Northern
Ireland
(Emergency
Provisions)
Act 1973 (4)(NIEPA)replaced
this OrderafteraReporthad beenmade
by acommission
chaired
byLord Diplock
to consider
whatmeasures
other
thaninternment
by the executive
could be used todeal with terrorism
(5) . The 1973 Act repealed
and replaced
the Special Powers Act, which
was regarded
as odiousby the Catholic
community.
In fact, it made
modifications
to the lawofevidence
and criminal
procedure
which
facilitated
convictiun
of terrorists
(seebelow).
Following
further
public criticism,
aCommittee
under LordGardiner
reported
on the
working
of the 1973 Actwithabrief to preserve
so far aspracticable
themaximum
extentof civil liberties
(6). The Reportrecommended
a
reversion
to detention
by the executive
because
the quasi-judicial
procedures
had brought
the ordinary
processes
of law intodisrepute.
(2) TheRepublic
of Ireland lodged anapplication
against
the United
Kingdom at the European
Commission
of Human Rights on 16 December
1971. Ireland alleged
interalia that the measures
takenin
Northern
Ireland were in violation
ofArticle5ofthe European
Convention
onPumanRights since they failedtomeet the require-
ments of Article 15.
(3) S.I. 1972 No. 1632 (N.I. 15).
(4) c.53.
(5) Cmnd. 5185, Reportof theCommission
to consider
legalprocedures
to deal with terrorist
activities
inNorthern
Ireland,
H.M.S.O.,
1972.
(6) Cmnd. 5847, ReportofaCommittee
to consider,
in the contextof
civil liberties
andhuman rights,measures
todealwith terrorism
in Northern
Ireland,
H.M.S.O.,
1975.
- 224 -
Numerous safeguardsin the proposedexecutiveprocedurewere suggested.
Inthe event,theNorthernIreland (Emergency,Provisions) (Amendment)
Act,1975, partiallyenacted the GardinerReportrecommendations (7). The
legislationwas consolidatedas theNorthernIreland (EmergencyProvisionsi
Act,1978 (NIEPA).
The othersignificantUnitedKingdomActwaspassed to placate
publicopinion inGreatBritainafter the publichouse bombingsin
Birminghamin 1974, andwent throughall its legislativestageswithin
threedays. The PreventionofTerrorism (TemporaryProvisions)Act, 1974,
gave the police powursof arrest and detentionwhichwere increasingly
employed in NorthernIreland from 1976. The legislationwassubsequently
re-enacted in 1976 (8). NIEPA 1978 andPTA 1976are the majorActsunder
which tile law enforcement authorities operate.
Among other legislative measures to deal with the special cir-
cumstances inNorthernIreland, the followingmaybe mentioned: amendments
weremade to the PublicOruerAct to includegreater powersof prohibiting
processions and public meetings, and penalties for obstructive sitting in
public places and trespasses in public buildings; the Prevention of Incite-
ment to Hatred Act (U..) 1970, designed to impose penalties for incite-
ment to hatred against an%, section of the public in Northern Ireland on
groundsof religious belief, colour,race or ethnicor national origin;
furthermore, to cover the gap left by the abolition of the crime of mis-
prision of felony and the difficulty of securing information about
terrorists,adutywas imposed on everypersonwho had reason to believe
that any other person had died or received grievous bodily harm or had
been wounded as the result of the discharge of any firearm, explosive
]eice or by any offensive weapon, immiediately to inform a member of the
police or armed forces on duty of all the facts and circumstances of the
case so far as they were known to him.
Apart fromcreatingspecificoffences,these statutesconferred
executivepowers, in some casesexercisable by the SecretaryofStateand
in others by the law enforcementauthorities, to protectsociety against
terroristaction or againstbreachof the peaceor public disorder.
Failure to observe ordersgiven under the executivepowers are in most
casessanctioned by newoffences. Theexecutivepowersrelate to thepro-
scriptionof organisations,exclusionfromNorthernIreland or fromthe
United Kingdom,dispersal ofassemblies of threeormorepersons, the
regulationandprohibition ofprocessions, the regulationof funerals, the
stopping-upof highways, the regulationand prohibitionofroad traffic,
the stopping of trains, the closingofclubsand licensedpremisesand
(7) For cogentcriticismof the failureto enactmany recommended
procedural safeguards, see R. J. Spjut, "Executive Detention in
Northern Ireland: theGardinerReport and the Northern Ireland
(EmergencyProvisions) (Amendment)Act, 1975" (1975), X,Irish
Jurist, 272-299.
(8) The PreventionofTerrorism (TemporaryProvisions)Act, 1976,see
c.8,hereinafterreferredto as PTA 1976.
- 225 -
the takingofproperly.
Beforediscussing
anumberofaspectsof theemergencylegis-
lationinsomedetail, itmayalreadybe observedthatgenerallythis
legislation
has notonlygrantedwider,morediscretionary,
powers to
the executiveauthorities
and thepolice, butat the sametimehas
reducedjudicialcontrolovertheexercise ofthesewiderpowers,
leavingthemmoreopento abuse.
II. EFFECTSOFEMERGENCYMEASURESONCIVILRIGHTS
Measures takenby thesecurityforcesin NorthernIreland to
suppress terrorismbuiltupstrongfeelingsofresentmentagainst the
BritishArmybymembersof the community.
In ordertogather security
information
aboutterrorist
activities,
the army engaged inwidespread
search,arrestand"screening"
operations.
Information,
not only on
suspectedterroristactivities ofindividuals
but onwholesectionsof
the (minority)community,
was collectedpartlybysurveillance
by
uniformedand plain-clothes
personnel,partlyby recordinginformation
obtainedinsearches and road-blocks,
andinparticular frominformation
obtainedas aresult ofwidespread
arrests and interrogation.
There have beencomplaints bythe minoritycommunity, aswell
as bysomepartsofthe majoritycommunity,that the usemade by the
Armyoftheir powerswas excessiveand constituted areal and con-
tinuingsource ofgrievance and friction.
Inparticular,
therehave
beencomplaints aboutarbitraryuse ofthe powersofarrestanddetention
tobuildupdataonpersonsnot suspectedofinvolvement
in terrorism,
and as aformof harassment
ofparticular individuals
and groups. Other
criticismsweredirectedat the denialof various rights topersonsunder
detentionand toprisoners,
and inparticular
since the endingof intern-
ment,at thevarious modifications
to the criminal lawandproceduremade
bythe emergencylegislation,
andat ill-treatment
ofdetainees.
These
will bediscussedbelow.
ArbitraryUseof ArrestPowers
The general ruleinNorthern Ireland, as inEngland,is that
nomancan be arrestedorimprisoned exceptunder dueprocess oflaw
(Petitionof Right,1628 andMagnaCarta, 9Hen.3,c. 29). An arrest
may lawfullybeeffectedby apoliceofficer whoactsonawritten
warrantfor arrestgrantedbyaJusticeofthePeace,or other judicial
authoritywho is empowered toissue warrants, afterapplication
supported
byastatementonoathoutliningthe allegedoffence. Policeofficers
andprivatepersonshavepowerto arrestwithoutwarrantwhere they sus-
pectwithreasonable cause that acrimehas beencommittedor toprevent
thecommissionofanarrestable offence (CriminalLawAct, 1967,s. 2).
The arrestedpersonshould bemadeawareof the factthat heisunder
arrestandalsoshould beinformedpromptlyofthereasonfor his arrest.
If heis not soinformed oris informedofawrongreason,his arrest
is unlawful.
- 226-
TheDiplockCommittee was ofthe opinionthatthe above rules
are notpracticable for the initial arrestof asuspected terrorist in
theextremiststrongholds inNorthernIreland. Arrestsat the timewere
usuallymadeby soldiers (ratherthanbypoliceofficers), eitherin the
courseof anarmed patrol,orat road-blocks,or when,as aresultof
intelligenceinformationreceived, they conductedasurprise searchof
premisesonwhichterroristswerethought tobe present. LordDiplock
observedthatsuch arrestswereliable to be:
"hinderedbycrowds ofsympathisers, includingwomen and
children,hurlingstones and othermissilesandpossibly
carried outunder fire fromsnipers."
Accordingly, itwas enactedin s.12 of theEmergencyProvisions
Act, 1973 (consolidatedins.14 of the 1978Act) that:
"/I/ Amemberof HerMajesty's forcesondutymay arrest
withoutwarrant,anddetainfor notmore than four
hours,apersonwhom he suspectsof committing,having
committed or beingabouttocommitany offence.
/2/ Apersoneffectinganarrestunder this section
complieswith anyrule of lawrequiringhimtostate
the groundof arrest ifhe states that he is effect-
ing the arrestasamemberof HerMajesty'sforces."
AlthoughenvisagedbyLordDiplockas onlyto be usedto
establishthe identityof thearrestedperson,and nototherwisefor
questioning, thepower hasbeenwidelyabusedfor general information
gathering.
Equallywide, andequallyunchallengeablepowersofarrest,
but combinedwithmuchwiderpowersofdetention,have beengrantedto
the police. S.11 (1)ofthe 1978 versionof theEmergencyProvisions
Actprovidesthat:
"Anyconstablemay arrestwithoutwarrantanypersonwhom
he suspectsofbeing aterrorist."
Apersonarrestedunderthissectionmaybe detainedforup
to 72 hours. AsJudge Bennettnoted, the powerofarrestunder s.11
does notdependonthe suspicionorcommissionofany specificoffence;
andit ariseson the subjectivejudgmentof thepoliceofficer. As a
result,the arrests arede factounchallengeableincourt.
ThePreventionofTerrorismActprovidesins.12 thata
constablemayarrestwithoutwarrantanyone whomhe reasonablysus-
pects tobe:
"apersonwho is orhas beenconcernedin thecommission,
preparationor instigationof actsof terrorism."
Persons detainedunder thisprovisionmaybe heldforup to
48 hoursonthe authorityofthepolice alone; theSecretaryofState
forNorthernIrelandmayextendthisperiodby anotherfivedays, at
therequest ofthepolice (neitherthedetaineenorhis lawyeris heard).
- 227 -
Inspite ofthe fact that "reasonable"
suspicionis required,
thewillingness
ofthe courts toaccept apolice statement that their
suspicionis basedon information
whichcannotbe disclosedmake
arrestsunder s.12 of thePreventionof TerrorismActequallyun-
challengeable
as thoseunder s.11 ofthe EmergencyProvisions
Act.
In fact, in arulingonahabeas corpusapplication
onbehalf
ofMartinHenry Lynch,theLord ChiefJusticehas held that under the
emergency legislation
repeatedarrests inquick succession
on the same
suspicionare notunlawful,and that the treatmentand conditions
of per-
sons detainedunder this legislation
alsodo not affect the legalityof
that detention.
The writof habeas corpusis therefore notavailablein
case ofdenialof accessto alawyeror in caseof irregularpolice
behaviour.
Althoughtheemergency legislation
alsoprovidesforpowersof
arrest basedonsuspicionof aspecificoffence (ratherthan onmere
generalsuspicionof involvement
in terrorism),
the BennettCommittee
established
that in fact thepoliceuse the above two powersin all cases
irrespective
of the natureof their suspicion,
because thesepowers allow
for extendeddetention for questioning.
The policetherebyby-passsafe-
guards builtinto the provisiondealingwitharrestsmadewithaviewto
criminal prosecution.
Denialof Accessto aSolicitor
Access to asolicitoris governedby aprincipleofCommonLaw,
set out in the preambleto the Judges'Rules (whichgovern interrogation
in ordinarycircumstances):
"... everyperson atany stage ofan investigation
shouldbe
able to communicate
and to consultprivatelywithasolicitor.
Thisis soevenif he is in custody,providedthatin such acase
nounreasonable
delayor hindrance is caused to the processesof
investigation
or theadministration
of justice byhis doingso."
Ithas beenstated that "thisprinciple recognises thataccess to
asolicitorin general be allowedbut alsorecognises
that thepolice
haveadiscretionin certainspecificcircumstances
towithholdaccess
fromapersonin custody". However, the wordingofthe exceptionis so
vague and subjective
as to leave little force to therule, and the courts
have specifically
declined to declareincommunicado
detentionunlawful
(inreMartinLynch,supra).
In 1978, AmnestyInternational,
ci:ingpracticingsolicitors
in
NorthernIreland, linkeddenialof access to solicitorsdirectlywiththe
incidence of ill-treatment
of suspects. Althoughas aresultofthe
Bennett Committee's
recommendations
access to asolicitoris nowgranted
as of rightafter 48 hoursofdetention,
accessis still regularlydenied
until then,withoutany consideration
of the individualcase, whichwould
appear to be ar abuse ofthediscretionto deny accessuntil then. Even
whenaccess is grantedafter48 hours, thepolicehavearightto be
present,within hearing,at the meetingbetweenthedetaineeand his law-
yer. The latterhas provedunacceptable
tomostlawyers.
- 228 -
TheAdministrativeDirectionsto thepolice,appendedto the
Judges'Rules since the BennettReport (seebelow), alsogive aperson
incustodythe right tospeakon the telephoneto hissolicitororhis
friends.
Ill-treatment in the Courseof Interrogation
At the time of the August 1971 internmentoperation,thepersons
arrestedwere inL'r- ated, usuallyby membersof the R.U.C., inorder
to determinewhether theyshouldbe internedand to compile information
about the I.R.A. Maltreatmentduring interrogationwas investigated
in the Compton andParker Reports (9). The judgmentof the
EuropeanCourtof HumanRights in the caseof Irelandv.UnitedKingdom
gives apictureso far as theCourtcould get information. (Itcon-
cludedthat neither the witnessesfor the security forces nor the case
witnesses had givenaccurate and completeaccountsofwhathad happened.)
(10) . In general, it seems therewere widespreadassaults (kicking,
punching,hair-pulling,etc.) and forcingprisonersto standspread-
eagledor todo tiring exercises. Inparticular, at oneor moreun-
identified interrogationcentrcs, 14 prisonerswere subjected to
"interrogationindepth", sometimes referred toas "disorientation"or
"sensorydeprivation" techniques. These involvedwall-standing,hooding,
subjection to high-pitched noise,deprivationof sleep andof food and
drink. These techniques were, the Government conceded, authorisedat
"ahighlevel". Inthe Compton Report, the techniqueswere foundto
constitute "physicalill-treatment"but not "physicalbrutality". The
ParkerReport, withLordGardinerdissenting, concluded that the
applicationofthe techniques, subject to recommended safeguardsagainst
excessive use, neednot be ruled out onmoralgrounds. LordGardiner
foundall the techniquesillegalbothat English Lawandunder the
UnitedKingdom's internationalobligations, while the majority found
some if not all the techniques illegal atEnglishLaw. In fact, the
14 personswho broughtcivilproceedings to recover damages for wrong-
ful imprisonmentand assault,eachhad theirclaims settled for between
10,000- 25,000 individually (11). On 2March1972, the Prime
Ministerannounced tnat the government acceptedLordGardiner'sminority
report and that the techniques wouldnot in future beused. Adirection
op interrogationwas thenissuedprohibiting the use ofcoercionand
the five techniques. It alsomade itmandatoryfor there to be medical
examinations, thekeeping ofcomprehensiverecords,and the immediate
reporting ofany complaints of ill-treatment. FurtherArmyandR.U.C.
instructions in AprilandAugust 1972enjoined the properandhumane
treatuent ofprisoners, forbiddingresort to violence, the five tech-
niquesand threats orinsults. Again, inAugust1973, newinstructions
(9) Cmnd.4823. ReportonAllegationsAgainsttheSecurityForces
ofPhysical Brutality; HMSO, November1971 (theCompton
Report), andCmnd. 4901. Reportof theCommitteeappointed
to inquire into the InterroggtionProceduresinNorthern
Ireland, HMSO,March 1972 (the ParkerPeport).
(10) Ireland v.United Kingdom,para. 93.
(11) Ibid., para.107.
- 229 -
emphasised theneed by the Army inmakingarrests to behave properly.
Hcwever,theCommissionofEuropeanRightsconsideredthat there was
alack ofsatisfactoryevidenceas to how the regulationswereimplemen-
ted andobeyedin practice (12). Finally, theUnited KingdomAttorney-
General formallydeclared tothe EuropeanCourton8February 1977 that
theGovernmentof theUnitedKingdom"nowgive(s)this unqualifiedunder-
taking,that the 'fivetechniques'will notin any circumstancesbe
reintroducedas anaid to interrogation" (13).
TheGovernmentof theRepublicofIrelandhad claimed before
theEuropeanCommission andsubsequently before the CourtofHuman
Rightsthatthe ill-treatmentwasin breachofArticle3oftheEuropean
Convention on HumanRights. AlthoughtheCommissionfound the five
techniquesconstituted "torture",theCourt,by13-4, found theydid
not. However,by 16-1 they found the techniques used inAugustand
October1971 constitutedapracticeofinhumanand degradingtreatment
inbreachofArticle 3. The Courtalsoheld,unanimously, thatthere
existedat PalaceBarracksin the autumnof 1971 apracticeof inhuman
treatment,but that it had notbeenestablished that thepracticecontinued
beyondthe autumnof 1971. AtBallykinler, pracLicesby the Armyand R.U.C.
were"discreditableandreprehensible"butnot an infringementofArticle
3(14). In respectofother placesand cases (theUritedKingdomGovernment
havingcompensatedprisoners (15) and disciplinedsecurity forcemembers)
theCourt considered that,bearingin mindpreventivemeasuresnow taken
by theUnitedKingdom,individuals'
rights to pursuedomesticremediesor
individual applications,and the deterrenteffect ofthe findingsin respect
ofthefive techniquesand PalaceBarracks,therewas no needto re-openthe
case to hearfurther evidenceor to undertakesubstantialresearch,and
therefore concludedthat therewasnopracticeinbreachofArticle 3.
It is importantto note, however, that the Commission'sconsider-
ation regarded only the questionof whethertheinterrogationpractices
were inbreachofArticle3(inthatthey constitutedtortureor inhuman
and degradingtreatment). Sincethe litigationaroseoutof arrestswhich
weremadewithaviewto internment, the questionofthe acceptability of
practiceswhichare held not to bein breachofArticle 3,suchas those
practiced atBallykinler,wasnot considered. Some remarks aremadeon
this below.
After theautumnof 1971, scrutinyofnewspaperreportsreveals
intermittantallegationsofmaltreatmentandbrutality. Themostweighty
allegationappeared inaReportbyAmnesty International,publishedin
June 1978whichconcerned78persons detainedfor uptosevendaysunder
(12) Ibid., para.107.
(13) Ibid., para.102.
(14) Ibid.para. 181.
(15) Ibid., paras. 111-122,showthatmanyclaims
allegingassaultweresettledbythe authoritiesbythe paymentof
compensation.
- 230 -
emergencylegislation,mostof themarising in 1977. ThisReportled to
the appointmentof theBennettCommittee,which reportedfullyonpolice
i.aterrogation procedures. TheBennett Reportproducedmuchevidence
suggestinqmisconductby policeduring interrogation. Between 1April
1972 andSeptember 1978, therewere 119 claimscommencingcivil pro-
ceedings againstpolicemenfor damages forpersonal injuries arisingfrom
incidents in thatperiod (16). The EuropeanCommission ofHumanRights
found that between9August 1971 and30September1975, 798 tortactions
allegingassaults by the security forceswere commenced inNorthernIreland.
Ofthis numher, 222 caseswere settledout of courtfor damages totallinq
E420,000 (17). In criminalproceedingsagainstprisoners in the two years
from1July 1976 to 1Jily 1978, 15 statements wereruled inadmissible
(mostbecauseof ill-treatmentofprisoners). Additionally, theD.P.P.
declined toprosect.e 11 persons on the basis that he was not satisfied
that the statements had notbeen obtainedcontrary to section8ofNIEPA
1978,i.e. by inhuman ordegrading treatmentor torture and that this could
notbe disprovedby theCrown (18). Again,policeofficerswere prosecuted
for offencesagainstprisonersin custodyorin the course ofinterrog-
ation. Between1972 and 1978arising from8incidents, 19 officerswere
prosecuted (oneof themtwice) (19). In additionto these facts, the
forensicmedical officers chargedwith inspectingprisoners had,
beginningin 1977, expressed considerableconcern and protestat in-
creasingfinds of bruising, contusionsandabrasions, of tenderness
associatedwithhair-pullingand persistent jabbing,of rupture ofthe
ear drums, increasingmentalagitationand excessiveanxiety states, of
hyper-tension and hyper-flexion of joints. Particularconcernwas
expressedabout prisoners whohad gone throughCastlereagh (oneof the
main policeof'ices for centralisedinterrogation)and in early1978
concern for a hortperiodarose in respectof conditinns .tGoug>
(theothermainpoliceoffice), but these improved after strong
representationsby the doctors actingthere (20).
The BennettReportmadeproposalsdesigned toprotectprisoners
against beingharmedwhile Ia custoay, and alsotoprotectpoliceofficers
against false and exaggeratedcomplaints. In orderto clarify the
situationconcerningwhatconstituted "degradingphysical ormental
ill-treatment" (theprovisions about "force" beinginsufficiently
specific) the Reportrecommended:
"thatthe followingshould bespecificallyprohibited:
(i)any orderoractionrequiringaprisonertostrip
or exposehimselfor herself;
(16) Ibid., para. 155.
v.UnitedKingdom,FinalDecision oftheCommission,
15 December 1975, para.45.
(17) Donnellyet al.
(18) Cmnd. 7497, para. 156.
(19)The twice-prosecutedofficerwasoneof the catalystsleadingto
the proceedings inDonnellyetal. v.UnitedKingdom,Application
5577-5583/72,wherein itwas alleged thatthere wasan
administrativepracticeof ill-treatment.
(20) Cmnd. 7497, para.159.
- 231 -
(ii) anyorderoraction requiring
aprisonerto adopt
ormaintain
anyunnatural
or humiliating
posture;
(iii) anyorderoraction requiring
aprisoner
to carry
outunnecessarily
anyphysically
exhausting
or
demanding
actionor toadoptor maintainany such
stance;
(iv) the useofobscenities,
insultsor insulting
languageabout the prisoner,
his family, friends
orassociates,
hispolitical
beliefs, religion
or
race;
(v)theuse ofthreats ofphysical
force orof such
things as beingabandoned
in ahostile area; and
(vi) the useof threats ofsexual assaultor
misbehaviour."
(21)
Similarly,
in order to counter frequent
allegations
(andsome
ofthese were notcontested
by the authofities)
about the number and
lengthof interviews
undergone
by prisoners,
the Committee
felt that
thepresentrule that interviews
should normally
takeplace between
8a.m.and midnight
required
more regulation:
"We recommend
as follows:
(i) no singleinterview
should goonlonger thantheperiod
betweennormalmeal-times,
and interviews
shouldnot con-
tinueduringmeal-times;
(ii) an interview
should notcommence
or continueaftermid-
night,exceptwhere operational
requirements
(forexample,
anurgent need to find out where anexplosive
device has
been placed) demand that it should;
(iii)not more than two officers shouldbe presentat the inter-
viewofoneprisoner
atany one time; and
(iv) not more than three teams oftwoofficersshouldbe
concerned
with interviewing
oneprisoner."
(22)
TheChiefConstable,
with someminorqualifications,
accepted
theserecommendations.
However,
he andthe Northern
IrelandOfficecon-
sidered
that to attempttodefineconductwhichwould constitute
"degrading
physical
ormentalill-treatment"
in theR.U.C.Codewouldbe unprofitable,
as thismight appear tocondone ill-treatment
notspecified
inthe list.
Instead,
ageneralprohibition
againstsuchconduct wasmade, and it isnow
for any disciplinary
body todecidewhetherthe spiritoftheprohibition
has beeninfringed
in aparticular
case (23).
(21) Ibid., para. 180.
(22) Ibid., para.181.
(23) ActiontobeTaken,etc., pp.3and4.
- 232 -
The R.U.C.Codealsocontains aspecialsectionfor interviewing
officers. Other significantadministrativesteps to improve interrogation
standards are theestablishmentof atrainingprogrammefor interrogators;
apolicyof rotatingofficersbetweeninterroqationand generaldetective
duties; arule that in future female suspectsshallbeinterviewedinthe
presenceof awomanpoliceofficer; the provisionofmoreseniordetective
officersto supervise interrogation; the placingondutyat Castlereaghof
alarger number ofuniformed supervisoryofficers; the grantof powerto
uniformed inspectorr to enter interviewingrooms and to stopan interview;
theprovisionof viewinglenses in the doorsofall roomswherepersons
are interviewed in respectofscheduledoffences; the installation of
closed-circuit televisioncamera screens (c.c.t.v.) in all interrogation
interview rooms,withmonitorscreens available for theuniformedsuper-
visory staffon duty; the provisionofaccess to c.c.t.v.for medical
officers; the rule that throughout theProvincemedicalofficerswillsee
all terrorist suspects and persons suspected of scheduled offences once
every 24 hours; and the prominent display of large notices about prisoners'
rights in places to which prisoners have access (24)
HighConviction Rate Based onConfessions
In 1973, Special Courtswereestablished, following the recommend-
ationsof the DiplockCommittee, for trying personschargedwithvarious
terroristoffences. Two important changes were made with the express
intentionof facilitatingconvictions.
First, trial by jurywas abolishedinorder to avoid acquittals
due to bias or intimidation. The resultwas thatthe accusedare tried
in courts by ajudge alone, an innovationin the caseofseriousoffen-
ces underthe commonlaw,or indeedunderany systemof law.
Second, thecoimon lawrules on the admissibilityofconfessions
whether oral or written were substantially modified so as to make it
easier for theprosecutionto obtainaconvictionbaseduponanalleged
confession.
The commonlawrulesexcludestatements (whethercompletecon-
fessionsoradmissionsmerelyshowingan incriminating fact) if these
havebeen inducedby threats,pumisesor someformofoppressive con-
duct. An involuntarystatement (andthis has acquiredatechnical
meaniig)mustnot be admitted. Additionally,if the limitations on
questioningset out in the Judges' Rules (25) arenotobserved, thejudge
has adiscretion to excludeany statementmade tothe police (26).
Furthermore, there is anoverall judicialdiscretion toexcludeany
(24) Recommendations
21, 22, 23, 32, 33, 34, 35, 36, 38, 40and44
as dealtwithin Action tobe Takenetc.
(25)Until 1976, the 1918EnglishRules applied. Sincethen, the1964
Rules haveapplied.
(26) Accordingto the DiplockReport,the Ruleswere rigidlyapplied
as if theywereastatutebyNorthernIreland judges: Cmnd. 5185,
para.83.
- 233 -
statementevenifitislegally admissibleif itisunfairlyprejudicial
to the accused. TheDiplockCommitteeconsideredthat thepracticeof
theNorthernIrelandCourtswas "hamperingthe courseof justiceinthe
case ofterroristcrimesand compellingthe authoritiesresponsiblefor
publicorderand safetytoresort to detentioninasignificantnumber
ofcaseswhich couldotherwisebe dealtwithbotheffectivelyand fairly
by trialin acourtof law." (27).
Onthe DiplockCommittee'srecommendation,whatisnowsection
8ofNIEPA 1978,providedthatinthe case ofscheduledoffencestried
on indictmentanystatementmadeby the accusedmay be giverin evidence
by thepiose,;utionsofar as it isrelevantand is not excluded. The
provisiongoverningexclusionissection8(2), which isas follows:
"If, inany suchproceedingswhere theprosecutionproposes
togive inevidence astatementmadebythe accused,prima
facieevidenceisadduced that theaccusedwassubjectedto
tortureor toinhumanor degradingtreatmentinorderto
inducehimto makethestatement, the courtshall,unless the
prosecutionsatisfiesit that the statementwas notso obtained-
(a)exclude the statement,or
(b)if thestatementhas beenreceivedinevidence,
either-
(i) continuethe trialdisregardingthe statement;
or (ii)directthat the trialshall berestarted
beforeadifferentlyconstituted court (beforewhich
the statementinquestionshall L2 inadmissible)."
TheDiplockReportsuggestedthattheir recommendationwould leave
as thebasis forexclusionsubjectionofthe accusedto torture or to in-
humanordegradingtreatmentinorder toinducemakingofthestatement
(28). Although thenewsectionrenderedmuch admissiblethatpreviously
(27) Cmnd. 5185,para.87. TheNorthernIreland judgeshadheldthat,
evenwhere therewas no violence,if the interrogationset up
wereorganised andoperatedtoobtaininformationfrompersons
whowouldotherwisehavebeenunwillingto giveit, i.e. thecir-
cumstances inwhichthe accusedwasdetainedweresuchas tosap
his will, the set-tipwas oppressive and statements couldnot be
regardedas voluntary. See R.v.Gargan,10 May1972; R.v.Flynn
and Leonard,24 May 1972; and R.v.Clarke, 23 November1972.
These cases arediscussedbyD.S.Greer, "AdmissibilityofCon-
fessionsand the CommonLawinTimes of Emergency", (1973) 24
N.I.L.Q.199. InApril 1973, theAttorney-GeneralinformedParlia-
mentthat in theprecedingyearconfessionshadbeenexcludedin
21 cases and in55 casesanolleprosequihad beenissued because
ofthe inadmissibilityofconfessions: H.C.Deb.vol.855 c.388.
(28) See theGardinerReport,Cmnd. 5847, para.48, quotingthe Diplock
Report,paras. 98-90.
- 234 -
mustnave been excluded (thereno longerbeing anyneedto satisfy the
judge thatthe statementwasvoluntaryaccordingto the technical common
lawrules)Lowry L.C.J. ruled that:
"there is always adiscretion,unlessit is expresslyremoved,
toexclude anyadmissibleevidenceonthe ground that (by
reasonof any givencircumstances)its prejudicialeffectout-
weighsitsprobativevalueand that to admit the evidencewould
not be in the interestsof the public." (29).
Furthermore,the SupremeCourt laterruledthat the requirement
that the prosecution "satisfies it" thaz the statementwas notobtained
by theprohibitedmethodsmeant that therewas aburdenof proof resting
on theprosecutionwhichhad to be dischargedbeyond reasonabledoubt (30).
Thecircumstances inwhich the discretion to exclude shouldbe
exercisedwere indicated byMcGonigalL.J.in R.v.McCormickandOthers
(31). He said:
"It shouldonly beexercised insuch caseswhere failure to
exercise it mightcreate injusticebyadmittingastatement
whichthoughadmissible underthe sectionand relevantonits
facewas in itself,and Iunderline the words, suspectbyreason
ofthe methodby which it wasobtained,and bythat Ido notmean
only amethoddesignedand adopted for thepurpose ofobtaining
it, but amethod as aresultof whichitwas obtained.
This wouldrequire considerationnot onlyuf the conduct
itselfbut also, andsince the effectof any conduct
varies according to the individualreceiving it, possibly
equally important itseffect onthe individualand whether,
touse the wordsof theCommissionReportalreadyreferred
to, the maltreatment wassuchas to drive the individual
to actagainsthis willorconscience. It iswithin these
guidelines thatitappears tome the judicialdiscretion
shouldbe exercisedin cases ofphysicalmaltreatment."
On this basis some rough treatmentbut notdeliberatemal-
treatment,seems permissible. Thus someroughness, apartfromablow
whichproducedableedingnose, wasoverlooked forpurposesof
exercising the discretion.
setout atestwhichis
moregeneral. If not satisfied that thestatementwasvoluntary,orif
not satisfied that theaccusedpersonhadnotbeendrivenby the con-
ditionsandcircumstancesunderwhichthe statementwasmadeto act
againsthis willor conscience, then thecourt shouldexercise thedis-
cretion. Reliance wasplaced onthe meaningattachedby the European
However,inR.v.Milne (32) the court
(29) R.v.Corey andOthers, 6December1973. See alsoR.v.Tohill,
6March1974, perKellyJ.discussedin (1974)25 N.I.L.Q. 180,352.
(30)R.v.HetheringtonandOthers (1975)N.I. 164.
(31) (1977)N.I. 105.
(32) (1978)N.I. 110.
- 235 -
Commissionon HumanRights to "willandconscience"
whendealingwith
voluntariness,
and alsoon the word"may"in section 8in relation to
a statement being given in evidence. Accordingly,
when a suspect had
beeninterrogated
for39 of the 72hours he had beenin custody and
there was evidence that he was confused before making a confession of
murder, this confession wasexcluded, althoughconfessions
inrespect
ofother offencesmade before this stagewere not excluded.
Generally speaking,however, as JudgeBennettobserved,there
arenoclear rules as to when judges will exclude astatement.
Inthe
circumstances,
there is acleardanger that this becomes apurelysub-
jectivedecision- in any case, it is adecisionwhich is neithersubject
to strictsubstantive
legal rulesnorto close supervisiononappeal.
It may be recalled thatmany "discreditable
and reprehensible"
practices, used as partofinterrogation
in 1971, wereheldby the
EuropeanCorcissionof Human Rightsnot to constitute torture, inhuman
or degradingtreatment: statementsobtainedas aresult ofsuch tech-
niques are not automatically
excluded asevidence.
In the absenceof ajury as aseparatetribunalof fact the
change in the law in admissibility
ofconfessions
has tendedto intro-
duce anexcessively largesubjectiveelement in theeffectivedecision
onquilt or innocence of the accused. "Case-hardening"
of judges has
consequently
led to an increase in the convictionrate incontested
cases in which theonlyevidence consistsofaconfessionallegedly
obtainedunderduress. Increasingly,
the courts have convicted on the
basisof allegedverbalconfessions
whichthe accuseddenies ever
havingmade.
Strictlegal rules for the presentation
ofevidence to the
jury, and for its assessmentby the jury,havethus beenreplaced
by avirtuallyunfettered discretion byasinglejudge. In this crucial
respect, therefore, the relaxationof the lawof evidence,corresponding
withan increase injudicialdiscretion to admitconfession staLements,
has no doubtincreasedthe numberofconvictions
ofguiltypersons,but
it has alsoincreasedthe riskofunjustconvictions.
Convicted Prisoners
In June1972, in the faceof ahungerstrike, theHeathGovern-
ment had introduced "special category"status forprisonersinvolvedwith
para-military
organisations.
Realising that thishadbeenapolitical
errorand aformofdiscrimination
againstordinarycriminals, the Wilson
administration
beganfrom1March 1976 to phaseout the status. No further
grants of such"specialcategory"status weretobe made toprisoners who
had committedoffences onor afterthatdate. Finally, inMarch 1980, the
ThatcherGovernmentcommenced the abolitionofthe status for alloffenders.
In themeanwhile,in responseto the phasing-out,
anincreasingly
unpleasant
campaign involving self-denial
of facilitiesfor personal hygieneand total
refusal to observePrisonRulesorto cooperatewith ;-he authoritiesat the
Maze Prison,was carriedout by somepersons convictecof terroristoffences
committedafter 1March 1976 on the grounds thatitwas contraryto their
freedomofconscience to be treatedas ordinarycriminalsand not as
politicalprisoners.
(Simultaneously,
the I.R.A.mounted anassassination
campaignaimed atprisonofficers and the R.U.C.) After aninitialperiod
- 236 -
of tolerance, the prison authorities responded with what the European
Commission of Human Rights later termed as "inflexibility". This led to
or was used as an excuse for the escalation by the prisoners of their cam-
paign so that authorities and prisoners were locked into a vicious cycle of
defiance and self-degradat ion by prisoners, punishment and denial of
facilities, this then stimulating the prisoners into yet further obstinate
acts of self-degradation. A comp)aint by leading "protesters;" to the
European Commission of Human Rights, alleginig inhuman in(d degradinq punish-
ment and treatment and breach of various other Articles of the -ovention,
was declared inadmissible except on two issues (33) . The first was whether
adequate nationail remedies were available to prisoners. It involved complex
analysis of the scope of judicial i-eview of administrativeaction, i.e.
whether it could provide a remedy against bad as opposed to serely unlawful
decisions. The second raised the general Home Office policy of interference
with prisoners' correspondence, and was to be considered in conjunction with
other cases arising elsewhe re in the United Kingdom.
However, when in 1981 the situation escalated further as a result
of a number of orchestrated hunger strikes, interventions were tnade by
the European Ccrission on Human Rights, the fnternational Comnission of
the Red Cross and the (Poman Catholic) Irish Comission for Justice and
Peace. This finally led to a situation in which the prisoners, without
relinquishing their claim for special treatment in principle, ended their
hunger strike and other self-degrading forms of protest, and in which the
authorities imposed punishments inore flexibly and with less harshness.
Other Areas of Complaint
There have been other areas of complaint with regard to the
practice of the police and the army, most notably an apparent policy by
the Army in 1978 to lay ambushes for suspected terrorists with a view
to shooting dead those who did not immediately give themselves up
(described by Boyle et al in "Ten Years on in Northern Ireland").
Thepowersofthe authorities to "exclude"persons fromparts
of the United Kingdom without judicial author-.ty has also been
strongly criticised.
Therehave alsobeen criticismsof "flexible lawenforcement"
as athreat to theRuleofLaw. ColonelEvelegh,as aserving officer
in Northern Ireland,has stated thatsince the extentto whichthe law
would beenforced inorder to show "restraint",or "politicalsensitivity"
or to "winhearts andminds"or to keepa"lowprofile" hadbecome
uncertain to both lawbreakers and law enforcers,both sidesdrewcon-
clusionswhichled to the collapse ofthe general frameworkofconstitution-
al legality. The peopleof NorthernIreland,of all sections, concluded
that lawenforcementwas subjectto politicaldirection, and thatpressire
onpoliticiansby riots,demonstrations anduniformedmarcheswould (and
did) lead to concessions. The Army and R.U.C.concluded that theycould
notbesure of support from theirprofessionalorpoliticalsuperiors
if theyenforced the law impartially. Thytended to reflect the day-to-
dayattitudesof Ministers, sometimesexceedingthe law (asincase of
interrogation in depth,but this wasMinisteriallyauthorised)andsome-
(33) McFeeleyetal. v.The UnitedKingdom,Application8317/78.
- 237 -
timespassively
watching
intimidation,
large-scale
sectarian
eviction
ofpersons
fromtheirhomes,
and countenancing
no-go areas andusurpation
of government
functions
including
even themaintena-nceof
order (34).
Not only did troops
come to termswithpara-militaries
toavoid aclash,
but the Northern
Ireland
Office
would be secretly
negotiating
with the
terrorists
and following
adifferent
policy
from thatoftheArmy (35).
There wereareas where the terrorists
werepermitted
to holdsway
(Catholic
areasbefore
Operation
Motorman,
31August
1972) while
Protestant
area;of
East Belfast
were permitted
inOctober
1972 to be
underU.D.*:.
control,
and even peace-keeping
operations
weredelegated
this para-military
organisation.
to
The mostserious
abdication
of
lawenforcement
came, onMinisterial
instructions,
inMay1974, whenthe
Armyand R.U.C.
stoodby and the UlsterWorkers'
Council
strikers
took
over the regulation
of essential
services,
control
of transport
and
traffic
and issued "ration
cards"
for essential
goods.
Thepolicy
of
Ministers
meant that therewas abreakdown
in theRule of Lawin that
therewas no consistency
orcertainty
that lawwouldbe regularly
enforced.
Administrative
I..tLnmhlii
The practice
ofadministrative
internment
hadsince its inception
beer asubject
of constant
criticism
and complaint.
As amethod
of
controlling
orreducing
violence
it had proved
afailure.
It probably
served
more than any other
measure
to increase
recruiting
intothe I.R.A.
Thepowerto intern
administratively
is nowcontained
in Section
12
and Schedule
Ito theNIEPA 1978.
This requires
renewal
annually
byParlia-
ment.
InJuly 1980,whenit was due for renewal,
the British
Government
decided,
inthe light of the high conviction
rate of terrorists
inthe
Special
("Diplock")
Courts,
it was nolonger necessary
to haverecourse
administrative
internment.
to
Consequently,
theprocedure
was allowed
to
lapseandno further
internments
have takenplace since then. It can,how-
eve.,be renewed
at any timewiththeagreement
ofParliament.
In urgent
cases,
the Secretary
of State can introduce
it at once by making
anOrder,
but itwill lapse after 100 days if not approved
byboth Houses
ofParliament
by then (36).
(34) R.Evelegh,
Peace Keeping
in aDemocratic
Society,
C.Hurst,
London,
1978, pp. 22-23,
33, 37, and 49-50.
Colonel
Evelegh
wrote:
"Ihad greatsympathy
with the disaffected
section
of the
population
... They never knewwhere theystood.
One illegal
procession
wouldbe allowed,
and the next weekfirmly suppressed.",
Offences
were openly
condoned
andpersons
had noidea whenaturn
of thelawenforcement
pressure
valve wouldmeanthat condon-
ationhad ceased.
See alsoIreland
v.United
Kingdom,
para.
51-52.
(35) Ibid., p. 113.
(36) NIEPA1978,Section
32 (4)andSection
33 (3)(a).
- 238 -
III. REVIEWOFTHEEMERGENCYANDEMERGENCYMEASURES
Thereare various judicial, legislative,political andad-
ministrativecontrol mechanismsdesigned to ensure thatthepowers
exercisable by lawenforcementagencies arenot abused. Themost
importantof thesewillbe briefly consideredhere.
JudicialReview
Aparticular,central, feature of the (unwritten)British
Constitution is the concept of "sovereigntyof Parliament", by which
is meant thatAct.: of Parliament (Statutes)areunchallengeableby
otherauthorities, in particular, the courts. This applies toActs
affecting fundamental rights asmuch as the other legislation: the
courts (representingthe King) are not guardiansof constitutionally
enshrinedfundamental rights and cannot"defeatthewill of Parliament"
as expressed in formal legislation. Consequently, thecourts can
neither reviewwhether an emergencyproclaimed by Parliamentin fact
exists, not assess the proprietyof legislativerestrictions offunda-
mental rights. Onlywithinthe leqislativeframeworkdo the courts
have the possibility to reviewexecutiveaction. Thus, power of review
willarisewhen astatutorypower has been exercisedultra viresor in
amannerwhich is in breachofrules of natural justice. Proceedings
may hebrought against unlawfulaction,e.g. by way ofhabeascorpus
where the legality of anarrestis challenged. Atcommonlaw coo, the
rulesof natural justicecanbe enforced. TheEuropean Courtof Human
Rights has accepted that the reviewexercisedby the courts, although
limited, is "valuable".
At the same time, it must be noted that in times of emergency
the English andNorthernIrish courts have tended to be deferential to
theExecutive (37), refusing to interpret emergency legislationin a
manneras far as possible consistentwith fundamentalhumanrights.
Mentionhas alreadybeenmade of the refusalof the court- inNorthern
Ireland to provideremediesagainstjustified grievancesof discrimina-
tionand abuseof state power (see Boyleet al, Law andState: aCase-
study ofNorthernIreland). In the RepublicanClubs Case, for instance,
the courtsupheld aRegulationmadeunder theSpecial PowersActwhich
declared suchclubs unlawfulirrespectiveof any proofof theirinvolve-
mentincriminal or subversiveaction. It is significant that inthe
caseofMartinLynch, the courtreferred to case-lawdatingfromthe
SecondWorldWar (aswell as to a17th centurycase) in whichit was
held that, where emergency legislationconfers on"anexecutiveauthority
thedecisionofwhat isnecessaryorexpedientand thatauthoritymakes
thedecision, " isnotcompetentto the courts to investigatethe
groundsorthe reasonablenessofthe decisionsin theabsence ofan
allegationof bad faith." (38).
By accepting,in the caseof MartinLynch,thelegalityof
(37) SeeDavidR.Lowry, Terrorismand HumanRights: Counter-insurgency
and NecessityatCommonLaw,N8treDameLawyer, October 1977,p. 49.
(38) Carltona (1943) 2All ER560.
- 239 -
repeatedarrestsinquicksuccession of the same personon the samesus-
picion, the courts made illusory such time limits on detention as are
contained in the law. (A different approach was taken in the Republic of
Ireland where such arrests were held to be unconstitutional,
but the court
in Northern Ireland refused to follow this approach on the basis that the
existence of a written constitution
altered the legal situation.) An
interpretation
of the law which would have limited the legality of detenti
strictly to the time limits laid down in the statute would have demonstrat(
to the public that "amid the clash of arms, the laws are not silent" (from
Lord Atkin's dissuriting judgment in Liversidge v. Anderson).
In the pres-
ent circumstances,
rulings such as Lynch, or such as the Republican Clubs
Case before it, tend to undermine what confidence the minority population
have in the Rule of Law.
As far as recourse to civil or criminal litigation is concerned,
the first is too slow a process to provide an effective deterrent ag&inst
irregular behaviour, whereas the second has been shown to be equally in-
effective: no policeman was convicted of assault following the practice of
ill-treatment
in 197t and 1977, and prosecutions
of soldiers in cases of
apparentexcessive
use of firearms have also been unsuccessful.
As was further discussed above, tue indirect means of control
exercised by the courts in ruling on the "admfssibility"
of confessions
has been explicitly reduced by the emergency legislation
- although to a
limited extent the exercise by the courts of a "residual discretion" to
exclude statements has countered this.
LegislativeControl
The durationof theemergencylegislationis limited andsubject
to expiry unless renewed by order of the Secretary of State (39). An
Ordermaycontinue in force for aperiodnot exceeding6monthsand is
renewable. The Order must either have been approved in draft by resolution
ofeachhouse of Parliament or it mustcontain adeclarationthat it
appears to the Secretaryof State thatby reasonofurgencyit is nec-
essary to make the Order without prior approval of a draft. In the latter
event, the "urgent" Order shall be laid before Parliament and shall cease
tohaveeffect if at theend of 40 days after its makingithas not been
approved by resolutions of each House. This means that both Houses of
Parliamentwill be guaranteedperiodicdebates about thesituation in
Northern Ireland, and may, if either House thinks fit, deny the executive
the considerable
powers conferred by the Acts.
Thisprocedure, however, has its limitations.
Verylimited time
is available for debate and the "bi-partisan"
approach to the situation
in Northern Ireland has tended to take the edge off parliamentary
scrutinyof the way in which the legislation is implemented,
at leastin
the course of public debate in Parliament.
There are alsootheropportunities
for debatingorsecuring
informationabout the emergency inNorthern Ireland in Parliament.
That
most invokedis the questionprocedure. Numerousquestionshavebeen
(39) Cf. for example,Sections 32 and 33 ofNIEPA 1978.
- 240-
asked about the employment of the Army and the exercise of police
powers. Unfortunately, the data obtained does not give a comprehensive
picture, partly because Ministers have refused to answer questions and
partly because M.P.s have failed to ask appropriate questions. The
significance of question-time lies more in the fact that those exercising
power know that they may face embarrassing questions, and therefore tend
to exercise restraint, than it does in ability to stop a particular
abuse.
C'ontrol by the Executive
Although potentially the most effective means of control,
internal administrative supervision of executive power provides only
limited protection against abuse. Placing important powers of decision
affecting the civil rights of citizens in the hands of senior officers
of the state rather than at a low level can piovide institutional safe-
g lais ibuse, diligence is exercised. For instance, a!inst if the
dcision to prolong police detention beyond 48 hours under the Prevention
of Terrorism Act lies with the Secretary of State for Northern Ireland.
However , it appears that initially all requests by the police for such
extensions are irnted. The fact that the decision to use inhuman and
de(rading treatment in the course of interrogation in 1971 was taken at
a "ver% high level", ind that i widespread practice of ill-treatment
occurred in 1976 and 1977, raises doubts about the effectiveness of
internal mechanisms as safeguards against abuse.
More formal internal mechanisms for control can be more
effective, but the machinery for the investigation of complaints against
the police (the most important of such mechanisms) has failed to prevent,
or even to punish, ill-treatment of suspects in custody.
More important than such strictly internal mechanisms have been
standing or ad hoc commissions for monitoring or investigating security
practices. The Standing Advisory Commission on Human Rights, for
instance, has made valuable contributions to the debate on emergency
measures. Official commissions of inquiry have established abuses
(beit ex post facto) and have contributed significantly to changes in
policyand procedures. For instance,publicinquiriesinvestigated
and brought to light the grievances of the minority community which led
to the emergency, "interrogation in depth" with the use of the "five
techniques", internment,and, most recently,interrogationpracticesby
theR.U.C. All these inquiries have led to re-considerationofemer-
gencymeasures and securitypolicy.
On theother hand, someaspects ofthe emergencylegislation
havenot beensubject to such scrutinyfor alongtime, inparticular
theoperationof theSpecialCourts, which was lastreviewedin full in
1974.
EuropeanCommissionand Courtof HumanRights
TheUnited Kingdomhad undertakento secure to everyonewithin
its jurisdiction the rights andfreedoms guaranteedunder the European
Conventiononthe ProtectionofHumanRights andFundamentalFreedoms
with itsaccession to the Convention in 1950. It is providedthat
either the Governmentof another stateparty to theConventionoran
aggrieved individual mayapply to the organsestablishedbythe Con-
ventionallegingbreachofthe Convention.
- 241-
Article 15 (1)provides that "in timeofwarorotherpublic
emergencythreatening the lifeof the nationany HighContractingParty
may takemeasuresderogatingfromits obligationsunder this Convention
tothe extentstrictlyrequiredbythe exigencies ofthesituationpro-
vided that suchmeasuresare not inconsistentwithitsotherobligations
under international law". Certainprovisions are non-derogable,e.g.
Article 2(rightto life), Article 3(prohibitionoftorture or inhuman
ordegradingtreatment), Article 7(non-retroactivityof criminal
offences).
Inaccordance withArticle15 (3)of theConvention,theUnited
KingdomGovernmentsentto the Secretary-Generalof theCouncilof Europe,
bothbeforeand after the originalapplicationto theCommission,six
noticesofderogation. Thesenotices weredated27June 1957, 25
September 1969,20August 1971, 23 January 1973, 16August1973 and 19
September 1975, anddrewattentionto the relevantlegislation.
Severalcases regardingNorthernIreland have been broughtbefore
theEuropeanCommission and the EuropeanCourt of HumanRights dealing
withdenialofcertainrightssetout in the EuropeanConvention. In
1971, the Governmentof the Republicof Ireland broughtanapplication
againstthe Covernmentof theUnitedKingdom. Its stated objectwasto
ensure thattherespondentGovernmentwould assure toeveryone inNorthern
Irelandthe rightsand freedomsdefined invarious Articlesof the Con-
vention,to determine the compatibilitywith the Conventionof certain
legislativemeasuresandadministrativepracticesofthe respondentGovern-
mentinNorthernIreland, and to ensure theobservanceundertakenby the
respondentGovernment in the Convention.
An important issue in this casewas the useof sensory depriva-
tiontechniques (theso-called "five techniques")and ofphysical ill-
treatmentandexhaustion as partofinterrogation,whichhasbeendiscussed
above.
On 9August1971, numerouspersonswere arrestedby the security
forcesunder theemergency regulations. Inall, about3,276persons
were processedby the security forcesat variousholdingcentres,police
officesand barracksin order todeterminewhether theyshould beinterned
and/or to compile informationabout theI.R.A. Allegations ofill-treatment
in 228 cases concerningincidents between9August1971 and 1974weremade
bythe IrishGovernmentin relationbothto theindividual arrestsand to
the subsequentinterrogations. Interalia, allegedviolationsofArticle3
(prohibitionagainsttortureor inhumanor degrading treatment), Article5
(deprivationof libertyonlyunderprocedureprescribedby law)and
Article14 (enjoymentof freedoms andrights guaranteedby the Convention
withoutdiscrimination)wereexaminedby boththe Commissionandthe Court
of FumanRights.
Boththe Courtand theCommissionwereofthe opinionthat
thereexisted an"emergencythreateningthe life of thenation". This
wasnotcontested bythe applicantGovernmentbut itsubmitted
thatthe rightof derogationexercisedbythe UnitedKingdomGovern-
menthadexceededthe "extentstrictlyrequired", and that therehadbeen
violations ofnon-derogablerights. The Courtand theCommissionfound
thatthe UnitedKingdomGovernment wasnotin breachof theConventionby
havingintroducedextra-judicialdeprivationoflibertyunderits
- 242 -
internmentpolicy. TheCourtrecognisedthat:
"Unquestionably,the exerciseofthe specialpowers
wasmainly, andbefore 5February 1973 evenexclusively,
directed againstthe I.R.A.as anundergroundmilitary
force. The intentionwas to combatan organisation
which hadplayedaconsiderablesubversive r61e throughout
the recenthistory ofIrelandand whichwas creating, in
August1971 and thereafter,aparticularlyfar-reachingand
acutedangerfor -heterritorialintegrityof theUnited
Kingdom,the institutions of the sixcountiesand the lives
of the provinces' inhabitants. Being confrontedwitha
massivewave ofviolence and intimidation,the Northern
IrelandGovernmentand then, after the introductionof
direct rule (30March 1972), the BritishGovernment were
reasonably entitledto considerthat normal legislation
offered insufficientresources for the campaignagainst
terrorismand thatrecourse tomeasuresoutsidethe scope
ofthe ordinarylaw, in the shapeofextra-judicial
deprivationof liberty,was calledfor." (40).
Asafeguardagainst ill-treatment is providedL'Article3of
theConventionwhichprohibits in absoluteterms torture and inhumanor
degradingtreatmentor punishment, irrespective of the victim'sconduct.
Unlikemostof thesubstantiveclauses ofthe Conventionand ofthe
Protocols,Article 3makesnoprovisionfor exceptions and, under
Article 15 (2), therecan be noderogationtherefromeven in theevent
of apublic emergency threateningthe lifeof thenation.
Ashas alreadybeenstated, the Court heldunanimously that
the security forceshad used the "five techniques"on14 personsin
certaindetentioncentres in1971. Theyfound theuse of these "five
techniques"constituted apracticeof inhumananddegradingtreatment
in breach ofArticle3of the Convention.
TheCommissiondecidedat the admissibilitystagethat the
rule requiring priorexhaustionofdomestic remediesin Article 26of
the Conventionwasinapplicable where an"administrativepractice"con-
sistingof repetitionof acts and official tolerancehas beenshown to
exist,and is ofsuchanature as tomakecourtproceedings futileor
ineffective. The level of tolerancehere wasdecisivefordetermining
thisquestionin the circumstancesof aparticularcase (41). The
Courtagreedwith theopinionof theCommissionon the issue,and noted
that this decisionof the Commissionwasnotcontestedby theUnited
KingdomGovernment (42).
Anotherargumentrejectedby theCommissionand theCourtwas
that the UnitedKingdomGovernmenthad shortly after the filingofthe
(40) Irelandv.UnitedKingdom,judgmentof theCourt,para.212.
(41) Reportofthe Commission,pp.379-388.
(42) Reportof theCourt,p.55.
- 243 -
application
by the Government
of Ireland,and independently
of them,
prohibited
the use of 'ie"five techniques".
The Court noted that the
United Kingdom had taken various measures designed to prevent the re-
currence of the events complained
of and to afford reparation for their
consequences.
Iowever, the Court considered that the responsibilities
assigned to it within the framework of the system under the Convention
extend to pronouncing
on the non-contested
allegations
of violation of
Article3. Phe reason for this was that the Court's judgments serve
not only to decide those cases brought before the Court but, more
generally,
to elucidate,safeguard anddevelop the rules instituted
by the Convention,
thereby contributing
to the observance
by the States
of the engagements
undertaken
by them as Contracting
Parties (Article 19).
As has already been mentioned,
the (partial) decision of the
Commission
in McFeeleyv.UnitedKingdomhad an important impactonthe
situationin TheMazePrison,in that itpromptedmore flexibility
on
thepartof the authorities
inresponding
to theprisonprotest.
IV. CONCLUSIONS
The present emergencyinNorthernIrelandraises complex
issues ofself-determination,
protection
ofminorities,
majority rule,
consensusand the legitimacy
ofstatepower,whichcan onlybe solved
in the longtermat the politicallevel. However,emergencylegis-
lationand theway itis implemented,
as well as socialand political
reformand thespeed and determination
withwhichthey are introduced,
all bearon the climate inwhichasolutionmaybe found.
Successive
British Governments
bearaheavyresponsibility
for havingbrought intoexistenceaProvinceof NorthernIrelandwhich
contained the seedsofits self-destruction,
and for failingto take
effectiveaction topersuadeorcompel theprotectedmajoritygovern-
ments of theProvince tostop theirmassivediscrimination
againstthe
Catholicminorityuntil thatminoritywas driventosupport its violent
extremists
andmake the Province as constituted
patentlyungovernable.
When the BritishGovernment
and Parliament
resumeddirect
responsibility
for adirectgoverningof the Province, theyacted with
commendable
energyto introduce long-needed
reforms. Radical changes
weremadein the structureof local government
in the Province:
universalsuffragewas introduced in 1969, proportional
representation
in 1972, local governmentboundaries
wererevised in 1973, and many
important functions such aseducation andhousingwere transferred
to
specialarea boardsorto centralgovernmentbodies in the hope of
endingor reducingthe fearof discrimination
in thesocial field. In
1969, theNorthern IrelandGovernmentestablished
aParliamentary
Commissioner
(i.e.Ombudsman)
for Administration
andaCommissioner
for
Complaints.
TheStanding AdvisoryCommitteeonHuman Rightsbeganin
adetailedstudyof the extent towhich theexisting legislation
provides asufficient
protection forhumanrights inthe sixcounties.
Legislation
makingdiscrimination
unlawfulintheprivatesectorwas
introduced i.1976.
1975
- 244 -
Unfortunately,thesereforms were introducedtoo late tostop
the vicious cycle ofviolence and counter-violence. All the efforts
of the United Kingdom Government to find acceptable political solutions
have failed to overcome the pervading disunity fanned by the continuing
violence.
In theso circumstances, the British have had to continue to
resort to emergency pcwers in order to contain the violence and main-
tain a sod icue of order. The use of these powers, and the abuses to
which they give rice, have been meticulously examined by ' series of
of1 1 'omni a ors and inquities, and action has been taken to give
'A lcttotheir r,ommendations.
Unto ti tel , the exsrci ]oif emergency powers does not bear
olely ipo thnose whose resort to violence has given rise to the
emeq mc,'/. All soctors of thepoulation are aff o-ted to a greater
(r lesse degree, and any abuse or excessiveuso of emerge ncy powers
'..'Ii help to build t) a%,allof resentmentwhichmakes ev n more
difficult the firding of a poilitical solution. in policy, therefore,
as well as in international law, the use of such powers should be
onifined to mea'sures 'strictly required by the exigoncies of the
situat ion' .
British governments have made real and sometimes remarkable efforts
to restrict their emergencies measures in this way. Perhaps the most strik-
ing was the decision to do away with administrative or extra-judicial intern-
ment, known to English lawyers as 'preventive detention'. In almost all
serious emergency situatLons throughout the world, administrative internment
is widely used to detain without charge or trial large numbers of persons
suspected of beinq engaged in subversive activities. Theprocedure is
often used to intern persons against whom the authorities have considerable
evidence coming from confidential sources which they cannot bring to court.
In other countrieo, is to to confessions, or
resort had torture extract true
false, with which they can secure convictions.
The orice which had to be paid to enable administrative internment
to be abandoned in Northern Irelandwas aheavy one,and fellupon the
judicial system. In accordance withthe recommendationsoftheDiplock
Committee, theEnglish lawsofevidenceconcerningthe admissibilityof
confessionstatements were relaxed so a,to make iteasierforthe single
judge of theSpecial Courts to convicton the basis ofconfessionswhich
would not be admissible in advisorycourts. The declared intention was to
makeit easierto secureaconviction. With such apressureuponthem,
it is not surprising thatmany of these judges are accused ofbecoming"case-
hardened". It is questionablewhether it is proper in these circumstances
to leavethe determinationof the issueof guiltto asingle judge. A
personon trialwho is at riskfor alongterm of imprisonmentcan legitimately
expectthat if he is not to have the benefit of a jury trial, he should
at leasthave apluralityof judges. In almost any othersystemof law, he
wouldbe triedby abenchof at leastthree judges.
Other criticisms of the justice systeminNorthernIrelandfocus
upon the issueof judicialreiiew. Severalof the complaints madearise
frompeculiarities ofthe common lawsystem.
- 245-
Thus, therighttosee alawyerbefore answeringquestions
afterarrestis left,under the commonlaw,in astate o- suchuncer-
taintyas to makeitalmost non-existent.
Underothersystems,it is
clearlydefined. Whenthe suspectdoeshaveaccess to alawyer,there
is noquick effectivewaybywhichhecan bringto theattentionofa
courtacomplaintof ill-treatment.
The remedyofhabeascorpuswill
goonly tothe issue ofthelegality ofhisdetention,nottotheway
inwhichhe was treated.
Whencomplainants seekunderprocedures forjudicial review
topersuadecourtsto declareexecutiveactsillegal,theyare confronted
byajudiciarydominated in its thinkingbythe narrowdoctrineof
parliamentary
supremacy.
Unlike theirbrethrenin othercountries, they
haveno constitutional
declarationofprinciplesby whichto judgethe
proprietyofexecutiveacts. Inconsequence,
iftheyfindno law
clearlyforbiddingthe act of theexecutivein question,theyare
likelytofind for the executive. An extreme caseinNorthernIreland
hasbeen the decisionwhichenables the securityauthoritesto circum-
ventthe statutorylimitsofdetentionby repeatedarrestsinquick
succession.
Thishas'ledto abuses such aswidespreadarrestspurely
forpurposes ofinformationgathering. Thisprocessis butacontinua-
tionofadefect inthe justice systemwhichfailedto provideremedies
againstwholesalediscrimination
inNorthernIrelandand thiscontributed
indirectlybut substantially
to theexistenceofthe emergency. It is
not surprisinginconsequence
that the judiciary haveacquiredthe
reputationofshowing excessivedeferenceto theexecutive.
These failings in the justice systemhave nothelped to
establishrespectfor the Ruleof Law, anessentialelementinestablish-
ingaclimatefor apeaceful settlementinNorthernIreland.
The lessons that canbe learnedfromtheexperiencein
NorthernIreland, fromaninternational
perspective,
are thatemer-
gency legislation shouldbe introducedand operatedwith thegreatest
restraintpossibleand thatmeasurestakento countercivil unrest
mustbe, andbeseento be, limitedto whatis strictlyrequiredin
the exigenciesof the situation,in accordancewithinternational
law.
If emergencypowersare grantedto theExecutive and thepolice,
then thesepowersshouldbe subjectto,if anything,strictercontrols
toensurethat they areusedonly for thepurpose forwhichtheywere
introduced.
Action takenby the Executiveand thepolicewhichimpinges
onhumanrights shouldnot beexcludedfromjudicial reviewand control.
On the contrary,the courts shouldbe empoweredto reviewbothlegis-
lative andexecutiveactsin the lightof establishedlegalprinciples.
Emergencypowersshould respecthumanrightsto themaximumextent
possible in the circum;tances.
and the questionofwhatconstitutes
"themaximumextentpossible".snot one whichshouldbe removed
fromthesphere ofthe judiciarY.
Furthermore,
in the caseof aprolongedemergency, regular
and independentreviewof legislationatall levelsis requiredtopre-
ventemergencylegislation
frombecomingasemi-permanent
feature of
the law. Formalopportunities
fordebateinParliament,
and forques-
tions to beput toMinisters, thoughvaluable,donotsuffice: fromtime
- 246 -
totime extensive, in-depth,reviewsofall aspectsof the emergency
legislationshouldbecarriedout byan impartialbody,withthe
possibility for non-governmentalorganisations andinterestgroups to
make representation. Suchcommissionsof enquiryhave madeasignifi-
cantcontribution to thereformofemergency legislation inNorthern
Ireland.
On specificmatters, safeguardsagainsttorture, inhumanor
degradingtreatmentgenerally, and againstimproperinterrogation
techniques in particular, are required. Theseought to include pro-
ceduraland evidentiary safeguardsagainst convictionsbeingbasedon
confessionsobtainedunderduress. Medical examinations, butabove
all access to alawyer,is required, as isimmediate accessto the
courtsto haveboth the legalityofdetention, andmethods ofinter-
rogation,testedcontempnmrneously.
The freedomofthepressandthe activitiesofnon-governmental
organisations and interestgroups shouldbe left undisturbed, ifabuses
are to bebrought to light. Suchactivitieshave hadmanypositive
results inNorthernIreland.
Finally,acceptance bythe Governmentof thejurisdictionof
an international tribunal chargedwith ensuring theobservationof
fundamentalhuman rightsprovides animportantsafeguardwheredome'tic
remediesfail.
-0-0-0-
- 247 -
THESTATE OF EMERGENCYINPERU
CONTENTS
Page
I. STATESOFEXCEPTIONDURINGTHELAST50 YEARS
INPERU...............................................
250
The 1932 EmergencyActand Supp-ementary
Legislation (1932-1945)..................................
250
Internal SecurityAct (1949-1956) ........................
251
Other Legislation (1961-1963) ........................
252
TheGuerillas and the PopularMovement.................
253
The 1968Military ROgime and the Constitution......... 254
The 'Reorganisations'
and States ofEmergency ........ 253
Freedomof Expression....................................
257
II. SUSPENSIONOFCONSTITUTIONALSAFEGUARDS AND
DECLARATIONOFSTATES OFEMERGENCY INPERUVIANLAW ... 258
III. SAFEGUARDSFOR THEPROTECTIONOFRIGHTS BREACHED ..... 263
IV. THEEXTENSIONOFMILITARYJURISDICTION.................
266
Sabotageof AgrarianReform.............................
266
Sabotageof Telecommunications
and
ActsofPoliticalTerrorism.............................
267
Attacks InvolvingBombsor Explosives..................
267
ExtensionThroughJudicialDecisions...................
268
V. THENEWCONSTITUTIONAND HUMANRIGHTS..................
269
Judicial Remediesfor theProtectionof
These Rights.........................................
272
StatesofException......................................
272
ThePoliticalandEconomic Situations..................
273
VI. CONCLUDINGNOTE ......................................
274
-0-0-0-0-
- 249-
THESTATEOFEMERGENCYINPERU
Theexpression "stateofemergency" refers togeneralstatesof
exceptionwhich aredesignated undervaryingnames in the legislation
ofdifferentcountries. Suchgeneral statesofexceplionhavebeena
significant featureof recentPeruvianconstitutionalhistory. Onsome
occasions- the gravestones - legislationofgeneralscope hasbeen
enactedtodefineandgovern the stateof exception. Inothercircum-
stances,constitutionalprovisionsconcerning statesofexceptionhave
beeninvoked. Inathirdset of situations,certainarbitraryacts of
powerhave occurred,unsupportedby any legislativeprovisions.
Peruvianhistoryis rich in examplesof this latter type of
situation. Thestock responseof those inpower to socialcrisis has
beento set aside certainrightsand constitutionalguarantees. At
present,the country is underconstitutionalruleafter 12 yearsof
militarygovernment. Nothing,however,supports thesupposition that
there are satisfactoryconditionsofstabilityand democracy. Notonly
the weightofPeruvian historicaltraditionbut alsothe gravity ofthe
political, social andeconomiccrisiswhich thecountry is facing at
thepresent time, would lead one to expect thatPewstates ofexception
may be invoked inthe not toodistant future.
It is noteworthy thatin Peru the existenceof the institution
calledastate ofemergencyis relativelyrecent. The expression also
hasdifferentmeanings. One of thesesignifies an exceptionalsitua-
tion inageneralsense, covering allor partofthenational territory.
Another sense inwhichthe expression is usedis withrespectto the
proclamationof special "emergencies"indiverse sectorsof the economy.
Athirdmeaningconcernsnatural disasters (floods,drought,earthquakes,
etc.), the purpose insuch casesbeingnot somuch the limitationof
human rightsas the provisionofprioritymaterialand administrative
assistance to the affected zonesby the publicauthorities. Ofparticu-
lar interest forpresentpurposesare the first and secondsensesof
theexpression. Nevertheless,as indicated above,statesof exception
in Perubothantedateandgofar beyondthe strictmeaningofthe term
"state ofemergency". The complexfacetsof theseemergencies are the
subjectofthepresent study.
Thispaper consistsof six parts. The firstpartsetsouta
briefhistoricaloutlineofthe statesofexception thathaveoccurred
inPeruover the last 50years. It describesthe variousmeasures
whichhavebeenresorted to accordingtothe dictatesof the situation
at the time. The secondpartis an analysisof thetwo meansusually
usedtoproclaimstatesofexceptioninthe country- the suspensionof
constitutionalsafeguards and the proclamationof astateofemergency.
The thirdsectionconcernsthe remainingsafeguards withwhichthe
citizencan protecthis erodedrights, withparticular referencebothto
the 1933 Constitutionwiichremainedin force until28 July 1980,and
tothe new1979 Constitution,which thenreplacedit. Thefourthpart
dealswithasubjectof crucialsignificancewhenstatesofexception
are invoked - the application ofmilitaryjustice to civilians. As will
beseen in this context,the lastfewyearshavewitnessed adangerous
extensionofmilitaryjurisdictionoverthe civilianpopulation.
Thefifthpartexamines thenewconstitutioninrelationto statesof
exceptionandhumanrightsand thesixthparttakes theformofacon-
cludingnote.
- 25o-
I. STATES OFEXCEPTIONDURINGTHELAST50YEARS IN PERU
Repeatedmention ofthe modelof the liberalState, andofthe
collectionofconstitutional rightscorrelative to suchaState, at
everystage of preparationof eachnewPeruvianconstitutionhas not,
as arule, had any impacton the real life of the nation. Throughout
history,the gapbetween reality and the rightsformallygranted to the
population hasbeenaverywide one. Againstsuch abackground, the
operation of demcratics6,i 1in-titutionshas tendedto be super-
ficial andfleeting. Superficial, because the verystructureof
Peruvian societycovers such acute socialand economicdisparities
among its membersthat this in itself necessarilyresultsin the
restrictionofawhole seriesof rightsof thoseparts ofthe population
thatarc n,nericallypredominant, especially the indigenousrural
population. Fleeting,because the formal existenceof constitutional
r~gimes - withall their shortcomings- has frequently been flouted
by the exerciseof extra-constitutional formsof power.
Of the last 50years, touse arelativelyrecent time frame,
more than30 havepassed understates of exceptionor extra-
constitutional rule. The remainingyears witnessedcivilgovernments
that invokedmore or less frequently the "suspensionofsafeguards"
provisionsmade available to thembythe constitution. Abriefhis-
torical surveyof these lastfivedecadeswill give abetterunderstand-
ing of the subjectof the presentstudy.
The 1932 EmergencyActandSupplementaryLegislation (1932-1945)
TheEmergency Act,passed inJanuary1932, under the govern-
mentof President SanchezCerro,is an importantmilestone. TheAct,
which remainedin forceintil 1945,made itpossible toremove members
ofparliament belonging c,oppositiongroups (theApristaand
DecentralistParties)in tieConstituentCongress,whichhad been
establishedin 1931, and waa toenact anewconstitutionin 1933.
TheActalp- deprivedthesemembersof parliamentof theirrightsand
prerogatives. Thus, at thevery inceptionof theconstitutionthat
has governed the nationforalmost 50years,subject to the interruptions
mentioned, aneventof thismagnitudetookplace. Thereis notthe
slightestdoubt thatfromthis momentthe legitimacyof the constitution
becamedubious.
Other lawspertinentto the presentstudywere enactedduring
theensuing 12 monthsof politicaland socialupheaval. Worth
particularmentionis Actno. 7491 ofMarch 1932, enactingthedeath
penaltywithretroactiveeffect. ThisAct was passedthe day after
PresidentSanchezCerrofellvictim toapolitical assassination.
Those guiltyof this crime - or ratherthosepresumedguiltyofit -
were summarilytried and sentencedtodeath. During the last fewhours
before sentencewasdue to be carriedout, whenthe preparations for
executionand burialwere complete, they werereprieved. Someweeks
earlier,Acts nos. 7542 and 7546had been passedfor theestablishment
ofcourts-martial to try those involvedin the "Aprista"uprisingwhich
had just takenplice in the northerncity ofTrujillo (1). Several
(i)In thatyear (1932)militantsof the thenyouthful andreformist
"Aprista"partyhad attackedapartof the city inquestion. This
eventgave rive to aninsurrectionwhichspread toother cities
(footnotecontinued onfollowing page)
- 251 -
hundredpeople weresummarily triedand executed. Thislegislationwas
clearlyin breachofthe 1920Constitution thenin effect, whichpro-
hibited the trialof civiliansbymilitaryco,,-ts. Thisprohibition was
removed in the 1933 Constitution.
The 1933 Constitutionwas adoptedafter twoyears ofdiscussions.
It contained ahost of constitutional
rights andsafeguards, whichonly
came intoeffectsome 12 years laterwhenPresident Bustamante yRivero
came topower in 1945. The newconstitutionwas the workofaCon-
stituentCongresswhose legitimacywas highly suspect and its provisions
were subordinate, inrespect ofcertainrights and correspondingsafe-
guards, to thoseof the Emergency Act. Thus, in a leading case concerning
the closure of a public,tion, when the injured party attempted to bring
a petition of habeas corpus pursuant to section 70 of the new constitu-
tion (2) , the courts rejected his appeal on the grounds that the
provisions of the F,'cergenc\, Act still prevailed.
During the years that followed, instead of diminishing the
scope of the Emergency Act, the government of President Henavides,
which followed that of Sanches Cerro, widened its application even
further. After having dissolved the congress, it issued Act no. 8505
in 1937, which extended the Emergency Act to provide for the same penal
sanctions whether an offence was actually committed or was frustrated
in the attempt. The new legislation also provided unequivocally for
the jurisdiction of military tribunals in cases of political offences.
Act no. 9812, passed in 1939, brought newspaper publishers
under the scope of the Emergency Act, and was used to close down a
newspaper supporting a presidential candidate other than the one
favoured by the government. When the Code of Criminal Procedure was
issued later in the year, one of its final provisions suspended the exer-
cise of the right of habeas corpus for as long as the Emergency Act
remained in effect.
Internal SecurityAct (1949-1956)
UponPresidentBustamante'scoming to powerin 1945, one of
congress's first acts was to repeal theactsofexception issued
duringthe preceedingyears,while decreeingat the same timeafairly
wide-reachingpoliticalamnesty. Thisdemocratic spurt was short-lived,
however, for after themilitarycoup headedbyGeneralOdriain 1948,
two importantpoliticalpartieswereoutlawed,the APRAand Communist
Parties. Also,Legislative Decreeno. 11049,"AnAct Concerning the
Internal Securityof the Republic", was issued, thepurposeof which
(1)continued ....
innorthernPeru. The insurrection,whichaccordingto certain
versions didnot resultfromdecisionstakenby the leadersof
theApristaPartyat all, was ruthlesslyquelled bytheSanchez
CerroGovernment.
(2)"Everyindividualand collectiverightrecognisedin this
Constitutionshallsuffice to foundanactionofhabeascorpus."
- 252 -
was to bringtojustice "allcasesofpoliticaland socialdelinquency'.
Thescopeof theoffences setout in this legislationwasextra-
ordinarily wide, rangingfrom"propagationof false information"to
.advocatingforeigndoctrines". Afrustrated attemptwas deemed tobe
equivalent to acompleted offence. Sanctionsprovided in the legislation
formost of theoffences varied from fines to exile. In the case of
certain crimes against the "organisation of the State" and the "democratic
peace of the Republic", however, the death penalty was applicable. The
court of competent jurisdiction was the court-martial using summary pro-
cedures. A central feature of this Act was that it empowered the Ministry
ofGovernment and thePolice (nowcalled the Ministryof the Interior) to
take any "preventive measures" designed to prevent the commission of
offences defined by the Act. The introductionof these 'preventive
measures", which was not coupled with any requirement to bring the person
in custody beforoajudge, gave rise to countlessarbitraryacts on the
part of the central government,such as false imprisonment, search without
warrant and expulsion of citi:-en.
Under popularpressure and with the fall of GeneralOdria's
r, ime, certain amendments to the Internal Security Act were passed
in 1956. ?hese restricted military jurisdiction to some extent and
prcvidied that the Co e of Cr iminal Procedure had to be applied. When a
constitutionAl government was installed in July 1956, one of the first
Acts of tht: now 'ongross was to repeal the Internal Security Act and
am*eni:monts thereto and to proclaim an amnesty for political detainees.
Other. ,egislAtiol (1961-1963)
During the yeairs that have elapsed since 1956, no general laws
of exception or emergency acts similar to those of 1932 or 1949 have
been issued. The customary procedure used both by civilian and military
governments has been to "suspend constitutional safeguards", invoking
for this purpose section 70 of the 1933 Constitution. On other occasions,
governments have taken repressive measures without relying on any sus-
pension of constitutional guarantees. Some legislation pertinent to
this study was, however, issued during this period.
During Prado's presidency, in January 1961, Act no. 13488 was
issued pursuant to which the Communist Party was outlawed and stiffer
penalties were provided for those making any attack (in word or deed)
"against the democratic organisation of the Republic and the represent-
ative system of government". Any such attack against the armed forces
was deemeo to he an iggravating factor. The only penalties provided
for were terms of imprisonment. This was the first repercussion in the
field of law of the possible effects in Peru of the Cuban revolution,
which at that particular time had reached an important turning point.
The Pradogovernment was overthrown inJuly 1962 (onlyten days
3hort of its regular term)by amilitaryrdgime, which was to last for
a year, until July 1963. Under that r6gime, a few months prior to the
1963 elections, the constitutional safeguards of the whole nation were
suspended, and more than 1,000 left-wing political leaders were arrested
and removed toapenal campdeep in the Peruvianjungle. Under thissame
military rdgime, legislation was enacted that was never published,
celled the "General Garrison Service Regulations" (Supreme Decree no.
14-CCFA of April 1963). Itscrucial significance will bediscussed
below,in tire partdealingwithstates ofemergency inPeru.
- 253 -
TheGuerillas
and the Popular
Movement
Uncerthe constitutional
rule ofthe Belauinde
Government
which
began inJuly 1963, political
events ofgrea' significance
tookplace
in the country.
On theone hand, there was agrowing
wave ofrural
unrest,
whichmanifested
itself,
fromthe very firstdayof the
installation
of the newregime,
inthe seizure
of land in the central
and southern
partsof thecountry.
Indeed,
Belaunde's
own electoral
platform
acted as one of the triggers
- although
nodoubtquite
unwittingly
- since he had made agrarian
reformoneof the central
issuesof the election.
Onthe otherhand, in 1965,aguerilla
move-
ment sprangupin thecentral
and southern
highland
regions.
The trade
unionmovement
was becoming
verymilitant,
in particular
theminingand
metalworkers,
and there was widespread
unionisation
ofbankemployees.
Thisprovided
the general
background
for thepolitical
stani' adopted
by the government.
In this connection,
twotypesofmeasures
canbe identified:
those takenagainst
the guerilla
movement
and those takenagainst
cer-
tainsectors
ofthe population,
particularly
the workers.
Ofpar-
ticular
concern
forpresent
purposes
are the legalinstruments
used to
confront
these situations,
but it shouldnot be forgotten
thatmany
othermeanswere usedin addition
to legislation.
In response
to the guerilla
movement,
Congress,
at the proposal
of theexecutive,
enacted
Lawno. 15590 inAugust 1965. Thisprovided
that any attempt
toalter the constitutional
order byviolence
con-
stituted
atreasonable
offence
against
the nation.
The punishment
for
suchan offence
was death.
Accusedpersons
were to be triedbycourts-
martial
setup pursuant
to the CodeofMilitary
Justice.
Other support-
ing legislation
was passed,
such asAct no. 15591,providing
the state
withacreditof 200 million
soles (roughly
equivalent
toUS$ 7,200,000
at the time) to be covered
by an issueof bonds for publicsubscription.
The purpose
of this supplementary
credit was to provide
the government
withthe necessary
resources
tomeet extraordinary
expenses
in connection
withthe repression
of the guerilla
movement.
Supreme
Decree no.
issued inDecember
ofthatyear,provided
that travel
73,
tocommunist
countries
constituted
an offence
against
State security.
Thesuspension
ofconstitutional
safeguards,
whichwasanother
ofthemeasures
connected
withthe suppression
of the guerilla
move-
ment,was alsousedagainst
therural and bank employees'
resistance.
The ruralmovement
wasdealtwithparticularly
harshly.
In viewof
the clearly
defined
location
of thesemovements,
constitutional
safe-
guardsweresuspended
onlyin thoseparts ofthe country
wherethere
was unrest.
Asfor the bankemployees,
theirconfrontation
with the
government,
which continued
until 1964, coincided
withatragic
occurrence
in the Lima National
Stadium,
whichcostthe lives ofmore
than200people. The government
blamed theLeft for this catastrophe
and decreed
that constitutional
safeguards
weresuspended
for the
country
as awhole.
With the government's
blessing,
thebanksdismissed
some600managerial
personnel
withinafewdays. Toasomewhat
lesser
extent,
the samethingtookplacein theminingandmetal workers'
movement.
- 254 -
The1968MilitaryR6gimeandtheConstitution
Thefirstlaw tobe issuedafter the militarycoup in1968,which
overthrewBelau'nde andbroughtGeneralVelascoto the presidency,was
LegislativeDecreeno. 17063, knownas the Statuteof theRevolutionary
Government. Thislaw, whichwas in factasortofdeclarationof the
principlesand organisational bases ofthe newregime,provided,in its
famous section5,that the governmentwould act inconformitywith the
constitution,laws andother regulations in effect "insofar as theyare
compatible withthe aimsof the revolutionarygovernment". Thisprovision,
whichundoubtedlymadepossiblethe introductionof certainimportant
changesin the socialorder, wasat the same time an instrumentof
repressionby the government. Itwas usedto ignoredecisionsof the
judiciary grantinghabeas corpus applicationsbrought by citizenswho had
beenexpelledfromthecountry, as well as to restrict the freedomofthe
judiciary itself, by requiring that itrecognise the supremacyof section
5ofthe statuteover the constitution. It was also invoked to deport
citizenswithout any formalsuspension ofconstitutional guarantees. More
than85 citizenswere exiledbyonemeansoranother between1968 and
May1980.
The crudest applicationof this extra-constitutional provision
took place in 1977, when, in thewakeofanation-wideworkstoppage,
the government authorised thedismissal ofworkersinvolvedin it (Supreme
Decreeno. 10-77-TR). Themainjustification invoked was thatthe country
had been declaredto be in astate of emergency. In thiscase, however, it
wasdifficultto claimthat the measure wasoneofsocial defence (as had
been argued in the case of some of thedeportations), because the result
wasthe immediatedismissalof3,498 white andbluecollarworkers, for the
most part tradeunion leaders. Anumberofbasicconstitutionalprinciples,
amongthemthatof the presumptLonagainst the retroactiveeffect of
legislation,were called intoqaestion. Pursuantto section 133 of the
constitution (3), anumber of citizensin agroupaction before thecourts,
appealedagainstboththisSupremeDecreeandanotherdatingfromthe
previousyear, whichprohibitedstrikes andotherindustrialaction. The
judiciary,whichhas but limitedindependence fromthe executive in this
kindofcase,first resorted to delaying tactics in theexaminationof the
case andfinally declaredthe proceedings to have lapsed (4).
As mentionedabove, no generallawof exception,or, rather, none
resemblingthe 1933 and 1949Acts, was issuedduringthe last12 yearsof
(3)"Agroupactionmaybe brought beforethe courtsagainst regulations
and governmentalorders and decreesof ageneralnaturewhich
violate theconstitution or the law".
(4)The actionwas firstbrought inAugust 1977. The solicitor-
general,whose certificatewas requiredinorderto permit
the actiontogo forward,resortedto the expedientof
delayingany further actionfor severalmonthsand then finally
resigningwithout havingdoneanythingatall about the case.
Later,when the action wentforward to the clerk ofthe court,
itwas "mislaid"for severalweeks. The petitioners' appeals
wereconsistentlyleftunanswered.
- 255 -
militaryrule. Thisis notto say, however, that therewerenot
differentperiodsofexception
of varyingscope. On the nationalplane,
therewere decreessuspending
constitutional
safeguards
and/orpro-
claimingstates ofemergency
at varioustimes. The followingsection
deals particularly
with this sortofdecree,affecting either the whole
orapart of the country.
In additionto these generalmeasures, there
were more specific ones, which had aparticular
impactoncertain
groupsof workers.
The 'Reorganisations'
and States of Emergency
In the face of increased militancy on the part of workers'
organisations
and in the light of the aims they were pursuing, a number
of corporations
and institutions
in the public sector were 'reorganised'
The salient features of this operation
are worth recalling.
In November 1972, the Ministry of Fisheries was authorised
to dismiss officials and employees
and, indeed, mainy were fired. In
June 1973, during strike action by the workers of the State Steel
Corporation
(SID!CRIERU),
a Special Legislative
Decree no. 20043, was
issued Authorising
the dismissal
of workers without following
the
requirements
of the existing law. About 50 workers were deprived of
their jobs. A few months later, in October 1973, Legislative
Decree
no. 20201 empowered
the Minister of Education
to suspend, without a
hearing and for as long as 12 months, "teachers who advocate subversive
action".
A number of teachers were suspended.
Other public bodies were subsequently
declared to be 'reorgan-
ised', sometimes for reasons which may well have been valid, given the
bureaucratic
inefficiency
prevwlnt
in some of those agencies.
Generally
speaking, however, the reorganisation
concentrated
principally
on dismissing
workers, and those who had engaged in trade union
activities
usually figured preminently
on the lists of those to be
fired. In April 1975, the SINA.1OS (National Support System for Social
Participation)
underwent 'reorgansation',
as did the PeruvianSocial
Security Agency in December of the same year. In the following month,
January 1976, the Marltime Inciustrial
Service (the state-owned
docks)
was ordered to 'reorganise'
after its employees had engaged inastrike
lastingafewhours: 250workersweredismissed.
Severalyearslater,
during a strike of municipal employees,
all of the municipalities
of
the Province of Lima were ordered to 'reorganise'
(March 1978).
Alongside these 'reorganisations',
of which only the most
important
have been mentioned,
legislation
proclaiming
and applying a
state of emergency
in certain sectors of economic activity was issued.
This particular
application
of a state of emergency had the prime
purposeof restricting
the right to strike. The first legislative
provisions
to this effectconcernedthe anchovyfisheries,
whichat
that time wereunder the control of the statecorporation,
PESCA-PEPU.
Workers in this sectorwereprohibited
fromstrikingby aproclamation
of astateof emergencybyLegislative
Decree no. 21450. At thesame
time, Legislative
Decreeno. 21451ordered the 'reorganisation'
of the
corporation,
involving the suspension
ofthe legislative
provisions
guaranteeing
securityof employment.
Pursuant to the newlegislation,
workerswho were engagedinastrikeat the time, inprotestagainst
a 'rationalisation'
planforthe fishing fleet that threatened
to
leaveseveral thousandfishermen
jobless,weredismissed.
Somemonths
- 256 -
later, afterawidespread fishermen'sstrike, several thousandothers
were fired.
Another law,this timecoveringtheminingsector,was issued
inApril 1976. LegislativeDecree no. 21462 proclaimedthis sector to
be in astate of emergency,consequentlyprohibiting the right tostrike.
All strikes and work stoppages in the mining industry in Peru were
outlawed and management could dismiss employees at will.
Although thelegislationwas enactedat atimeofdrasticfalls in the
international prices formany mineralsproducedin Peru,it wasmain-
tained for more than four years, notwithstanding the marked improvements
registered for metals luring that period.
Almost a year later, in March 1977, the sugar industry was
proclaimed by law to be in a state of emergency. This sector, which is
controlled by cooperatives established during the agrarian reform, was
facing an economic and financial crisis. The proclamation of the state
of emergency set out a series of measures restricting wages and working
conditions and prohibited strikes and work stoppages. The workers of one
cooperative (Tuman) were actually put out of work for having engaged in
a work stoppage.
Another case which should be mentioned is that of the employees
of the national daily newspapers. When the newspapers were nationalised
in 1971, the editors appointed by the government were empowered to dis-
missemployees. Ayearlater, in June 1975, when the managingeditors
were replaced by governmentorder, the neweditorswere given thesame
power for 30 days. Again, in March 1976, while the military government
was changing its options, there was another switch in editors, and the
job security of employees in the newspaper sector was again suspended,
this time for 90 days.
It thus becomes apparent that in recent years 'reorganisation'
measures and states of emergency have constituted an important aspect
of the government's policies towards the .'ery significant sector of the
population comprising the workers. According to some estimates, more
than 10,000 workers have lost their jobs since 1976 as aresult of measures
of this sort (including dismissals resulting from the application of
Supreme Decree no. 10-77-TR, mentioned above).
The right to strike has also been repeatedly and continuously
whittled away. Although strikes have been formally prohibited in certain
cases (sectors 4f the economy in which states of emergency have been pro-
claimed, public employees, etc.), they have much more frequently been
declaredillegal by resorting toother means. Oneway hasbeen todeclare
the work stoppage to be of no effect because the grievance or grievances
werebeing considered according to proper procedures with a view to their
resolution. Another way has been to declare that a decision regarding the
grievance or grievances has alread, been made and that, therefore, any
stoppagein respectof those grievances is improper. In special cases,
particularly work stoppages of a local character, an argument has been
relied on to the effectthat several points indisputewerenot strictly
related to conditions of work and employment butwere political in
nature. In similarcases, the additionalargument has alsobeenmade
that the trade union organisations leading the dispute were not legally
recognised.
- 257 -
AlrDstall of these argumentswereused in respectofastrike
lastingover threemonths,whichwas undertakenby teachers in 1979.
Accordingto conservativeestimates, at least4,000teacherswere
dismissed. Some of them were re-engaged, but inmanycases
theywere arbitrarilyassigned tootherposts.
Freedomof Expression
Therehavebeenanumber ofattacks onfreedomof expression
since 1968,amply illustratedby the expropriationof alldaily news-
papersby the state,which took placein 1974. The subject is an
extremelycomplex one andmany aspects of it have to be considered.
It is highlyundesirable to treat it superficially and hencerun the
riskofseriouserror. Duringthe last 12 years ofmilitary rule,
variousbodies of the presswere searched,closed downand their
publications in circulationconfiscated withoutwarrant. Atendency
to thissort ofaction becamemuchmoremarkedandwidespreadwhen the
economiccrisis and, ultimately,popularpressure intensifiedfrom
1976on. The chief breachesof theright to freedomofexpression
that took placeduring the spanofmorethan adecade,from1968 to1980,
followin chronological order.
In November 1968, pursuantto LegislativeDecreeno. 17094,
thepremisesof the dailynewspaper _pres_, which supported ex-
PresidentBeladnde'spolicies,were searchedand its publicationsus-.
pended. InMay 1968, the cur-entedition ofthemagazine,Caretas,
wasconfiscated and its managing editorsentintoexile. Thefirst
PressAct,regulatingoffencescommitted by thepress and broadcasting
media,was issued in 1969.
In 1970,the cresowas expropriated (byvirtue of Legislative
Decree no. 18169)and, onthe basis oflegalproceedings, theAprista
journal,LaTribuna,was suspended. In the sameyear, thePolivian
journalist,ElsaArana, wasdeported, and the managingeditorof Caretas
was sentenced,under thePress Act, tosix months'imprisonmentanda
fine of 10,000 soles. Twoyears later,in 1972, anotherreporter,
CarlosCosta, editorof theweeklymagazineIndio,wasdeported. The
sameyear, the government indictedanumber of journalistsfor certain
articlesthat hadbeenpublished- AnibalAliaga for his article
entitled"RevolutionaryDemocracy" and two reportersof thedaily news-
paperUltirre Horafor havingpublishedan articlewhichallegedly "com-
promisedPeruvianforeign relations".
Later,in September1973, thegovernment confiscated an
editionof themagazineSociedaayPoliticaedited bythePeruvian
sociologist, AnibalQuijano. Another confiscationtookplace in
January 1974, this time againstIndio. In thatyear,Caretaswas
ordered tobe closeddownand its managingeditorwas again sentinto
exile. AnewPressActwasissued inJuly,resembling itspredecessor
inmostrespectsbut adlustedto the newsituationcausedby the
nationalisationof the press,which had just takenplace. In November
ofthe sameyear,the Eng,.3h-language review, thePer-uvianTimes,was
closeddown forquoting informationconcerningapipeline thenbeing
built, thatwas not to the government's liking. Asinmanyother cases
of closure, thiswasquitesimply an abuseofpower,havingnolegal
basiswhatever. Similarly, inMarch 1975,for instance, Caretas
(whichhadpublishedan article thatthe governmentdisliked aboutshort-
agesinhospitals)was closeddownmerelyby meansof anofficial
notification.
- 258 -
In August1975, the Left-wingpublication,Marka,was closed
down for criticisingthe Chilean government. Alongwiththe closure,
notonlythe editorbutalso all the staffof themagazineweredeported.
In September, the closureand deportationorderswerecancelled. Adecree
was issued inMarchof 1976 requiring thatanyoneeditingapublication
must firstapply for alicencefromacertaingovernmentagency. Shortly
afterwards, inJuly, the sevenmost importantmagazinesin the country
were closeddownpursuantto LegislativeDecreeno. 21539. In December
of the same year, someof themwereallowed topublishagain, and the
otherswere permittedto re-open in September 1977, i.e., aftermore than
ayearofsuspension. Thereafter, however, the Ministryofthe Interior
institutedasystemof "anticipatory censorship", which lasteduntil
November.
All newspapersand journalswereclosed foramonth in 1978,
right in themiddle of theelectioncampaignfor the Constituent
Assembly. In January 1979,the publicationof mostof theperiodicals
was "suspended"in accordance withaLegislative Decreeissued for
the purpose (no. 22414). Subsequently,some wereallowed to publish
again but therest remainedclosed. After ahungerstrike by anumber
of people, including journalistsof quiteavarietyof politicalper-
suasions, the government permitted there-opening of all theperiodicals
that ithad closeddown.
Itis clear from the above that,during this12 yearperiod
tillINay 1980, eventhoughnoEmergencyActwasissued or stateof
exceptionproclaimed, legislationwas passedand policiesimplemented
that, in many cases, involved breachesofbasichumanrights. The rights
ofworkers and freedomof expressionwere all compromised in variousways.
Personal freedom was alsoviolatedonmanyoccasionsas aresultof
arbitrary arrests,andmore than 80deportations tookplaceduring this
period. It should be recalledalso that the wayin whichthe authorities
reacted, and inmarny casesover-reacted, topopularprotestresultedin
asignificant numberof deathsandwoundings, inconnectionwith
demonstrations, occupationof factoriesand farmlands,etc.
Afinalpoint tobe mentionedwith regard to thisperiodis the
markedexpansionofmilitarytribunals. Aswillbe seen below,these
courtswereprogressivelyextendingtheir competence to offences that
wereinnoway militaryand in respectof which the accusedwerecivilians.
II. SUSPENSIONOFCONSTITUTIONALSAFEGUARDSAND
DECLARATIONOFSTATESOF EMERGENCY IN PERUVIANLAW
The 1933Constitution,whichremainedin effectinPeru until
28 July 1980,provided,at section70,for the suspension ofconstitutional
safeguards. The conditionprecedentrequired bythis sectioninorder
for it to comeintooperationwas thatstate securityshouldbe in
jeopardy. The executivewas empowered to ordersuspension and, insofar
as congress was functioning, theexecutive "shall immediatelyinformit
thereof". The suspensionof constitutionalsafeguards could apply to
all orpartof the national territoryand onlyaffected theguarantees
set outin sections 56, 61, 62, 67and68, the substanceofwhich willbe
describedlater. It mightbedecreedonlyfor atermof 30days, renew-
able onlybymeans ofanew decree. There wasno restrictionon the
numberof times that the suspensioncouldhe renewed. Therewas merely
- 259-
afinalphrase in thesection
to theeffect that "thelawshalldefine
thepowersof the executive
duringthe suspension
ofconstitutional
safeguards".
Nosuch lawhad everbeenissued,
however.
Duringasignificant
portion
of the timewhen this con-
stitution
was formally
ineffect,
therewere emergency
acts (suchas
the Emergency
Act fron, 1932 to 1945 and the Internal
Security
Act
1949 to 1956) that rendered
recourse
from
to the suspension
ofconstitutional
safeguards
superfluous.
In otherperiods,
particularly
duringthe latter yearsof the
military
r(gime that took officein 1968, the suspension
ofcon-
stitutional
safeguards
tendedto bepartof amoreor less habitual
phenomenon
takingplace in the face of social upheaval
of varying
kinds.
Under the military
government,
the preamble
to the proclamations
of
suspension
ofconstitutional
guarantees
referreu
to section
70of the
constitution,
mentioned
above, and alsoto section
213 thereof,
concern-
ing the armed forces.
As will be seenshortly,
this reference
was not
without
significance
for the progressive
extension
of thescope and
portent
of thesuspension
of constitutional
safeguards.
The expression
"constitutional
safeguards"
is usedhere
without
entering
intoabstruse
jurisprudential
considerations
current
in Peruvian
constitutional
legal theory,
whose purpose
is to demonstrate
onvarious
grounds
that the suspension
of certain
constitutional
rights
or guarantees
can be justified
in the nameofdefending
thecollective
interest
as awhole.
Thus, Bidart,
forexample,
states that"... in
viewof therelative
character
of individual
rights, certain
limitations
thereof
are justified
when the collective
interest
so requires".
Onthe basisofthis premise,
ofwhichasingleexample
is
mentionied
here, an equally
bstruse
and prolixdiscussion
has arisen
betweei,
those whomaintain
that the question
isone of "suspension
of
rights"
and those whoargue that it is one of"suspension
ofsafeguards".
According
to the firstgroup,certain
constitutional
rightsare them-
selvessuspended,
while according
tothe second group, the rights as
such continue
toexistbut theconstitutional
safeguards
makingthem
enforceable
are suspended.
Fromthepoint ofviewof practical
effect,
however,
the controversy
hasbeen, and continues
to be,purelyacademic.
It isquiteobvious
that thesuspension
orabsence
ofinstruments
enabling
aright to beenforced
("suspension
ofsafeguards")
amounts,
indirectly,
to the suspension
ofthe rightitself.
Conversely,
the
suspension
ofarightas such renders
thequestion
of theexistence
of asafeguard,
whosepurpose
should be to enforce
it, completely
irrelevant.
It should be remarked,
however,
thatcertain
safeguards
(habeascorpus,
for instance)
cancontinue
tobe usefulwithrespect
to suchrightsas havenot beensuspended.
In the lightofthisdis-
putation,
Peruvian
constitutional
law (bothin 1.933 andmore recently,
in 1979) hasopted in favour ofthe formulation
"suspension
ofsafe-
guards",
but if the sections
to whichthe suspension
permitted
bythe
constitutional
provisions
is applicable
areexamined
closely,
itwill be
seenthat they concern
rightsrather than guarantees
of theexercise
ofrights.
Groupactionsorhabeascorpuspetitions,
for example,
are
not subject
tosuspension.
It follows
simply
thatrights thathave been
suspended
cannot - temporarily
- be enforced
by thesafeguards
in
question.
- 260 -
Thepresentarticle uses,however, the time-honouredconstitution-
al formula. Thus, when"suspensionof constitutionalsafeguards" ismen-
tioned,what is meantis the sameas whatis meantby the respective
Peruvianconstitutions,even though, practicallyspeaking,what is being
alluded to is the suspensionof rights. Five ofthese 'safeguards'could be
subject to suspension under the 1933 Constitution: no arrestwithout
judicial warrantand without, in allcases, beingbroughtbeforeajudge
within 24 hours ofbeingtakenintocustody (section56); no invasionof
private premiseswithout awarrant (section61); the rightof assembly
(section62); the right tomove freelywithinthe countryand to enter
and leave it without hindrance (section67); and no banishment fromthe
countrywithout ajudicial order (section68). It obviously followed from
any suspension that there could be norecourse to habeascorpus,as guaran-
teed by thesame constitution (section 69), against an administrative or
policeact basedon suchsuspensionanddirectedagainstasuspended right.
Importantconstitutionalrights could thus beput aside byasimple
orderof theexecutive, and the legislaturehadmerely to be informedof
this decision. Such suspensioncouldbe renewedindefinitelyso that the
executive, and through it the police forces, tookonvery considerable
importance withoutbeing in anyway in violitionof the constitution.
The right tobring apetitionofhabeas corpus, evenwith the limited
practicaleffortthatsuch an actionmayhave, was simplybrushedaside.
Between 1l'S0 and 198(0, therewere nofewer than 50 sus-
pensionsof constitutionalsafeguardspursuantto these provisions,
respectingeither thewhole or partof the national territory andamount-
ing to anaggregate total time spanof not less than fouryears. In this
connection it should bementioned that, since 1976, the repeated renewal
of the suspensionof safeguardsfor the country as awhole becamemore or
less routine. Thus, there was alongperiodof suspension,of 14 months,
fromJuly 1976 toSeptember1977, thentwo furthermonths inMay andJuly
1978 (whenthe left-wingcandidates for theConstituentAssemblywere
deported) and finallyanother suchperiodin the first threemonths of
1979 (the suspension of section 56 remained ineffectuntil January
1980). In addition to all those which applied to the entLire nation, in
the came period there were anumberof suspensions for partsofthe country
in responseto situations thatwere of limited geographical incidence.
These additionalmeasures began in1976 and were in manycases rccompanier.
by curfeworders (LimaProvince,for example,was under acurfew "rderfir
14 consecutivemonths fromJuly 1976 to September1977) andbythe
proclamation of as ite ofemergency. The real social causesofthese
measures were undoubtedlythe various demonstiationsandprotests taking
place from that time on againstthe marked deteriorationin livingcon-
ditions resultingfromthe way the economiccrisiswasbeinghandled.
First, therewas the closingdownof the state anchovyfleet and then the
generalreduction of the real levelof the alreadymeagreworkers'wages,
whichlost 32% of theirpurchasingpower within fiveyears (1973-1978).
The "collective interest"beingdefendedwas thus acontestedand con-
testableeconomicpolicy,which wasbeing severelycriticisedby the
'collectivity'
in question.
An issuewhich is clearlyofprimeimportance concernsthe powers
of theexecutiveduringthe suspensionofconstitutionalsafeguards.
Obviously,the rights that have beenexpressly suspendedare notobser",i.
Thishas resultedandstill resltsinthe arbitrarydetentionof
politicaland tradeunionfigur,:s (inmostcasesthe custodyispurely
"preventive"), the violationofprivateproperty, theprohibitionoftrade
- 261-
unionmeetings (andratherless frequently,
ofpolitical
meetings)and
the exileofcitizens.
On otheroccasions,
thesemeasuresare taken
withoutbeingfoundedonany suspension
ofsafeguards,
but insuch cases
the authorities
resortto othermeansofpreventing
the useofhabeas
corpusor similarguarantees.
But this is not the real issue.
In July 1972, when there was considerable
studentandpopular
unrestand agitationin the city ofPuno,not only were the safeguards
suspendedbut the CountyofPunowas alsoproclaimed
to be in astateof
emergency.
The same thingtook place inCusco in November1973 and
throughout
theentire national territoryin February1975, in the wake
ofevents thatoccurredduringthe strikeof the regularpolice forces.
Sincethen, 29suspensions
of safeguards
havebeen coupledwithpro-
clamations
ofstatesofemergency.
FromJuly 1976 toAugust 1977, the
wholecountrywasplacedin astateofemergency,
and thisoccurred
againinMay 1978 (themonthofelections
to the Constituent
Assembly)
and during the first twomonths of1979. What was involvedin this
suddenemergence
of alegal phenomenon
- astateofemergency - that
had notbeen resortedto before andwas notprovided for in thecon-
stitution
or in any otherknown legislation
?
Theseproclamations
of states ofemergency
were basedon legis-
lationdecreed inApril 1963: theGeneralGarrisonServiceRegulations
(SupremeDecreeno. 14-CFFA).
This SupremeDecreehas, however,never
been published,
afact which, in itself,deprives itoflegal effect
since section 132 of the 1933Constitution
provides thatala-; (inthe
widesense) ismandatoryas ofthedayfollowingits adoptionand
publication.
Alawof general scope, as this SupremeDecree would appear
tobe, has notthe force of lawat all, therefore,
foras long as it
remainsunpublished.
It wasnevertheless
on the basisof thissecretpiece oflegis-
lationthat statesof emergency
were proclaimed,
coinciding
with
the suspension
ofconstitutional
guarantees
by the executive.
It is
impossible
to guess the contentsof anunknownlaw,but certainelements
can bededucedfromthe practical
consequences
of the statesofemergency
proclaimed
in recentyears. Unlikeasimple suspension
ofconstitutional
safeguards,
astateofemergency involvesatransferofpolitical
and
militarypower to the militarycommanders
of thedifferent
zones. Pur-
suant to theexplicit termsof the decreesproclaiming
statesofemergency,
the commander
of the militaryzone concerned
"herewith
takesoverthe
political
and militaryauthorityin the area". Thus, whatis involved
is notmerely asuspension
of asafeguard
(orright) togive theexecu-
tive broaderpowers, but thedelegation
of suchpowersbythe executive
to thearmedforces, which have noconstitutional
authorityfor
exercising
them. Consequently,
asituationarisesin whichthemilitary
commanders
not onlydecideon the ordering,the scope and the lifting
of curfewsand the patrolling
of the streetsby regulararmy, navy and
air force units,but alsoexercise the prerogatives
which,undera
simple suspension
of constitutional
safeguards,
wouldpassto the
executive.
Suchasituation,
whichwasirrefutably
unconstitutional
and
mostserious inits implications,
wassomewhat
irrelevant
inpractice
since the countrywasunderamilitarygovernment
anyway. Insofar as
thepolitical authorities
thatwere broughtunder thecontrol ofthe
militarypursuantto the stateofemergency
were approvedbythe same
military authorities
in the firstplace,no substantial
changeof
r6les actuallytookplace.
- 262 -
Themilitarygovernmentexerted considerablepressureon the
majoritypoliticalpartiesin theAssembly,which metin1978 and 1979,
however,and since thosepartieswere anxious to takeover the reins
of governmentwithoutmajor setbacks,theyagreedto incorporate
important provisionsgoverning statesof exceptioninto the newcon-
stitutionaldocument. It is worthexaminingthis crucial issue since
it is undoubtedlygermaneto possible futuredevelopments inPeru
regardingstates ofemergency.
Thechapterof the new constitutioncoveringstatesofexception
containsasingle section,section 231,providingfor the existenceof
two possible statesofexception: the stateofemergency and the state
ofsiege. In both cases, the executiveproclaims the statesofexception
andinforms Congressor the StandingCommitteethereof. The stateof
emergencyis applicable to cases of "... threats topeace orpublic
order, disastersorserious circumstances affecting the life of the nation".
Thestateofsiege, on the otherhand, concernscasesof "... invasion,
foreignor civil waror any imminentdanger thereoE". Even though, some-
what strangely,the scope andpurportof the state ofsiege are not
defined in the constitutionaltext, th,re are someparticulars as to
the stateofemergencywhich it is useful to examineingreaterdetail.
In thefirstplace, it is providedthat certainconstitutional
safeguards maybe suspended duringastateof emergency. Repeatingthe
language of the 1933 Constitution as regards "safeguards" rather than
"rights"it is providedthat the safeguards thatmaybe suspendedare
those relatinqto individual freedomand safety, inviolabilityof
private dwellings and freedomofassembly andmovementwithin the
country. The application of the sanction of exile is explicitly pro-
hibitedunder astate ofemergency.
Secondly, it is provided thatduring astate ofemergency
thearmed forces shall be responsiblefor the maintenanceofpublic
orderwhenthe President soorders" (section231(a)). This provision
bringsan important change to the situationenvisaged in the1933Con-
stitution, insofar as the 1933Constitutioncontained no faculty for the
executive todelegate itspowers to the armed forcesduringasuspension
ofconstitutionalsafeguards. Nevertheless,under thenewconstitutiolnal
provision, it would not appear that theproclamationof astateof
emergency automaticallyentails the transferofpowerto themilitary.
Onthe contrary, this is left to the Presidentof the Republictodecide.
The newprovisiondoes,however,bring withinthe terms ofthe
constitutionactions that werepreviously irregular and unconstitutional
because they werebasedon unpublished legislation. As from28July
1980, the proclamation that "the militarycommanders herewithtakeover
the politicaland militaryauthority in the area" is notautomatically
in breachof thenew constitutionalorder. Thisprovision ofthenew
constitution seems to beconnectedwithdevelopments in the policiesof
governmentsin anumber of LatinAmericancrintries. Manyof them-
Colombia is probablythemosttypical - have carefullypreserved the
formsof democraticallyelectedgovernmentwhile, inactualpractice,
muchgreaterpower is concentratedin the handsof the armed forces.
According tosome commentators, this gives the armed forcesreal authority
as regards the essentialissuesof the life ofasociety,while the
civilianauthorities are leftonlysnippetsofpowerand havemerely
- 263 -
theappearance
of conducting
the affairsofstate. In the opinionof
many,this division
ofpoweris tending tobecomeentrenched
inanumber
ofcountries
andthenewprovision
inquestion
is seen asproviding
a
constitutional
basis for themaintenance
ofstatesofemergency
over
protracted
periodswith the inevitable
consequences.
Thirdly,
it is significant
that the periodofvalidity
of a
proclamation
of astate ofemergency
is 60 days, thusdoublingthetime
provided
for the suspension
of safeguards
in the 1933 Constitution.
As
witn the suspension
ofsafeguards
in the previous
constitution,
the
proclamation
of astateof emergency
can be reneweduponexpiry for as
many timesas necessary
by simpleorder of theexecutive.
Whenthe
termof the suspension
wasbeingdefined in the newconstitutional
pro-
visionsomething
took place whichmay seem purelyanecdotal
but is not
devoidofrelevance.
Whenthe chapteronstates ofexception
was before
the Plenaryof the Constituent
Assembly
for approval,
itwas agreed that
the periodofeffectof aproclamation
ofastateofemergency
should
be 30 days. In accordance
with the standing
ordersof theAssembly,
the text then went to the Drafting
Committee
and was to be returned
to
the Plenary for final adoptionof the wordingformulated
by the Committee.
Curiously,
the text which came back from the Committee
to the Plenary
had been changed substantially
by doubling
the effective
period to Go
days. Clearly the Drafting
Committee
had exceeded its terms of reference.
In spite of this, the text, as amended,
was adopted by the Assembly.
Apparently
no one noticed,
at this stage, the change that had
introduced.
In the last analysis,
been
however,
since this was the text
finallyadopted by tl.oAssembly,
this is the text which came into
effect on 28 July.
As regards statesofsiege, these too mustbe proclaimed
by the
executive
but onlyfor amaximumperiod of 45 days. Theapproval
of
Congress
is necessary
for theirrenewal.
III. SAFEGUARDS
FORTHEPROTECTION
OFRIGHTSBREACHED
The 1933 Constitution
providedfor two sorts of actionin cases
ofbreachof constitutional
rights. Firstly,
habeas corpus (section
69)
invokedin casesofviolation
of the individual
and socialrights
recognised
bythe constitution.
Secondly,
the groupaction (section
133) against regulations,
decisions
andordersof thegovernment
which
infringed
the constitution
or lawsineffect. Habeascorpuswas in-
tended tobe usedagainstactsofauthority
in breachof constitutional
rights, whereas the groupactionwas intended
to be invokedagainst
legislation
inviolation
of the constitution
or laws in force. The
aimin the firstcasewas toputan end tothe arbitrary
act being com-
mitted,while in the second,it was topreventthe application
of the
legislation
impugned.
The 1933 Constitution
madenoprovision
forthe
courts tobeempowered
generally
to declaredirectorsubordinate
legislation
unconstitutional.
Habeascorpus ispertinent
tooursubjectbecause it is an
instrument
forenforcing
individual
rightsand freedoms,
protecting
the privacyof the home againstunwarranted
trespassand upholding
free-
domofmovement
within the country.
Fromitsvery inception,
however,
the 1933 Constitution
metwithanumberofsituations
thatseriously
compromised
the impactofthis guarantee.
- 264-
The first situationwas thesuspensionof the rightto havere-
course to habeas corpus. This tookplaceunder theEmergencyActuntil
1945, under the Internal SecurityActfrom19e., to 1956and duringthe
countlessperiodswhenconstitutional
safeguards weresuspended inPeru.
Thesecondsituationwas thatof theaggrievedpersonormembers
of his family (incasesofunlawful imprisonment)
invoking habeascorpus
whenthe constitutional
guaranteeswere not suspended. Incertain cases,
habeas corpus petitionswere madeand the courtproceedings were conducted
properly,withthe result thatthe aggrievedpersonhad his legitimate
requestguaranteed. In other cases,however,and with ratherdepressing
regularity,the authorities acted in amannerdesigned specifically
to
avoid possibleresort to habeas corpus. The usualmeanswas for those
who ha,! arrestedthe individualand had himin custodyon theirpremises
to deny this. The effectiveness
of this method depended on the difficulty
which members of the family of the person concerned (and/or the judicial
authorities)
may have had in physically locating the victim so as to have
him liberated by habeas corpus. In furtherance of this method, a pro-
cedure commonly known as the "roundabout" was used, consisting of secretly
transferringaperson fromone placeof letentionto another. Another
means used for the same purpose was to take the detainee to a destination
completely inaccessible to those seekinc him, thus rendering judicial
intervention prictically impossible. This happened, for example, in
December 1975 when a group of lawyers, who were legal advisers to trade
unions, were arrested and sent to El Sepa, a penal colony located in
the jungle. In spite of the fact that the constitutional
safeguards had
not beensuspended and that theywere kept in custodyfor severalmonths
(without a warrant of any kind and without being subjected to any other
kind of judicial proceedings) habeas corpus could not be used because no
judge was able to reach the place of detention.
The third situation in which the habeas corpus problem arose was
when the petition was granted but, notwithstanding
this, the executive
opposed the enforcementof the judicialorder,which thus becameboth
inapplicable and irrelevant. This took place eider the military govern-
ment in connection with citizens who had been expelled from the country
without either judicial decision or suspension ofconstitutional
rights.
Therewereevencases, especiallyat the beginningof theregimein ques-
tion, when, in the wake of judicial granting a
of a habeas corpus
petitionin favourof anaggrieved party,one of thehighlyplaced spokes-
men for the government stated publicly, "Let him try to come back if he
can !".
The groupactionis arelatively recentphenomenon,even though
it was also containedin the 1933Constitution.
Theproblemwas that
when the constitution
was draftedand adopted,it was takenfor granted
that the corresponding
legalprocedureswould bedefined subsequently.
Theseprocedureswere in factdefinedonly30yearslaterwhen the Basic
JudiciaryAct (5)was issued. Althoughthe procedure ofthe groupaction
(5)In anotherprovision, the constitutionmade reference to
groupactions for adifferentpurpose. This is section 231,
whichlaid down thatagroupactionwould lie to impugnabuse
ofofficeand other offencescommittedby the judiciary. It
could alsobe used to contestactsin breachof judicial
decisions. The CodeofCriminalProceduresalso containeda
section (section76) providingfor the introduction ofa
groupaction incasesof personscaught in flagrantedelicto.
- 265 -
has beenusedonasmall numberof occasionsagainst legislation
affecting individual rights of the population,mostof therarecases
whenit has beenusedhavebeen inconnectionwith issuesonlymargin-
allyrelatedto the subjectof our inquiry.
The 1979Constitutionprovidesmachineryrathermoreextensive
than that available under the 1.933 Constitution,since it establishes
aconstitutionalsupervisory body called theCourtofConstitutional
Safeguards. Thisnewconstitutionalsodefines - more restrictive, -
thescope ofhabeascorpus petitions,maintainsthe groupactionand
establishesactions ofpetitionof rightand certiorari.
Habeascorpus safeguards the citizenagainstacts oromissions
ofany authority, officialor person that violatethe individual's
rights. Compared with the 1933Constitution, the newprovisionofthe
1979Constitution limits the scopeof habeas corpus because under the
previous legislation it could beused to enforce all individual and
collective rights, and notmerely individual freedomsguaranteedby the
constitution. On the other hand, there is aconsiderablymore flexible
requirement with respect to the definition of the person committing
the violation. There is no conditionthat the impugnedagent mustbe
a government official, as judicial precedents had been tending to estab-
lish hitherto. It is sufficientthat the impugnedact be aviolation
of individualfreedoms.
The petitionof right covers all the otherrightsrecognised
by the constitution,withsomelatitude in respectof the identityof
the agent. The groupactionis definedin similar terms to those
contained in the 1933Constitutionwith the additionalelement that
the legislation that can thereby be contestedmay be not onlyorders
ofthe executivebut also thoseissued by regional and local government
andother publiclawauthorities.
Undoubtedly,the mostimportantinnovations are theactionof
certiorari and the establishmentofthe Courtof Constitutional Safe-
guards. Thepurpose ofthe actionmentioned is tohave laws, legislative
decrees, regionallegislationof ageneral characterandmunicipalbye-
laws disallowedasunconstitutional, eitherin wholeor inpart, when
they are inbreachofprovisions oftheconstitution. Thissignal
development, which is somethingofanovelty in Peruvianconstitution-
al law, is coupledwith the creationof the CourtofConstitutional
Safeguards as the supervisory bodyof the constitution (6). If it gives
adecisionofunconstitutionality, t|,e decisionshall be communicated
to Congress,whichshall thenpass alawrepealingthe unconstitutional
legislation. If after 45days nosuch repealhas takenplace, theun-
constitutional legislationwill be deemedtohavebeenrepealed ipso
jure. The rangeof personsempoweredto introduce thissortofaction
is limited, however, to thePresidentof theRepublic,the Supreme
Courtof Justice, the Solicitor-General of the Nation,60membersof
Congress (ofatotal of 180), 20 Senators (ofatotal of 60) or
50,000citizens,whosesignatures are certified bythe NationalElections
Commission.
(6) TheCourtofConstitutionalSafeguards is composedof ninepersons,
threeappointedbyCongress,threeby theexecutiveand threeby
the SupremeCourtofJustice.
- 266 -
IV. THE EXTENSIONOFMILITARY JURISDICTION
During the last few days of the military government which
heldoffice from1962 to 1963, LegislativeDecreeno. 14612 containing
theMilitaryJusticeAct and Legislative DecreeNo. 14613containing
the newCode ofMilitaryJusticewere enacted. Both piecesof legis-
lation resulted fromthe first experience inPeruvian historyofan
institutionalisedmilitarygovernment. Militaryrule hadbeen frequent
in the past but this was the first time that the armed forces had been
definedas an institutionin apolitical policywhichultimately led in
1968to the military rdgime headedbyGeneral Velasco. Oneof the
cornerstonesof thispolicywas "nationalsecurity'. Thiswas a
notion interconnected with the armned forces' duty not only to prepare
to defend the country's borders in the event of attack from without
but also to attack the bases of instability and unrest that might arise
within. Thispresupposed twosorts of complementarymeasures- on the
one hand, implementing certain social reforms aimed at reducing potential
focal points of tension and conflict and, on the other, reaffirming and
extending the role of the armed forces as the "defenders of the father-
land'. it is for the second of thosemeasures that legislation suchas
the two legislative decrees mentioned above were passed.
It is in this context of national defence that the preamble to the
new Code of Mlilitary Justice proved to be capable of developing into a
progressive oxtensionofmilitary jurisdiction. It states, for example,
that "... it is necessary to define more accurately certain offences
,and to extend the categories of crime to include those which have in the
course of time and because of the changes which have taken place become
manifest an'l are used to undermine the defence of the nation, and are
thus contrary to the proper fulfilment by the armed forces of the specific
mandato whi c the constituticn confers on them".
it was since 1968, especially, that the extension of military
jurisdict ion became ever more apparent. This took place largely as a
result of new legislation that defined new offences or brought offences
formerly within the competence of the ordinary courts under military
jurisdiction. It was effected also by means of judicial decisions that
increasingly extended the powers of courts-martial to cover matters that
were clearly of a political nature.
These extensions by means of law shared a common feature - they
eyt-,nded the jurisdiction of courts-martial to include offences that
were not of a military character and to cover the trial of civilians.
There were four main elements involved in this process.
Sabotage of Agrarian Reform
The first element was the enactment, pursuaru to the Agrarian
Reform Act of 1969, of the offence of " ;abotage of agrarian reform" to
be triel by A court-martial. If the Wfence was proved, the penalty
provided .wa; for not less than o.e and not more than ten years'
imprisnment. There was no procedure for conditional release.
Al though it may be assumed that this legislative provision was enacted
to combat the possibility that the landowners to be affected by the
act might resist its application, it was, in fact, directed toquite a
different purpose. In fact, in more than ten years of agrarian reform,
it was virtually unknown for landowners to be charged under this pro-
vision, in spiteof the fact that it was public knowledge that there
- 267 -
hadbeenanumberof flagrantcases where landowners
removed goods
(machineryand livestock) thathad beenthe subject ofexpropriation
orders. There were alarge numberof cases,however,where the
accusedwererural farmers,i.e. thosein whoseinterestthe legislation
was supposed to have been enacted.
Suchwas the case,particularly,
for peasantswhooccupied
estates in the faceof thegrindingslownesswithwhichagrarianreform
measuresproceeded insome parts of the country. As maywell be imagin-
ed, this snail's pace enabled landowners who were to be expropriated
to
strip the farmsofcapitalinvestment,
except in avery few isolated
instances.
The same treatmentwas meted out to peasantswho occupied
lands, especially in the highlands, belonging to the new corporations
that sprang up out of agrarian reform. The deep-seated cause of this
kind of action was that communities
that had not benefitted
from the
reform were desperate for more land while the vast land-holdings
of
these corporations
were often inefficiently
farmed or quite simply
abandoned.
Many peasant groups were tried by courts-martial
(7). In
other cases, the accused were not peasants invading lands but wage-
earners of the cooperative
itself whoorganised into unions and under-
took action in furtheralnce
of their claims.
Sabotage of Telecomunications
and Acts of
PoliticalTerrorism
Another legislative
extensionofmilitary jurisdiction
was
contained in the General Teleconnunications
Act of 1971 (Legislative
Decree no. 19020). This legislation
provided that it wasacrime to
bringthe operationsof the publictelecommunications
and broadcasting
services to astandstill.
Again, there was noprovision for conditional
release. Penalties
ranged from a minimum one-year sentence to a maximu:m of three years'
imprisonment.
The third example of this legislative
extensionofmilitary
jurisdiction
related topolitical assassinations.
The legislation
was
setout in Legislative Decreeno. 20828ofDecember 1974. Wartime
("theatre of operations")
procedures
were applicable in such cases,
with the result that all the formalities
were drastically
compressed,
since the investigation,
the sentence and its execution had to be
completedwithin48 hours fromthe beginningof the criminal investiga-
tion. Sanctions were also drastic: death, in the caseofdeathor
wounding of the victim; imprisonment
for not less than 25 years, if
anymateoial
damage was causer; and imprisonment
for not less than 20
years for a mere attempt, even if no harm was incurred. There were
neither conditional
release, suspended sentences nor parole.
Attacks InvolvingLiomnbs or Explosives
The same Legislative
Decree, no. 20828,providedformilitary
(7)Article 282 of the newConstitution
statesthatmilitary
jurisdiction
is not applicable
to civiliansunless there is
astate of externalwar.
- 268 -
jurisdiction in casesofattacksonhumanlife involving bombs or
explosives. The samesummaryprocedureswereapplicablein suchcases
as in the previous ones. In thefewinstances in whichacts thatmight
be consideredas fallingwithin the scope ofthis offenceoccurred,
preliminary investigationsnever led to the actual indictmentof any-
one. Thus, the persons responsible for the explosives found on two
Cuban ships in 1975, those located in the residences of Cubandiplomats
and those in the homes of two ranking officers of the navy considered
to be "leftists" (Vice-Admiral Arce Lrco, in 1976, and V'ice-Admiral
FauraGaig, in 1975) seem to have gone unpunished.
According to some observc-c, the legislation under discussion
was intended to cover cases inwhich the political orientation of the
act was exactly theoppositeof that underlying the attackswhich
actually tookplace. Ithas been saidalso that the authoritiesprefer-
red to optfor silence in these cases because of the inv. vement of
members of the armed forces, particullrly of the navy, in the alleged
criminal acts.
ExtensionThrough Judicial Decisions
Wnereas the legislativeextensionof the jurisdictionof the
courts-martial can b" catalogued with precision, this is not the case
as regards its extension t:hrough judicial interpretation. Access to
records of proceedings of mi i tary court , whether in respect ofdecided
cases or those still )ending, isveryditfi cult. It can neverthelessbe
deduced from inforamation availableand the experience of the last few
years that case; of apolitical nature were increasingly brought within
the definition of the crimesof "attackon the nation, its symbolsand
the armed forces;"
Cases of public ,lemonstraitions (offLcial,,ly known as "disturbances
of the peace") were brought under military jurisdiction on the basi; of
such incidental elements as the fact thAt, during the ,emonstration, tracts
and handbills were distributed criticizing the gOVernment or the President
of the Republic. The vari us teachers' strikes during the last ten years
re consistently the subject of court-martial proceedings ajgainst the
leaders. Situationsof soci al unrest:, during which there was conflict
betweenpolice forcesand demons trat:ors in the heatof massprotest,
werebrought within the scope of the crime ca11ed "attocken the armed
forces".
Thi:; exter:nsion by jiudicial decision conferred on the armed forces
apractically impenetrableprotective mantle of great significance in
situationsof crisisand social upheaval. Not only did itserve to extend
their jurisdiction, it alsosheltered themwhenproceeding.were instituted
against them from tioe to time in the or]inary courts for damage incurred
by the cci ilian po:pulation and caused by the armed forces. Wlhen sectors
of the population were injured by act; of the no]ice that.were indubitably
in violationof the law, the ordinarycourtsdeclined jurisdiction in
most: cases on the grounds that the accusedweremilitary personnel. There
was a single exception, a case which took place in,1976, in which those
responsible for the death by torture of A young student, ternando Lozano,
were finally brouuhtbefore the ordinary courtsand sentenced to aterm
of imprisonment. Afewweeks later, however, the government issuedan
Act of Pardon. In most cases,matters werehandled in the same mariner as
acase in the community ofSan JoandeOndores,wherethe policemencharged
- 269 -
for an assaultand evictionwithjudicial warrantwhichresulted in the
death of two peasants, anumber of woundings and loss anddamageamountinc
to some US $ 1,20,000, were not tried in the ordinary courts. The
ordinary courtsrefused to pursue the criminal proceedings
initiated
before them, alleging that the accused were members of the police force
and bad, therefore, to be tried by the competent police authority.
The 1979 Constitution
provides that civilians shallnot be sub-
jected to military jurisdiction (section 2821. It provides further
that there shall he no death penalty, except in cases of high treason,
while the country is in a state of war. This constitution
was approved
by the Const ituent Asr.ribly on 12 July 1979 and came into full effect
on 28 July 1980. The Constituent
Assembly itself excluded sor of the
chapters (8) of the const i tution [rem irmnediate entry into effect. The
military government , for its part, "took note" of this partial entry into
force of the const itution and dciOed that the full enry, into effect
woul take place on 2H July, 198n. Among the provisions of which the
executive specifinilly "took n toe" were those pinhibiti,e'tie death
penalty and those rumovi's civilians irom military jurisdiction.
The
subsequent practice of the mi IitAry authorit ies demonstrated,
however,
that as far as they were concerned these provisions were of no effect.
During the latter mnths of 1979, the ,apreme Court was seized
of the case of two young people of left-wing leanings accused of having
murdered a pnliceman. The Alvocate-Genera1
(of a miitalry court) called
for the death peailty for one of the accused, Itymundo Zmlabria. The
other accused, ,hm to Ariapana, was a minor when the offenco with which
he was chargedm committed, so, in his sane, only imprisonment
was
requested. Fime ky quontion as to the effect of the constitutiora
l
provision ,ncting th..t civiiiais should not be brought before military
tribunals was thus posed cocretely and dramatically.
At the same time,
the Advocatei-Geerial,
by call hig for tile desth penalty, ignored the
constitut ion~ll provision prohibiting this sanction. Thanks in large
measure to the r.mnute of domestic and international
public opinion,
the ccurt fin ,ll refused to retain the death penalty and sentenced
Zanabria to 25 years' imprisonment.
In the reasons for judgment, how-
ever, so mention is made of the constitutional
provision, the only
grounds invoked being extenuating circumstances
making the death penalty
inappropriate in this case.
V. THE NEW CONSTITUTION
AND HIAM RIGHTS
After the entry into force of the newConstitution
(July1980),
democracy was consolidated
unler the leadership of President Belaunde
(8) The chapters concerned aire two of those contained in the Part on
"Basic Rights And Duties of the Individual",
cap. I entitled "Of
the individual" ani cap. 7entitled "Of Political Rights". Sim-
ilarly, cap. Vil on Agrarian Reform in the Part on the Economic
Order. Also sections H37 (providing for the supremacy of the
constitution
over the legislation thereinmentioned), 285 (pro-
hibiting the death penal1ty) and 282 (providingthat the Ccdeof
Military Just ice is W51 applicable to civilians).
It covers also
the general amd transitional
provisions.
- 270-
whotookoffice in July 1980, following 12 yearsofmilitary rule.
The newConstitutioncontains along and exhaustivelist of
human rights, making it particularly wide-reaching in comparison with
the general run of 'onstitutions. Two reasons can explain this. After
12 years of military governmert the population was tired of military
rule and was anxious to enshrine is many human rights in the Constitution
as possible. The second reason is an externial one, refnulting from the
fact thit during the period in which the deliberations of the Constituent
Asmby to,k pl ec-, human rights issues were particularly focussed and
debated in internationali circles, ansd the military government was most
Anxious to improve its international image.
':h,jrter I o. Part I contains the list of individual rights: to
life, to equalit ' before the law, to freedm of conscience, freedom of
information, opinion, expressiori and publi(ation, the right to personal
and family privacy, freedom of intellectual, artistic and scientific
creaotion, the inviolaibility of private property, of private papers and
commUriPcJti rs, free chicp,of residence, freedom of movement within the
nil i"TIAJ terri tory And to and trom the country, prohibit ion of exi le,
i o' 1ssembly, - r'o), A of issociition, freedom to aspire to a standard of
'ivingr-iooto to ensure ell-beiiig, pairticipation in the political,
e .. Cr.iic , 'o,-iail ai -ulturAl life of the 'country And personal freedom
And, sec'urity..
;% ; regar : to the right of personal Ireedom Ard serurity, the
following rit ir rights are oliiused inter al ,A:not to be tried for
.1 rii.il rt Omi-, which fie of was not con- .- or ior At time commission
*; 5hr,,d t 1 5 ; 1r innocent such is , ,' rimlll to prtiiurd until time found
trpet e-ri) i ie toaA (itIi Ity ,, ., I t of I iw; arrest except pursiuuatit
'iji warrant or luring the ,tu l commission of an offence; in all
ci; ,A person in cu;stod' must be brought before a judge within twenty-
tir h ,sr C& arre;t (exCrOet for cise: of . . . totrorismi, espionage and
i llog., trafficking in drugs", dis-usscd below); the right of every
' on pursof to he islfrrme irnodiately owd in writing of the grounds
n! his the riht of a jet iined per-on to coimulcate with, and
-or,nse ihrd hy ,I Ilow'er of hi, choice as from the time of his
.ing rrfsted or halr jo-; prohiLit ioi igaint: holding prisoners inco-
.- u~ni,,A,<o id the ury o! the itithorities to inform those concerned of
I p[,-, o: IetPio:1 of A r)<r;on itr ctisody; nullity of statements
~tii' thr-(di i inpo:sihilit of being transferred to 'in 'n:';
7
a
!-is:itiw r t pro-id' I And of being judged under pro-
'edurr 0,' 5cr thin !11-:- 'iily pto1 ided for b., law; no extraordinary
*riiuni!:; )t s!r-i: ,mmissie to he established for this purpose.
!Crh. , iIt0t io FrOf, io's- hat civilians shall not be sub-
.,, to Sii li ' 1uri1di I is (.t in 2W2) . it will be remembered
Q&.t .nwinq t W ye rs af s7 milit.i ow-rnmenf, theat was A marked
1r;, s,i-,I Mt 1'itar"' jls1i, , Ii ,r tribunals progressively ex-
hc 1, , ,-,,, ,: tI, 'f I . ' hich-. re in no way military
cli t;!- ,,' t o! i he ceused were -iviliC ns. (-'e of the
,i '"' I, -'his c. : nitional security", according to
)! 'h- art:1-1 h' uo-es ;0A tool o to, defend -.- not . prepare
* o -sou ; !'' v- in ',, the event of atta:ck from outside, but also
litt&bows utirest i, rn '., to e cf instability anCd which might
1ri,-, .ilhin b(he0 untry.
- 271 -
Section235 ofthe Constitution
provides for theabolitionof
thedeathpenaltyexcept in casesof high treasonwhen the country is
in externalwar (but notunder astateof emergency).
Among the rightsof citizensare the setof politicalrights
in Chapter VII of Part I, such as the right to participate in political
affairs, to vote and toorganisepoliticalparties. In addition, there
are others relating to social security,healthandwell-being (Chapter
III of Part I) , and to education, knowledge and culture (Chapter V of
Part I). Among the rights of workers are the right to security of
employment
(suction 48), the right to establish traje unions without
prior authorization
(section 51), the right to collective agreements
which have the force of law (section 54) and the right to strike (section
55).
The right of insurrection
should also be mention_,d.
Section
81 states that power emanates from the people. The authorities
act as
the people's representatives.
Section 82 states that nobody shall obey
a usurper government or those who assume public functions in violation
of the constitutioni
and laws. Their acts are void. The people has
the right to insurrection
in defence of constitutional
order.
t rhee were
it would
nificant innovation in the daily practice s of the
I[ all rights
applied
represent a sig-
authorities
in respect
of civil libert.ieu. Whilst some of the provisions are not new others
are very much so. Anrexample is the right to he informed of the grounds
of arrest.. This would do away with the frequent cases of political
and trade union personaIlities
being arrested without having the slight-
est information as to the charges against them. Previously, they were
not informed of the charges during the whole time of their detention.
They were junt kept in "preventive
custody" at the behest of the public
authorities.
Another significant
new feature is the right to be assisted by
legal counsel as from the moment of arrest. This constitutional
pro-
vision is an important: tool both for lawyers in the free exercise of
their calling and for the protection of those arrected. The difficult
situation in previous years of legal advisers of trade unions and
political leaders could be singularly improved. The provision
hibiting the concealment:
of detainees by g.iving
pro-
the right of communica-
tion i. also important.
There is, however, an exception to the rule that persons in
custody must be brought before a judge within twenty-four hours. The
exception covers terrorists, spies and drug traffickers who, pursuant
tosection 2,sub-section
20(g), canbe kept in preventivecustody for
up to 15 days. Given the latitude with which governments
sometimes
endow the expressions
"terrorist"
and "spy", there is a danger that the
use of this provision could become a regular practice when dealing
with political prisoners.
Indeed, on12 March 1981, President Belaunde
used his executive powers and passed a leqislative
decree on terrorism
which gave considerable
powers to the Ci 'l Guard, classified terrorists
according to variouscriteria and established
prisonsentencesofup
to 20 years for thoseconvicted
of terrorism. The constitutionality
of
this law has beenquestionedby Church andoppositiongroups.
- 272 -
JudicialRemediesfor theProtection of TheseRights
ThenewConstitutionprovidesfor fourremedies: habeas corpus,
amparo,thepopular actionand the actionofunconstitutionality. Habeas
corpu3 proceedings safeguardthe citizenagainstthe actsoromissionsof
any authority,official or personswhichviolateor threatenindividual
security. Amparoproceedings give protectionagainstthreats or viola-
tionsconcerningotherconstitutionalrights. Comparedwith the 1933
constitution thenewprovision (section295) limits the scopeof habeas
corpus and amparo. Formerly,it couldbe usedto enforceall individual
and collectiverights, not merely the individual freedomsguaranteed by
the Constitution. On the other hand, there is a considerably more flexible
requirement with respect to the definition of the person comnmittinq the
violation. There is nownocondition that the impugned agentmust be a
government official; it is sufficientthat the impugnedact be aviolation
of individual freedoms.
The third remedy, the "popular action", enables interested
qroups to contest rules of a general character, not relating to par-
ticular cases, such as general regulatios issued by the executive, or
issued by regional and local governments and other public law authorities.
It can also be used to impugn abuse of office and other offences committed
by the judiciary. It covers all the rights recognised 1ly the constitution,
with considerable latittde in respect of the identity of the agent.
Finally, the "action ofunconstitutionality" (section 298)
enables legislation, including laws, legislative decrees, regional
legislation of a general character and municipal byelaws to be set aside
as unconstitutional, either in whole or in part, when they are in breach
of provisions of the Constitution. As iiithe case of the popular action,
the petitioner need not have a personal interest in the outcome of the
action. This action is brought before a new body, the Court of Con-
stitutional Safeguards, composed of three members appointed by Congress,
three by the executive anid three by the Supreme Court of Justice.
Aspreviouslystatedabove,whenadecisiondeclaresalaw un-
constitutional inwholeor in partit mustbe communicated to Congress,
whichis then requiredto pass alawrepealingtheunconstitutional legisla-
tion. If after45 daysno such repealhas takenplace,the unconstitutional
legislationwill bedeemed to havebeenrepealedipso jure. The rangeof
personsempoweredto introduce thiskind ofactionis limited. Petitions
may be submittedby the Presidentof the Republic,the SupremeCourtof
Justice, theSolicitor-General ofthe nation,60members of the ChamDer
of Deputies (ofatotal of180), 20Senators (ofatotalof 60) or
50,000 citizens,whose signaturesare certified by .te NationalElectionsJury.
States of Exception
'Fhe chapter of the new Constitution covering the states of
exceptioncontainsasinglesection, section231, providingfor two
possible states of exception: the state of emergency and the state of
siege. In both cases it is the executive which proclaims the states
of exception and then informs Congress or its Stoading Committee.
Astateof emergency canbe proclaimed in cases of "... threats
to peaceofpublicorder,disastersorserious circumstances affecting
the life of the nation". Itsperiodof validityis for 60days, thus
doublingthe timeprovidedfor in the 1933Constitution. The proclamation
- 273 -
canbe reneweduponexpirationasmany times asnecessarybysimple
executiveorder.
The stateofemergencyhas twoconsequences. First, certain
constitutionalsafeguards relatingto individualfreedomand safetymay
besuspended, namely The inviolabilityofprivatedwellings, freedomof
assembly and freedomof movementwithin the country. Impositionof the
sanctionofexile is explicitly prohibited. Secondly, it is provided
thatduringastateof emergency "... the armed forces shall be res-
ponsiblefor the maintenanceofpublic orderwhen the Presidentsoorders"
(section231(a)). Thus, under the r.rw constitutionalprovision, it
wouldappear that the proclamationofastateof emergency doesnot
automaticallyentailthe transferofpower to the military. This is
left to the Presidentof the Republicto decide.
There are very fewprovisionsconcerning the stateofsiege.
It maybe imposedin time of "... invasion,foreign orcivilwar or
any imminentdanger thereof". Astate of egemay beproclaimedby
theexecutive but only for amaximumperiodof 45days. Approvalof
Congressis necessary for its renewal.
The Congressplays nopart in the declaration ofeitherastate
ofsiege or astateof emergency. It is not evenrequired toapprove
the declaration expost facto. Moreover, its consentis not required
for the renewalof astateofemergency, whichcan, therefore, bepro-
claimedand extended indefinitely solely by decisionof the executive.
TheCongresshas, however, some limitedcontroloveractiontakenby
the executiveduringastateof exception. TheChamber ofDeputies has
thepower to lychargesagainst the Presidentof the Republicor his
Ministers forvolationof theConstittution or otherserious offences
(article183). These charges are thenconsidered by the Senate. If the
Senateagreeswith the charge thePresidentorMinisterwill be suspen-
ded and sentto trial before the courts. The President is not authorised
to dissolvethe ChamberofDeputiesduringastateof emergencyorsiege
(article229). (He cannever dissolve theSenate.)
It is acommon featureofmanyconstitutions thatadeclaration
ofastate ofemergencywill lapse afterafewdaysif ithas notbeen
approved by theParliament,which,if not in session,mustbe recalled
immediately for thepurpose. The historyof statesofexception,not
only in LatinAmericabut inother regions,shows the need forsucha
provision if humanrights are tobe adequatelyprotected. It wouldalso
bedesirableto give the judiciaryan expresspower to enquireinto the
situation ofdetaineesunderastateofexception, in orderto protect
theirlives and theirpersonal integrity. Thiscould bedone bymeans
of alawregulating the functioningof article 231 of the Constitution.
ThePoliticalandEconomic Situations
The1980Constitutionof Perucontainsimprovedprotectionof
humanrights. It is clear that the governmentis makinggenuineefforts
to returnto democracy,but thepath is noteasy. Th;e social andecono-
mical situationhas deteriorated and there existsseriousdiscontent
in the society,particularly amongthe poor. 'rade unions havebeen
actively engaged,includingstrikeaction, and the Congress isdiscussing
anewlawregulatingtheright to strike. Theoppositionhas alleged
widespreadcorruption ingovernment circles.
- 274 -
In the cityofCuzco, anindigenousregion, thepolicereacted
harshlyagainstademonstrationofworkers andstudentsprotestingagainst
fare increasesinpub] - transportation. One ofthose detainedwas
Antonio Ayerbe, astudentwho laterdiedinprison. Afterthis serious
incident, the Minister ofthe Interiorresignedfromhispostapparently
because hedidnot approveof the "strongmethods"tobeappliedbythe
police, asdemandedby some leadingmembers ofthe armyand alsomembers
of hisownpoliticalparty.
Thepower todeclareanemergencywas usedfor the first time
in October1981. Apoliticalgroup ofMaoistideology hadperpetrated
anumberof bombattacks in theAyacuchoprovince. Thisgroup,the so-
called LuminousPath (SenderoLuminoso)fromthe name of anewspaperin
Ayacucho, is in factagroupwhichsplinteredfromtheCommunistParty
in 1970. Its memborsadoptedMaoistpositionsanddidrotparticipate
inelections for theConstituentAssemblyin 1978. With the appearance
of terrorismin Ayacuchothe policeinvaded theNationalUniversity in
Huamanga, searchingfor armsandweapons whichthey didnotfind. The
Universityauthorities stronglyprotested againstthe invasion,atthe
same time denouncingthe terroristactivitiesof the LuminousPath.
This situationled the government toproclaimastateofemergen-
cy in the Ayacuchoprovince at thebeginningof October 1931. The
Commissionof HumanRights oftheChamberofDeputiespublishedareport
expressingtheir concernabout the situationanddescribingsomecases of
violationsofhumanrights inAyacuchoprovhince following thedeclaration
of the stateofemergency.
VI. CONCLUDINGNOTE
Like the majorityofLatinAmericancountries, Peruhas, through-
out its history, lived through variousstates ofexceptionthat,whether
pursuanttogenerallegislation onemergenciesor otherwise,'havebeen
in breachofcivil rightsindifferentwaysand undervariousforms.
Theplain factis thatperiodsofrelativeobservance ofconstitutionality,
which is the watchdogofcivil rights,have beennotoriouslyfew andfar
between. As has beenpointedout,however, not all of theserestrictions
onhumanrightshave beenunconstitutionalin character. The constitution-
al provisionauthorisingthe "suspensionof safeguards"or, inthe new
constitutionalterminology, theproclamationthat the country is undera
stateofemergencyorastate ofsiege,are sowide as to constitutea
kindof blankchequefor theperpetrationofabuseson thepopulation.
In this context,an interestingquestion ariseswhich has two
facets- ontheone hand, theveryexistenceofstatesofexceptionand,
onthe other, the constitutional andlegislativeprovisionsgoverning
thesestatesof exception. The firstissue i notreallyalegal or
constitutionalone, becauseitis theacutes.:ial conflicts thatarise
andwill inevitably continueto arisein societiesfoundedondeep-
seateddisparitiesthatare at the rootof thevarioussituations of
exception. Thesedisparitiesare tending,unfortunately, tobecomecon-
stantly moreacute. Indeed,the deteriorationin the standardofliving
ofthemassof the populationhas alreadyoversteppedthe limits ofwhat
isconceivable inmanypartsof the globe.
- 275 -
The civil ormilitary
powergroupsthatrule inthis typeof
society
haveatendency
to use statesofexception
asameansofperpet-
uatingsituations
thatare inherently
volatile
andexplosive.
In this
sense, itwould seemto beobvious
that to overcome
theuse and abuse
ofstatesofexception,
the problems
whichgive rise to recourse
tosuc.
measures
haveto be confronted
andresolved.
Nevertheless,
what takes placeon the legislative
plane isnot
without
significance,
eveninthe social andeconomic
situation
ofsuch
countries.
Legislation
provides
animportant
meansby whichboth the
effectiveness
of certain
rights of the individual
canbe increasingly
protected,
and some kindof limitation
canbe placed
onabuseofpower
by the authorities.
The firstand indispensable
requirement
to this
end is that the legislative
provisions,
be they in the constitution
or
inregular
legislation,
shouldbe clear andprecise
so that they cannot
be misused
because
oftheirambiguities.
Such provisions
shouldalso
indicate,
as precisely
as possible,
what theprerequisites
are for the
proclamation
ofastateof emergency,
or, ingeneral,
anystateof
exception.
Asregards
the procedures
Ior the proclamation
of sucha
situation
of exception,
the time limitsand powersof the executive
should alsobe clearly
defined.
Finally,
theremustbeprovision
giving
the citizen
access to legalprocedures
and judicial
bodiesby meansof
which hecan, if necessary,
contest
abuses
of lawduring the life of
the stateofexception.
It ispossible
to outline
the elements
that shouldunderlie
the
drafting
of provisions
oneachof thesematters.
Withrespect
to the
prerequisites
for the proclamation
of astate ofexception,
theseshould
clearly
consist
ofexceptional
events orcircumstances
ofparticular
gravity.
Theseconditions
must, moreover,
be rehearsed
clearly
in the
preambular
considerations
of the legislation
proclaiming
the stateof
exception.
Thislastpointis important
soas to makeit possible
to
define the scopeof the r6gime of exception.
It provides
abasis for
resisting
possible
acts (bythe administration
or thepolice)
fc1mally
invoking
the state of exception
but whichbear norelation
to theevents
underlying
it, either because
of thenature of theviolation
orby
reasonof the kindof act committed.
Theprocedures
for the proclamation
ofastateof exception
are
alsoof fundamental
importance.
Inthis connection,
experience
shows
thatgranting
wide discretion
to theexecutive
inthis area canfrequent-
lylead toabuses.
Morepower in this respect
should,
therefore,
be
given to the legislature
in viewof theserious
implications
ofastate
ofexception.
The samepoint shouldbe madewithregard to the length
ofperiods
ofexception.
In this connection,
the rule couldbethat a
state ofexception
can beproclaimed
bytheexecutive
in the first
instance,
but subject
to the obligation
to convene
Parliament
withina
short time for the purpose
ofendorsing
or rejecting
this measure.
In
anycase, the measure
should notbe forlonger
than30days andbe re-
newable
onlywith theconsent
ofthe legislature
and withthesupport
ofat leasttwo-thirds
ofitsmembers.
As regards
the discretion
of the executive,
the issueis un-
doubtedly
one ofsomecomplexity.
Atleast onematterof central
importance
must,however,
bementioned.
Underno circumstances
(except
foreign
war) should
the executive
beempowered
to delegate
itspowers
to thearmed forces.
Thispresupposes
alsothat underno circumstances
should military
tribunals
take jurisdiction
overcivilians.
There
- 276 -
mightbeanexception, ofcourse,with respectto offencesofamilitary
charactercommittedduring foreignwar.
One finalmatter shouldbementionedand thatis the necessity
thatthere be special judicial instancesandprocedures for the citizen
to contestsuch abusesof lawasmay be committedduringtheperiod for
whichastateofexceptionis in force. Anyadministrativeor police
act againstindividualsor institutionsor in relation to eventsthat
are notconnectedwith the causesunderlyingtheproclamationof the
stateofexception,shouldbe opento contestationby the injuredparty
or his familymembers,and the same shouldbe the case for actswhichare
manifestlyout ofproportionwiththe groundsfor the state of exception.
Thepurposeofsuchactions shouldbe immediaterestitutionof the rights
violatedand appropriate sanctions againstthe authorities responsible
forthe impugned act.
These generalconsiderationsdo notpretend,ofcourse, to be
valid forall countries, giventhewidevarietyofexistingpolitical
systems andsituations. There arecertainlymanyotherbasicconditions
that shouldhave to bemet inalargenumberof othercountries. At the
same time, i.nplaceswhereviolations ofhumanrightshave sunk to
completebarvarity, lessambitiousaims,more consonantwithwhat is
practically re lisableat thisstage,willhave to bepursued- at least
in theshort teim.
-0-0-0-
- 277 -
STATESOFEMERGENCY
INSYRIA
CONTENTS
I.
II.
Page
INTRODUCTION..........................................
279
CONDITIONSAND PROCEDURESFORTHE
PROCLAMATION
OFASTATEOF EMERGENCY....................
280
IllI. POWERSOFTHEPRESIDENTANDOTHER
AUTHORITIES
UNDERTHEEMERGENCY.........................
281
IV.
V.
VI.
ARRESTANDDETENTIONUNDERTHESTATEOF
EMERGENCY............................................
THEEFFECTONTHEJURISDICTION
OF
THEORDINARYCOURT.......................................
THEGENERALIMPACTOFTHEEMERGENCY.....................
283
284
285
-O-O-O--0-
- 279 -
I. INTRODUCTION
WhenSyriawas partof theOttomanEmpirenoemergency legislation
existed; all crimes anddisturbanceswere handled byrecoursetoOttoman
penal law,whichhadbeen ineffect throughoutthe entireempiresince
1854. At the beginningof this century, tnemovementfor liberationfrom
the OttomanEmpire became increasingly important,particularly inSyria,
Lebanonand Palestine. Jamal Pacha (wholater came tobe knownas "Jamal
the Bloody") promulgatedaroyaldecreecreatinga"martialcouncil"at
Alia, Lebanon,and variousleaders of the Arabrevolution werebrought
before thiscouncil for trial. Twenty-oneof these leaderswere sentenced
bythe council and executedon6May 1916, adatewhich is still remembered
as the "Day of theMartyrs" intheArabworld. This royal decreecan be
consideredthe first manifestationof emergency legislationormartial law
inSyria (orLebanon).
With the endof Ottomanrulecame the colonisationof these two
territoriesby Franceand the commencement of theFrenchmandateon24
July 1920. Syria (and Lebanon) then became subject to laws promulgated
by the presidentof France, includingthose relating to states ofemer-
gencyor siege. Thus Decree No. 415 of 10 September 1920provided that
actscommitted againstthe occupationforces came within the jurisdiction
of French military tribunals, created in Syria and Lebanon and composed
of Frenchmilitaryjudges. in 1923, the Frenchoccupationauthorities
promulgated a decreebringingintoexistence martial councils,the first
effort to install emergencyrule inSyria. From1923 onwards several
laws were adoptedpursuant to this decree concerninginter alia the pro-
tectionof the Frenchoccupationforces, the betrayal ofmilitarysecrets
and the regulation of the sale and pos~ession of weapons.
At the onset of the Second World ',ar,Decree No. 233 L.R. was
promulgated, imposing martial law throughout the territoryofSyria and
Lebanon. This wa-,followed by other decrees regulating security matters,
essential supplies, civildefence, lighting,the use of violenceand the
creationofmilitary tribunals and the procedure to beapplied therein.
This collectionof decreescan be consideredas constituting astate of
exceptionwhich remained inforceevenafter the end of theFrench
mandatein 1946 and continuedto beapplieduntil the beginningof the
PalestinianWar on 15May 1948, whenDecreesNos. 400and401 were prom-
ulgated. The first concerned the proclamation ofmartial lawin general;
the secondproclaimedmartial law for aperiodof six months. Several
decrees, both organicand executory,followedconcerning various
measures necessitated by the staLeofwar, includingcontrolanddefence
alertness, blackouts,propaganda, the banningoftravel abroad and in
zones where militaryoperationswere taking place,and the callingupof
doctors,nurses,engineersand technicians.
In June 1949,DecreeNo. 150 concerning the administrationof
martial law and defining the jurisdiction ofmilitary tribunalswas
enacted. Without expresslyabrogatingDecree No.400of 1948, it reit-
erated allsubstantive provisionsof the earlierDecree. It remained in
effectuntil after the unionwithEgypt, throughoutaten-year periodof
legal andpolitical instabilitywhichwitnessed four militarycoups and
the promulgation of two newconstitutions (in 1950and 1953). Theunion
betweenSyriaand Egypt tookeffect inFebruary 1938and anewprovisional
constitutionentered into forcethe following month. On 27 September
1958, DecreeNo. 162was promulgatedabrogating the emergencydecreeof
1949andproclaiming anewstate ofemergency.
- 280-
InSeptember1961, amilitarycoup in Syria led to thedis-
solutionof the union,and Decree:o. 1of 30 Septembersuspendedthe
provisional constitutionof 1958 and the 1950constitutionwas restored.
On 12 November 1961, anewprovisionalconstitution,
to come into
effectafter approvalby referendumon 1-2 December 1961, was decreed.
It provided, inter alia, tiiat :
Aconstituent assemblyfor thepurposeof drawingupa
permanentconstitutionwould beelected by secret ballot
in 53 constituencies.
All men and women of 18 or over, the
police, and certain otherspecifiedcategories would be
able to vote. Theassemblywould have aternof four years
andwould meet within10 daysof tire publicationof the
electionresults. It wouldcompletethe task ofdrafting
anowconstitution
withinsix monthsandwould thereafter
transform itself into a legisi ativ assembly.
On 1-2 December, the pro'isionl1 constitution%.as adopted and
the constituentassembly:met fur the first tire on 12 Dece:mber 1961.
Another militar7 coup in larch 1962 prevented this project from
being carried to completion. The new governmentwhich was then appointed
dismissed the constituent assembly. The 1950 constitution
- whichhad
been reinstated - wsamended. C*n 22 December 1962, the govern:rent
promulgatedDeacree o. 51, ntitled "Martial mwe". It ,brotwa] the
emergencycereethen in effect, Decree::(. 162 of 1959, an] enunciated
the new conditionsgoverning the promulgation of states of exception.
its provisions regulate tihe present state of emergency, which wasdeclar-
ed an 8 March 1963 and in a sense it may he consilered the hasic lw of
the country non only because its provisions override tho:;e of the
constitution,
but a1lso in that itha; been constant in aperiod when the
country has known a succession of constitut.ions :
- the provisional constitution
adop~ted in Atpril 1964 was
suspendedon 25 February 1966 by the Regional Command of
the Ba'athArabSocialist l'arty followinq a military coup;
- thenewprovisional constitutionofMay 1969 was amended in
February 1971, afterabloodless military coup;
- the present constitutionwas officiallyput intoeffect
by a presidential decree of 14 :larch 1973, a national
referendum having taken place three days before. The con-
stitutionhad beendrafted by aPeople's Council (the
parliament) whosemembers had been designated by a
residential decree issued on 16 February 1971.
II. CONDITIONSANDPROCEDUPES FOR THE PROCLA!.ATION OF
ASTATEOFEMERGENCY
The president's power to declare states of emergency is set
forth in article 101 of theconstitution of 1973, which states that
he "candeclare and terminate astate of emergencyin the mannerstated
in the law" (1)
(1) English translationby AhuredFazaoui in "Constitutions
oftheWorld"
- 281 -
The conditionswhichwarrantdeclaration of astateofemergency
are not furtherdefined. Article1of Decree No. 51 of 1962enumerates
three conditionswhichpermit the proclamationand application of martial
law : astate ofwar; the threatof war; or dangerto security or
public order, inall orapartof Syrian territory, by reason ofin-
ternal troubles or naturaldisasters.
Article 2 provides that the declaration be made by the council of
ministers presided over by the president of the republic, that it be
approved by two-thirds of the council, and that it be presented to the
parliament at its next session.
Two amendments to this procedure made by Decrees Nos. 147 and
148 of 23 October 19.37, facilitatethe proclamationof astateof
emergency. Decree 'lo. 148 permits the declaration to be made at minis-
terial level :by the minister of defence in case of war or threat of
war, by the minister of the interior in case of threat or risk of threat
to national security and public order, and by the "minister concerned"
in the case of natural disasters. Thus a state of emergency may be
declared as soon as one of the three conditions specified in the Decree
of 1962 appears imminent, or as soon as the authorities fear fc- the
publicorder in all or partof the national territory.
The second amendment provides that all decisions taken by the
council of ministers shall be made by a simple majority, the vote of
the presidentof the council being decisivein the eventof atie.
Since this rule is expresslystated to prevail over all pre-existing
inconsistent law, it follows that the tro-thirds majority established
inDecree No. 51 of 1962 is no longer required. A stateofemergency
can thus be declaredby aministerwithi the agreement of asimple
majority of those present in the council of ministers, provided that a
quorumof 50% is present.
The proclamation must then be submitted to the parliament for
approval. if it is approved when the parliament meets, it remains in
effect. If it is not approved, it terminates asof the parliamentary
non-approval. However, the non-approval is prospectiveonly. The
parliament has nopower to affect thevalidityof the emergencyduring
the period from its proclamation to thevote of the parliament. Assuming
it is approvedby the council ofministersand the parliament,the state
ofemergency is terminatedonly by the decree ofthe authority who
initially proclaimed it. It i3 ofunlimitedduration,and there isno
requirementof periodicre-submissiontoparliament forapproval. The
decreeinstitutinqastate of emergency likewise cannotbequestioned
in any court of law.
III. POWERS OF TEPRESIDENT AND OTHER
AUTHORITIES ;NDER THE EMERGENCY
Thestate ofemeigencydeclaredon8March1963 centralises
and greatly augments the powerof the executiveatthe expenseof the
other branchesof power as well as of the rights ofthe citizens. All
security forces, internalor external, are put underthe controlofan
emergency lawgovernor (tobe appointedby thepresidentof therepublic)
(2)andwhohas the powerto declare martial law ordinances inwriting,
(2) LawNo. 51 of 1962, article 3(a),
- 282 -
personallyox through subordinates. These ordinancesmay concern, inter
alia :
- theplacing of restrictionson the freedomofindividuals
in respectofmeetings, residenceandchangesofresidence
involvingpassagethroughparticular places atparticular
times;
- the precautionary LzArest ofsuspectsorofanyone
endangeringpublicsecurityand order;
- the authorisation toinvestigate personsand places;
- thedelegationof these tasks to apersonofhischoosing;
- the censorshipofletters and all communicationsand the
priorcensorship ofallmeansof expression,propaganda
andpublicity, such as newspapers and periodicals,which
can beseized and confiscatedand have their futureissues
suspended,and theirplacesof operationclosed;
- the opening andclosinghours of publicplaces;
- therevocationof permitsand the seizureofweapons,
munitionsandexplosives;
- the evacuationor isolationofcertainregions;
- the limitationor controlof communicationsbetweendifferent
regions;
- theassumption ofcontrol ofanybuilding;
- the surveillanceof organisationsor establishments;and
- thereschedulingof thepayments,debts andotherobligations
of anypersonwhosegoods havebeenrequisitioned. (3)
Allmartial lawordinances are by natureadministrativeacts,
but while some are purelyadministrativeothers are considered
"sovereignacts" ("actesrelevantes de la souverainet6"). All ordinances
ofgeneral applicability,such asdecrees institutingatotalcurfewfor
alimited period (whetherin aparticularregionor theentirecountry),
thecensoring ofnewspapersandpostal correspondence, the withdrawal
ofarms permits,and the confiscationofarms fallwithinthe latter
categoryand as "sovereignacts"cannotbe attackedfor abuse of
authoritynor challengedbeforeany forumwhatsoever.
Individual measuressuchas the expropriationoroccupation of
abuildingare "non-sovereign"orpurelyadministrativein nature.
Any citizen can therefore appealto theCouncilof State in its
capacity as supremeadministrative tribunal todeclare illegalor
suspendthe applicationof this type ofmeasure.
(3) Ibid., article 4.
(suchas the constitution
of the SyrianArabRepublicof 1973, the
PenalCodeand the CodeofCriminalProcedure)wereshownto be fully
compatiblewiththe obligations arisingfrom the International
Coven-
ant. In 1979, Syriasubmitted asupplementary
reportand the Human
Rights Committeeexpressed it.,concern about the stateofemergency,
the Courtof State Securityand the failure of theSyriangovernment
to informthe Committee ofthe obligations
fromwhichderogations
hadbeen made under tile state ofemergency, as requiredby article4
of the Covenant.
In response toanumberofquestions posedbymembersofthe
Committeeduring theconsideration
of the 1977 report,the Syrian
representative
stated that torture was punished under law and that the
death penalty was limited to the most serious crimes and rarely
implemented.
Regarding tle state of emergency, the Syrian representative
alleged that the emergency measures had been adopted for purposes of
state security.
Despite this claim, it can be said that the purpose of the
measures enforced i, less to preserve state security than to suppress
the strong opposition to the government's
3a'ath party ("leading party
in the society and the state" according to art le 8 of the 1973
constitution)
and the armed forces, dominated by Alawites, a sect of
the Shia branch of Islam, who represent only 21. of the total population.
The largest opposition sect is the Sunni 'Ioslems, and in particular the
Moslem Brotherhood which has be-en held responsible
tr acts of violence
and political assassinations
from 1976 onwards.
Other opposition movements include, inter alia, divergent
branches within the BA'ath Party, the KurdishI Democratic Party, Marxist
groups, 4asserist. and 9ccialist movements.
The communist party is
divided between the Sovi,-t-oriented
wing and the branch led by Rind
Al-Turk, which is banned. Protests at the continued repression of
individual rights have been raised, inter alia, by professional
associations,
for example, the Syrian Bar Association,
which called for
a strike of lawyers on 31 March 1980, in protest against the current
situation in the country pursuant to the state of emergency. Not only
were l,,wyfrs arrested, but th: bar association and the association of
medical practitioners,
ca3ineers and architects (whose members supported
the sLLjku were dissolved for "exceeding their mandates". The inde-
pendence which the bar association enjoyedsincc
1972 has been abolished
by adecisionof the government to recontitute
the bar association with
a government-nominated
bar council.
Mis-use of tie detention powers under emergency legislation was
publicly recognised by President Assad himself on 9 March 1978, when he
released 179 people wrongly detained under emergency legislation.
How-
ever, the majorityof thesepersonsweredetained for minor civil
infractions,
and political opponents have continued to be detained under
the conditions mentioned above.
In short, the state cfemergency,proclaimed 20years ago,rot
onlyfar exceeds the restrictions
onliberties normallypermicted to
protectnational security andpublicorder, but violatesinternational
standardsgoverningpublicemergencysituationsthrough arbitrary
legislationand alarmingrepressivemeasures.
- bearingarms in the ranksof the enemy;
- successfulconspiracy or contact with any foreign
country toencourage it to takehostileaction
againstSyria;
- conspiracyorcontactwiththe enemy to bring
about thedefeatof the army;
- attemptto paralysethe country'sdefences in
time oFwaror at the outbreakofwar;
- successfully causing civilor sectarianstrifeby
arming the Syrianpeopleor by arming someportion
of thepopulationagainst therest;
- incitement to killor toplunder premises;
- commission ofaterroristact if it leads to the
deathof ahuman beingor thepartialor total
destructionof abuildingif one or morepersons
are inside.
- decreesNoc. 6and 7ofJanuary 1965 (stillin force)
prescribe :
- amandatorydeathpenalty for certain specified
forms ofcollusion inverbal orphysicalacts
hostile to the aims of the Ba'athist revolution
and foran attack onany publicor privateestablish-
ment, incitement to disturbance,strife and
demonstrations;
- anon-mandatorydeathsentence for "actionsheld to
be incompatiblewith the implementationof the
socialist order in the state whether they arewritten,
spoken or enacted, or comeabout through anymeansof
expressionorpublication" (decreeNo. 6,article
3(a)) andall offencesagainst "legislativedecrees
whichhavebeen or are to be issued inconnection
withthe socialist transformation" (decreeNo. 6,
article3(b)).
- decreeNo. 49ofJuly 1980which is retroactive
interaliadesignatesmembershipof the MoslemBrother-
hood (amilitantfundamentalistIslamicgroup in
opposition to the Syrianr6gime) as acapitalcrime.
AlthoughtheordinarycoL sdohave alimited power to suspend
the applicationof certainmartiallawordinanceson the grounds that
they are inconsistentwith theconstitutionalprovisions in forceor
that theyexceedthe scopeofthe decreedeclaringthe stateof
exception, in general,reviewof the acts ofthe martiallawauthorities
(includingreviewof lawsand martiallawdecrees andof the legalityof
drrests)escapes theirjurisdiction.
VI. THEGENERALIMPACT OF THEEMERGENCY
Althoughaproclamationofastate ofemergencymay restrict
orsuspend certainfundamental rights the followingrights included in
the UniversalDeclarationof Human Rights inprinciplemay notbe
infringed :
- the rightto liberationfromslavery;
Thedangerof suchacontinuous
emergency
rule isthe institutionalisa-
tionof the emergency
itself,and to someextent that hasalreadyoccurred
in Syria.
TheSyriangovernment
has adutyto reviewtheemergency
and
provide foradequate
safeguards
against abuses.
-0-0-0-
- 286 -
- the righttobe recognisedeverywhere as apersonbefore
the law;
- the right toanationalityana theright not tobe
arbitrarilydeprivedof it;
- the rightto marry and to found afamily;
- theright to ownproperty;
- the rightto freedomof thought, conscienceand religion,
includingthe freedomto manifest one'sownreligionor
belief;
- the right to equalaccess tG publicservice;
- the right towork and to rest;
- the right tosocial andeconomicsecurity;
- the right to education.
InSyria, however, someof the rights in the Universal Declaration
have been totally abolished either by law or in practice. Theprovision
that adeathpenaltybe carried out only after a final judgementrender-
ed by acompetent court (7)and the prohibitionof convictionunder retro-
active laws (8) are both denied by Decree No. 49 of July 1980. Moreover,
the fundamental right to life has beer violated by the Syrian Special
Forces units which have carried out mass executions (9).
LJkewise, the prohibition of torture and cruel, inhuman or
degradinr; treatment or punishment is repeatedly violated in the detention
centres where torture is reported to be a common method to obtain a "con-
fession" or to impose punishment (10).
Maltreatment is also inflicted by the "Defence Squadrons" on the
civilianpopulationduringhouse-to-housesearches,and systematic
attacks onprivateproperty - includinqdestructionof houses- are
alsocarried out.
Syria ratified the International CovenantonEconomic, Social
andCultural Rights,as well as the InternationalCovenanton Civil and
PoliticalRights andwas the firststateparty to be examinedby the
Human Rights Committee in. 1977 and 1979.
In accordance with article 40 of the International Covenant on
Civil and Political Rights, Sy-ia submitted a first report to the Human
Rights Committee in 1977, in which the provisions of the laws in force
(7)Article6, al. 2of the InternationalCovenantonCivil and
Political Rights.
(8)Article 15, al. 1of the InternationalCovenantonCivil and
Political Rights.
(9)Forexample, the Palmyraprisonmassacre inJune1980, andsummary
executions in lama in April and December 1981, and in Damascus in
September 1981.
(10)AmnestyInternational Briefing: Syria 1979.
IV.
ARRESTANDDETENTION
UNDERTHE
STATEOFEMERGENCY
Theemergency
legislation
givesthe security
forceswide powers
to arrestand detainpersonsfor an indefinite
period.
Inparticular,
the
emergency
law governor
is entitled
toorder (inwriting)
the preventi-e
detention
of anyonehold to be endangering
publicsecurity
and order.
Thus, amajority
of non-violent
political
detainees
remainwithout
trialduring the periodoftheirdetention,
inthe absence ofany
evidence
againstthem.
Neitherbeforenorafterhisarresthas the detainee
the right
to obtaina copyof the warrant
forhis arrestor tobe notified
of the
grounds
and circumstances
ofhis arrest.
No official
announcement
of
the arrest is published
in the official
journalor in regular newspapers.
Friendsand relatives
are usually not notified
oftheplace ofdetention
until thepoliceinterroqation
is completed,
andsometimes
not even then.
On arrest,
and for the investigation
period,
the political
detainee
is heldin provisional
military
prisons
or in detention
centres
wherestrict discipline
prevails
and solitary
confinement
may be imposed
for an unlimited
period of time, asopposed
to civilian
prisons,
where
no difference
is made in the treatment
of political
and rfmmon lawcases,
and where the conditions
are lesssevere.
The social and financial
staL: ,of the detainee
larqely influence
his conditions
ofimprisonment
as does his relationship
withprisonofficials.
Thus, the conditions
of imprisonment
ofpolitical
detainees
aremainlyindividualized.
While normal priscns
are inspected
bymembersof the public
prosecutor's
office, placesof detention
are under the sole controlof
administrative
bodies and security
authorities.
Theparliament
may
submit to court a requests
for information
regarding
political
detainees,
conditions,
thegrounds
rf imprisonment
and even requests
for release,
but it has no actual control of any kindwhatsoever.
With respect to the legality
ofarrestordetention,
there
two typesofcases. When
are
the arrestis in consequence
of amartial
law
ordinance
and there is a specific
charge, thedetainee
is broughtbefore
a special court, i.e. amilitary
courtor the State Security
Court (4).
At this point, addressing
himself
to the "juge d'instruction"
or thecourt, as the case may be, the accused
can requestdismissal
of
the charges
againsthim. The decision
of the courtonthis requestmay
not be appealed
if the requestisdenied,
the sole avenueopento
detainee
is to reformulate
the same request
to che
the
same authority,
whichhe candoafter the lapseofa periodoftime.
(4) DecreeNo. 47 of 28March 1968,provides
for the formation
ofone
ormore StateSecurity
Courts.
Thesecourts, to be convened
in
Damascus
or inany othercity at theinstance
of the emergency
lawgovernor,
are composed
of a chairman
and a numberofmembers
appointed
by the president.
Article
5of thisdecreegives the
State Security
Court jurisdiction
"overany /other/
casereferred
to it Ly theemergency
law governor".
TheStateSecurity
Courts
replacemilitary
courtspreviously
established
by DecreeNo. 6of
7January
1965,while retaining
the latter's
jurisdiction
over
specified
offences
and crimes.
Thereleaseofapersonsubjecttomilitary arrestordetention
whoisneither charged,ior broughtbeforeany court,canbedecided
onlyby theauthoritywhichhasdetainedhim,wheneverthis authority
deemsit appropriate.
The detaineehas no possibilityof opposingthisprocedure.
V. THEEFFECTONTHEJURISDICTIONOFTHEORDINARYCOURT
Thestate ofemergencyenlarges the powerof theexecutiveand
reduces therole of the judiciary. Theemergency lawgovernorhimself
can decideand imposepenaltiesofup tothree years inprisonand/or
afine ofupto 3,000Liras for violationsofmartial lawordinances
and can bringviolatorsofmartial lawdirectlybefore theState Security
Courts. Hecan alsodecidewhetheror not an ordinarycrime concerns
national security,thusdeterminingwhetherit will be heardin the
ordinarycourtsormilitarycourts. Furthermore,he has thepowerto
determinethe outcomeof aconflictof jurisdiction betweenordinary
courts ind specialmilitarycourts in any type ofcase (5).
Thepresidentof the republicand hisdelegates also havethe
power toask aspecialmilitarycourtto suspendconsiderationofany
case 3ubmitted toit (6).
Certainpowers,ordinarilywithin the sole competence ofthe
ordinarycourts, are bestowedonthe emergencylaw governorbyvirtue
of article 4ofLawNo. 51 of1962, for example,thepower toorder
preventivedetention; to authorisesearches at any time; and toseize
arms.
Politicalcasesare referredto the StateSecurityCourtsonly
when "hard"evidenceexists andcases triedbefore thosecourtsare
usually security-related,such as sabotageor espionage. Whensummoned
before the court- the detaineemaybe assistedby adefence counselbut
is often deniedprior occess to him. Procedures followedfor the trials
before theState 7,curity CourtsaregovernedbyDecreeNo. 47of 28
March 1968. Howe r,accordingtoarticle7(a) of thedecree :"although
the rightsofdefence laiddownincurrent legislationshall beretained,
the StateSecurityCourt shallnot be confined to observethe usual
measuresprescribedfor them/tLerights ofdefence/ in current legislation
in anyof thestages andproceedingsofinvestigation,prosecutionand
trial".
Trialsare heldincameraandproceedings maybesummary. Death
sentences,whichmustbe approved by thepresident, canbe passedand
carriedoutas quickly as twodays after theoffencehasbeencommitted.
Capitaloffencesare embodiedinanumberoflegislativepro-
visions, andthere have beenrecantmoves toincreasetheir number
- thePenalCode contains sevenoffencesagainstthestate
punishableby death :
(5) LawNo. 51 of1962, article8.
(6) LawNo. 1of9March1963.
- 289 -
STATESOFEMERGENCY INTHAILAND
CONTENTS
Page
I. GENERALCHARACTERISTICS
OF' THAIPOLITICS
....... 291
ANDTHEUSEOFEMERGENCYLAWS INTHELAST50YEARS
II. EMERGENCYPROVISIONS INTHECONSTITU'lN (1932-1978).... 291
III. SUMMARYPOWERSOFTHEPRIMEMINISTERUNDER
THECONSTITUTIONS (1959,1976,1977AND1978) ............ 293
IV. MARTIALLAWACT1914.......................................
295
V. ORDERS NOS.1AND 29OFTHENATIONALADMINISTRATION
REFORMCOUNCIL,OCTOBER1976...............................
298
VI. GOVERNMENTADMINISTRATION
EMERGENCYACT1952 ............ 299
VII. COMMUNISTACTIVITIESCONTROLACTS, 1952- 1979 ........... 300
VIII. DECREESISSUEDMARTIALLAW.................................
304
IX. THEEFFECTOFMARTIALLAWONTHEJUDICIALSYSTEM......... 305
X. THE IMPACTOFTHEEMERGENCYDECLARATIONS..................
305
XI. CONCLUSIONS.............................................
307
TABLE I.........................................................
292
-0-0-0-0-
- 291-
I. GENERALCHARACTERISTICSOFTHAIPOLITICSANDTHEUSEOF
EMERGENCYLAWS INTHE LAST50YEARS
Statesof emergency inThailandareclosely relatedto the
internalpolitics ofthe country. In 1932, ahandfulofciviland
military officialsin Bangkokbroughttoanendoneofthe world's
oldest,absolutemonarchiesand institutedasystemcfparliamentary
governmentand limited kingship. In thefollowing50years,Thailand
hasseen about15 governmentsand 13 constitutions. Amongthemain
featuresofThaipoliticshavebeen :
- theuse ofcoups orshifting factionalalignments
rather thanelectoralmethodsto achievemajorchanges
ofpersonnelandpolicy;
- the majorpoliticalrole of thepoliceand armed forces;
- the use ofbribery,graftand relatedpracticesas a
cohesiveforce inthe formationof powercoalitions; and
- theviolence thatgenerallyaccompanies politicalchange.
Thesegeneral characteristicsare reflectedin the useof
emergencypowersbythe shiftingpowerblocs. TableI*shows thatof
thetenemergencies imposedbetween1932 and1977, onlytwowere dueto
external wars. The othersresultedfrominternalconflicts.
Toexplain thenature of statesof emergencyin Thailand,it
is proposed toexamine the MartialLawActandthe EmergencyAct (both
ofwhichgiveextensivepowersto the executive) alongwith the relev-
antprovisionsof theconstitution. Thetemporarydecreesenactedby
thegovernmentin powerduringstates ofemergencyare alsodiscussed
aswellas the SuppressionofCommunistActivities Act,whicharms the
executive withwidepowers creatingade facto emergencysituation.
II. EMERGENCY PROVISIONSIN THECONSTITUTION (1932-1978)
After themonarchywasoverthrown,the TemporaryAdministration
Act 1932wasenacted, authorisingtheRevolutionaryCommitteetocurb
the freedomand libertyofindividuals. Section 29ofthisActprovided
thatincase of emergencywherethe Committeewas unableto convenea
meetingofthe Parliament, andwas oftheopinion thatitwas necessary
toenactalawimmediately, the Committeewasauthorisedtodoso but
such legislationhad tobe submittedto the Parliamentforapproval.
In the 1932 constitution, section53 providedthat theKing
may declaremartial law in accordancewiththe formandprocedure
specified inthe MartialLawActof1914. Thisprovisionwas reiterated
in the 1946 and 1947 constitutions. However,section 152of the 1949
constitutiondeprived themonarchyof its abilityto invokemartial law
byplacing thispower in the handsof themilitaryauthoritiesand the
1952 and 1968constitutionscontainedprovisions similarto this.
Thefirst twoparagraphsofsection 193ofthe 1974 constitution
wereidentical tosection 152of the1949 constitution. But section193
* seefollowingpage
- 292 -
TABLE I
ENO. Dates Areacovered Reasonsfor imposition
ofmartial law
12-10-1932
22-11-1933
to Wholecountry An unsuccessfulcounter-
revolutionled bythe
Monarchists
2 7-1-1941 to
31-3-1941
24 provinces,mainly
in thenorth andnorth-
eastparts ofThailand
Franco-Indo-Chinawar
3 10-12-1941to
23-1-1946
Wholecountry Declarationofwardur-
ing the SecondWorld War
4 30-6-1951 to
6-9-1951
Bangkokand
Dhanbouriarea
Acoup attemptby the
navy
5 16-9-1957 to
10-1-1958
Whole country DeclaredbyMarshal
SaritThanarat after
oustingthe previous
government in acoup
6 20-10-1958
25-4-1971
to Initially inthe
wholecountry.Aftei
1971 itstill existed
in 34 provincesheld
to be communist in-
filtratedareas
The r6gimewas generally
authoritarian,used
extrememeasures
7 17-11-1971to
16-10-1973
Re-introducedin the
wholecountry
8 21-5-1974 to
23-5-1974
Whole country Prime MinisterDr. Sanya
Thammasaksubmittedhis
resignationandGeneral
Kris Sivara,theC.in.C.
of theArmy,proclaimed
anation-widestate of
alertonthe same day.
Dr. Sanyaagreedto form
anewCabineton 23 May
9 6-10-1976to
31-3-1977
Wholecountry Seizure ofpower by the
armed forces after the
studentdemonstrations
at Thammasatuniversity
10 20-10-1977
(on22-4-1979
electionswere
heldand in
August1979
Decree22 which
gavu widepow-
ors to the
primeminister
was abrogated)
Wholecountry Theprevious government
was overthrownand the
newmilitary leaders
declaredmartial law
- 293 -
had anadditional
clausethat stated"tendaysafter thedeclaration
ofmartiallaw,not less than 25 membersofParliament,
eitherseparately
orinajointsitting,
mayproposeto theHouse the removal ofthe
stateofmartial law". Suchamotionhadtobepassedbyan absolute
majority
inorder to takeeffect.
Thepresentconstitution,
which came into force inDecember
1978,hasthe following
emergencyprovision
:
"Section
157. In caseofanemergency
whenthere is
an urgentnecessity
to maintainnational
orpublic
safety -znationaleconomic
security ortoavert
public calamity,
theKing mayissue anEmergency
Decreewhichshall iiave theforceof anAct.
In thenext succeeding
sittingof the National
Assembly,
theCouncil ofMinisters
shall submitthe
Emergency
Decreeto the NationalAssembly for con-
sideration
withoutdelay. If the Houseof Represent-
ativesdisapproves
itorapproves
itbutthe Senate
disapproves
it and the Houseof Representatives
reaffirms
its approvalby thevotes ofnotmore than
one-halfof the totalnumberof itsmembers,
the
Emergency
Decreeshall lapse; provided
thatitshall
not affectanyactdone duringtheenforcement
of
suchEmergency
Decree.
If the Senateand theHouseofRepresentatives
approve the Emergency
Decree,orif theSenatedis-
approves
it butthe HouseofRepresentatives
reaffirms
its approvalby the votesofmore thanone-half
ofthe
total numberof itsmembers, suchEmergency
Decree
shall continue tohave the forceof anAct.
ThePrimeMinister
shallcause the approvalor
disapproval
of the Emergency
Decree tobepublished
inthe Government
Gazette.
In caseofdisapproval,
it shallbe effective
as from the day following
the
dateof itspublication
in theGovernment
Gazette.
The consideration
ofanEmergency
Decreeby the
Senateandbythe Houseof Representatives
in case
ofreaffirmation
ofapproval ofthe Emergency
Decreemusttakeplaceonthe firstopportunity
whensuchHousesholdtheirsitting."
III. SUMMARYPOWERSOFTHEPRIMEMINISTERUNDER
THECONSTITUTIONS
(1959,1976, 1977AND 1978)
Inthe 1959constitution,
section17 vested thePrimeMinister
withenormouspowers tocarbthe opposition
anderadicate
allactivities
affectina
the stability
oftheRevolutionary
Government.
Thisprovision
was introduced
byMarshall
SaritThanaratafterhis successful
coup.
From1959 onwards,
any newgovernment
after overthrowing
the oldone
retainedasimilarprovision
inthe constitution.
- 294-
Section17 ofthe 1959constitutionread
"Duringthe life of thisconstitution,wherethePrimeMinister
is oftheopinionthat, for the benefitofprevention and
suppressionofany subversive activitiesconcerningnational
securityorthe monarchy,or agitationsorthreats to public
ordereither initiatedin oroutside the Kingdom,he may,
with the consentof theCabinet, issueorders, ortake actions
promptly, and suchorders oractions aredeer'ed legal."
Section 21 of the 1976 constitutionwhich waspromulgated after
the 1976 Octobercoupgavethe Prime Minister,subject to the approval
of theCabinetand theAdvisoryCouncil :
"Thepower to issue any ordersand to take anyaction" where
he "deemsit necessary for the prevention orsuppressionof
anact subverting the securityof the Kingdom, the throne, the
national economyor stateofaffairs ordisturbingor threaten-
ing publicorderor goodmoralsor ...... publichealth."
Thispowerapplied retroactivelyand anyaction taken under
itwasto "beconsidered lawful".
Thispower wassubsequentlyusedto condemnpersons to death
withouttrial and to authorise -heirexecution.
Section27 of the interimconstitutionpromulgated after the
1977 Octobercoup,gave the PrimeMinister the samepowersofsummary
executionor otherpunishment as hehad under section21 ofthe1976
constitution.
Thepresentconstitution,whichcame intoforce inDecember 1978,
alsohad asimilarprovisionundersection200,whichread as follows
"Section2bO. From thedateofthepromulgationofthis
Constitutionuntilthe newCouncilofMinisters takesoffice,
inacase where thePrimeMinisterdeems itnecessary for
theprevention, -.
an actsubverting
vertingorsuppressionof
thesecurityof theKingdom, theThrone, the nationaleconomy
orthe Stateaffairsorof anact endangeringor jeopardizing
publicorderorgood moralsor ofanactdestroying the nat-
ural resourcesordetrimentaltopublichealth, whethersuch
act hasoccurredbeforeor after thedateof thepromulgation
of thisConstitution,eitherwithinor outside the Kingdom,
thePrime Miniscershall, withthe approvalof the Council
ofMinistersand the NationalPolicyCouncil, havethepower
to issueany order,or take any action, andsuch orderor
actionas well as actsperformed incompliance therewithskial
beconsideredlawfulaccording to the laws in forceand to this
Cc;istitution.
Haviig issued anyorderor takenany actionunder paragraph
one, thePrime Ministershall informthe National Assemblyof
it.
After theendof the periodoftimeunderparagraphone,
all ordersof thePrimeMinister issuedunder this section
whicharestill in force shall continuetobe in force, and
therepeal ormodificationof thesaidordersshall bemade
byan Act."
- 295-
Neither section 200nor sections21 and 27of the earlier
constitutions
arein forcenowbutwhile they were in force theywere
usedextensively.
ToquoteAmnesty International's
reportof 1979
"Thisextraordinary
power to imposeharsh sentences
wi.thout any judicialprocesshas been usedwith some
frequency,
even in the interimperiodbeLore the
elections.
In January andFebruary 1979,at least
8peoplewere sentenced
to death in thiswayand
another 17 were sentenced
to longprison terms
without trial. Those sentenced to deathwereexecuted
almost immediately."
(1)
According to another report (2)69personswhoweresentenceJ
without trial by formerprime ministers
under thesesections,
were
stillinprison inMa1y 1982. This is inanomaly in thatthe lawsor
decrees underwhich thesepersons werearrested are nolonger in force,
but theycontinue to'be detainedand, in effect,are kept imprisoned
withoutany legal sanction.
IV. MARTIAL T.A. \ArT 1914
This is the main actwhichis usedwheneveran emergency is
declaredand someof itsmore importantprovisions
are givenbelow
"Whenand WhereEffective
to be Notified
Section2. Whennecessityarises to maintainpeace
and ordersothat the countrymaybe freeofdanger
fromwithinand without the Kingdom,it shall be by
RoyalCommand that the whole orpartorpartsofany
sectionor sections of theMartial Law/shallhe notified
tobeenforced/,
including
the fixingoCconditions
in
the application
thereof inany partorpartsorof the
whole Kingdom,and if whenand wherenotification
of
enforcement
is effectiv-
all provisions
inany act or
laws beinginconsistent
withthe provisions
ofMartial
Lawthenenforced shallbe revokedand replacedbythe
provisions
of the MartialLaw thenenforced.
Description
ofNotice
Section 3. If thenotification
doesnotspecify
enforcement
ofMartialLawoverthe wholeKingdomit
shallstateclearlyin whichprovince,districtor
area that the Martial Lawshall prevail.
PersonEmpoweredto ExerciseMartialLaw
Section4. 1;hen thereis awar orstrikein any
(1)AmnestyInternational
Reportof1979,page 114.
(2)Reportofthe Coordinating
GroupforReligion inSociety,
Bangkok (C.G.R.S.),
May1982.
- 296 -
placeor places,the militarychief incommandatsuchplace
orplaceshaving forcesunderhis commandnot less than one
companyorthe chief in commandof afortorastronghold
of anykind in militaryuse shallbe empowered to proclaim
theenforcementof Martial Lawwithin the area limitedto
thecommand of suchmilitary forces; but areportshall be
immediatelymade to the government.
WhenRevoked mustbe Notified
Section 5. The liftingof MartialLawin any placeor
placesshall beeffectedby Royal proclamation.
JurisdictionofMilitary and CivilianCourt ofJustice
whenMartial Law Prevails
Section7. In areas wheremartial law has been proclaimed,
civiliancourts shall continue to have the power to tryand
adjudqe cases as usual exceptthosewhichare under the juris-
diction of courtmartial and whoever is empowered to proclaim
martial lawshall also be empowered to proclaimthe jurisdiction
ofmilitarycourtsover criminalcases in which the offence
coveredinwholeor part and/orpart of any sectionof the
Schedule annexedheretooccurred withinthe areaand during
thetime in whichmartial law is proclaimed. This willinclude
the power to modifyor revoke such proclamation.
Proclamationsconferring jurisdictiononmilitary courts
under the preceaingparagraphshall apply to cases in which
the offenceoccurred onor after thedatespecifieu in this
proclamation. SLCII datemay be the dateof issuanceof the
proclamationitself or some laterdate. Such proclamation
shall be publishcdin the GovernmentGazette.
zpart fromthe saidcases, if acriminaloffenceoccurs
in an areain whichMartial Lawhas been proclaimedandtheie
is aspecialreason concerning the securityof the country
or publicpeaceandorder, theSupreme Commanderof theArmed
Forcesmay order such offence to be triedin the military
courts.
PowerofMilitaryOfficer
Section 8. WhenMartialLawis notifiedtobe enforcedin
whateverdistrict, townand provincethemilitary officersshall
have full power tosearch,to appropriate labour, to forbid,
to seize, todwell in, to destroyormakealterations to
premisesand to carry out the -viction.
Search
Section 9. Thepower to searchis tobe carriedoutas
follows :
1.Tosearchall things to be appropriatedorprohibitedor
seizedorany unlawfuldwellingand possession. The
searchingcanbe carriedouton any person,vehicle,
dwellinghouse,buildingor anywhere and atany time.
- 297 -
2.Tocensorall communications
byletter, telegraph,or
package sent toor fromwithintheareawheremartial
lawis enforced.
3. Tocensorbooks, printedmatter, newspapers,
posters
orliterary works.
Appropriation
Section 10. The powerto make appropriations
shall be
madeas follows :
1.To appropriate
labourfromcivilians to assist
military forces in any workwhich is related to the
defenceof the realm or assistin military service
in all respects.
2.To appropriate
vehicles,beasts ofburden, provisions,
armsand implements,
toolsandequipments
frompersons
orcompanieswhichthe militaryservicemay require
foruse in the forces at thattime.
Prohibition
Section 11. Thepowerto prohibitmaybe carriedout
as follows :
1.To forbidholding ofmeetingsandgatherings.
2.Toforbid issuanceofbooks, printedmatter,news-
papers,literaryworks.
3.Toforbidpublication,
entertainment,
receivingor
emittingofradioor television.
4.Toforbidthe use ofpublicwaysfor communication
whetherbymeansofland,waterorair, including
anyrailwayor tramq-, used forpublicconveyance.
5. Toforbidpossession
orutilization
ofany
communication,
instrument
or arms,partsofarms
and chemicalproducts or otherswhichwillcause
dangertoperson, animal,plantorpropertyor
whichcan beused to producechemicalproductsor
othersof thesame qualification.
6. Toforbidthe stayingout ofhisdwellingplace
by anyperson duringthe curfew.
7. Toforbidanypersonenteringor dwellinginany
districtwhich themilitaryofficers/find it
necessary to clear for purposesof7battlestrategy,
suppression
orthe maintenance
of peaceandorder.
Whenand after theprohibition
is notified,persons
who live in the saidarea shallevacuateitwithin
the prescribed
period.
- 298 -
Claims orFinesmaynot be DemandedfromMilitaryAuthority
Section 16. ;;here any damagearises fromthe exerciseof
power by the armed forces as referred to abovein Sections 6
to 15, no person nor company may claim damages nor compensa-
tionofany kindfrom the armed forcesbecause all power so
exercised by military officers in the carrying out of their
duty under Mlartial Liwamounts to the defence of the King,
country and faith. Progress, liberty, peace ind order is
preservedby the armed forces freeing the countryof the
enemy from within and without thc, Kingdom."
V. ORDEPS NOS. 1 AND 29 e: THE :'ATIONA!, ADMTNIIS7RATI'/t
REFORI. COUNCIL, @CTOItCR 1976
These two decrees, issued by the N.ationi1 .dministrative
Reform Council (N.PC) , enliarqed the Jurisdiction of the military courts.
Order :o. I transferred a lar. :)art of the criminal jurisdiction
from the civilian courts to military tribunials. in particular, it grants
jurisdiction to the military courts over the following specific offences:
- offences which harm the 'ing, queen, Crown Prince and the
}ing's Regent;
- offenceswhichaffect the national securitycommitted
withinor without the Xingdom;
- offenceswhich affect foreignrelationships;
- offenceswhichdisrupt thepublicorder, suchas gangster-
ism,conspiracy to threatenotherswith weapons, instigate
disorder,etc.;
- offenceswhichcause danger to others;
- sexualoffences, for instance, to procureor deceive
womenorgirls for sexualpurposes ...;
- murder;
- assault; and
- offencesagainstproperty, for instance, bag-snatching,
blackmailing,armed robbery."
OrderNo. 29 reads as follows :
"At 7.00p.m.on6October1976, the NARCdeclaredMartialLaw
andordered thatparticular typesof criminaloffence foll
within the jursdictionofmilitary courts. Nonetheless, there
arepersonsor groupsof personswho instigatedisordersand
unrestandbehave in such amanner as toendanger society
and threaten the lives andpropertyofother people. in order
to suppress andpreventsuchcrimes the1ARCdeems it
necessarytomakejudgmentsand ordersofthe militarycourt
immediatelyeffective,therefore :
- 299 -
1. All offences
whichfall under the NARCOrder No. 1are
tobe withinthe jurisdiction
of the military
courts
withno rightofappeal.
2. Defendants
underthe first categoryof offences
can
have alegalcounse.lor
as representative,
except in
the casesprohibited
by the Military
Court Procedure.
(31
3. For those cases in the first category,
which have
alreadybeen appealed
to the appell,te
or supreme
court before the announcement
of this Order, the
court can proceed with e-ch case but the Judgment
of
tle next level is final."
On 21 August 1979, the Thu i ',ihinet reduced the scope of
military
courts by withdrawing
theit- irisdiction
to try cases involving
sexual offences,
otfences
constituting
public danger, or threats to life,
limb or property.
However,
military
courts continued
to be responsible
for tryingcases inv.alvi;g
national
security,
armed insurgency,
kidnapping,
arson and sabotage.
Persons
tried in military
courts were granted certain
defence rights, includinq
tie right to counsel,
but the verdict
could still
not be appealed.
VI. GOVERNMENT
ADMINISTRATION
EMERGENCY
ACT 1952
ThisAct (hereinafter
called 'theEmergency
Act'was passed con-
currently
with tile Communist
Activities
ControlAct. Theywere designed
to copewithpolitical
disturbances
and communist
insurgents.
In this
Act 'Emergency'
is defined -sasituation
which may constitute
athreat
to national security
orwhich may createachaoticor warcondition;
'National
Security'
as definedin the Act includes
the stability,
safety
and independence
of the countryorwelfareof the nation as well as the
practice
of democracy
under theconstitution.
The interpretation
is
virtually
left to the executive.
The Emergency
Actcomes into forcewhen astateofemergency
is
declared.
However, whenthe emergency
comes to an end, it remains in
forceuntil the revocation
of the Acthas been officially
announced.
Prime Minister
and the Minister
of tile
The
Interior
havecharge and control
of The execution
of the Act and havethe power to appointcompetent
officials,
to issue orders and to pres-ribe
otheracts for the purpose
of
carrying
out the Act. As there is nomentionof anyparticular
authority
to bring the Actinto force, this poweris presumably
vestedinthe Prime
Minister
orMinister
of the Interior.
Onceastate of emergency
is declared,
this Act imposes
certain
restrictions
and limitations
as follows :
Curfew : the periodof curfewis to beprescribed
by the
authority
in charge;
Search : thecompetent
officials
appointed
under thisAct
havethepower to searchany housesorbuilding
between
(3)Thedefendant
is not allowedto havelegalrepresentation
in thesecases.
- 300 -
sunrise and sunset,wherethere is reasonableqroundof
suspicion that there has been a breach of any of the pro-
visions of this Act;
Arrest and Interroyation : a competent official may arrest,
interrogate and detain any person where there is reasonable
ground of suspicion that he or she has committed or is attempt-
ing to commit an act constituting a threat to national security,
but interrogation must not exceed se.en days;
Association : The linister in charge may issue orders pro-
hibiting .ay kind of meetng or assembly at any place without
permission from the :omptent official:;;
Publication : the 2 :1; te: in charnp, many isue an order pro-
hibiting any publications ohich, in his ounin on, may adversely
affect nattion.l s;ecurity or rmy :e likely to caume public disorder;
Emigrat in Control : whoze there is reasonalble ground to
believe rhm the emigration of a person mayi adversely affect
national securit y, theo Minister in ch.arge may issue 1n order
prohibitinq him fo lea.inq the L'otntr'';
Commuicat ion and Postrl Intercmtion : whe there is reason-
able gi,:'nd t iuspicion that a personi-; coperating with others
in a foi ign country for the purpose of committ ing An act pre-
judicial to the .injho,, the Msinster in charge may order a
search and an i.. 7rcetion of the ;."ils "isndIsing other materials
addressed or iirctod to that person;
Seclusion and Deport it ion of -,liesn: aliens may he secluded
from the strategi: ,'a and deported on ground; of national
security and .rohibitod frm Pnaging in certain activities
considered an a thr(,i to national security.
The Eiergency A-t was mainly invoked in times of border crises.
Between 1953 - 1957, there wore ldorlarations of states of emergency along
the south, north anq the north-east forder provinceos, which wre consid-
ered as communist infiltrated areas. k(er'encies were also declared in
August 1958 along the Thai-C7 bsiodian border, and is Juln 1974 in the
Bangkok area, when there were riots iK the district known as China Town.
VIi. COM'UNIST ACT19T5 'IFhLACTC, 1932 - 1979
As mention, earl i -r, the .:ie!o'aerof this Act bring it
within the scope , ::ertency lawn
The cmmunis! Act ivities ontrol Act was first passed in 1952
to check communslt infiltrati on. It was revised in 1969, 1976 and
in 1979. Thege revisiors hve broadned the definition of communist
organisatiOns and activities, wideninq the pwcr, of the authorities
and increasing the penaties.
Most politi-al suspects are charged with engaging in communist
activities. They are, therefore, usually arrested and detained under
thisAct, w'hich hi;: its own interrogation processin addition to the
normal CriminalProcedure. ThisAct is alwaysinvokedduring states
- 301 -
ofMartial
Law. Offenders
under this Act are often triedin Special
Courts-Martial
rather than the Criminal
Court of Justice.
TheStatements
of legislative
intention
annexed
to the
Act reads as follows :
"Since Thailand
is facinu communist
aggression,
public order,
rights and freedoms
of individuals
and the democratic
(qOvern-
ment can survive
only if there is a law for its control and
suppression,
but there has not been this kind of lawso far,
therefore,
it is necessary
to pass this Act for the purpose
of nationa l security.'
Under thi; Act, a coamunist
organisoat
ion m(-Ans a group of
persons
having the lurpose
of engaging
in communist
activities.
The
persons
within
the qroup musot possesso-sme ki nd of membership,
and
have the common purpose
of engaging
in communist
activities.
Communist
activities
may be eng.iged
in three wa's :
1. by abolishinq
the de:-iocratic
government
which has the
King as thelead of State;
2.by changing
the econoric
s.tructure,
expropriating
private
property
without
fair compensantion;
3. by threatening
and engaging
ii, terrorist
activities,
or by applying
deceit for the purpose
of securing
the achievement
of 1. and 2.
Any person holding
membership
of a communist
organisation
guilty under this Act regardless
of whether
he or she
is
has committed
an
offence.
Support
in any form to acommunist
organisation
is alsoan
offence.
In 1958 the then Revolutionary
Government
issuedAnnouncements
Nos. 12 and 15 to speed upthe trialof the political
offenders
arrest-
ed and detained
during the Revolution.
TheseAnnouncP
ntsauthorised
interroclation
officials
to interrogate
anddetainall communist
sus-
pectsunoer the Communist
Activities
Control
Act. The interrogation
and
trial did not have to comply with the Criminal
Procedure
Code and all
the cases during the state of Martial
Law were tried in Courts-Martial
regardless
of whether
or not the offences
had been committed
before or
after the do laraiion
martial of
law. These Announcements
certainly
had retrospective
operation,
for offences
under the Communist
Activities
Control
Act Are it,the jurisdiction
of theCriminal
Courtof Justice
in normal tie5.
In addition,
[hese Announcements
authorised
interrogat-
ingofficials
t"detain suspects
until the interrogation
was completely
finished,
which, in turn, was equivalent
to the suspension
of habeas
corpus.
The uspecto
or accused
might not be tried at all, even by
Court-partia.
These Announcementf;
were challenged and the Supreme Court ruled
that the power of interrogation
officials
to detain suspects
under the
Communist
Activities
7ontrol
Act for an unlimited
period,
i.e. until
the interrogation
was finished,
was void and contrary
to section
87 of
tU-. Criminal
Procedure
Code, which guaranteed
the freedom from unlimited
Jetention
and a right to be tried by a competent
court within a reason-
dble time. The Supreme Court held further
that the Announcements
might
- 302 -
extend theperiodof inquiry or interrogationbut cannotcompletely
defeat section87 of the Criminal ProcedureCode.
Afterthe RevolutionaryAnnouncementsNos. 12 and 15 were
successfullychallenged, the thenRevolutionaryGovernment passed
an Act in 1962 known as An Act concerning the Custody of theOffenders
under the Cormmunist ActivitiesControlAct. This Act -iaply restored
the power conferred on interrogation official; b. the Announcements,
but rrovided furthor that the interrogationof suspects under the
omunist Activities Control Act did not have to comply with the
-inina1Procedure Code, e:cept where it was expressly mentioned.
In effe ct, theAct virtually' overruled the decisions of the Supreme
:uourt-. This Act gave rise to aheated controversy among academics
ard civil rights a'Vocates. In proactice, itcreated the mechanism
,oradministrative detention. Most political offenders were detained
nd some were held in jail awaitina trial for several years depending
on the mercy of tWe Minister of the Interior, who has the authority
to consider he petitionsof the detainees.
-idas tht situation wos, the government passed three further
pieces of legislation :in Act amondinq the Revolutionary Announcement
No. 12 qivi gtheSupreme Military Commander power to interrogateand
detainsuspects under the Communist Activities Control Act with the
sore authority As tht of interrogatior, officials attached to the
Ministrofthe interior. The second Act autnhor i ;,d the Supreme
Miiitry "or.15n1,r to conrsider the petitions of detained suspects.
TA, third Act was passed five years later enabling interrogation
offivial; to detainsuspects for an unlimited period of time. It should
he rito'd that All t-hese Acts were passed under the same Revolutionary
f,ovornment, which .,a; in office for over a decode, during which the
w'.,as This straw. the
cons titution suspended. Act wa the last Due to
acC1cUmLate viO.1ation; of huian rights, especially political rights,
ther-e w,.;A massive prntewt, the dictatorial government came to anend
an! ll legis;lation conrrrninq the detestion of communist suspects
wX-eat the 'oniu ;tActlvities ',.rol Act .. ; resealed in 1969.
"'e ommunist Actiities ontrol Act Co. 2was passed in 19E9.
At provilo a;, inter ,lia, that interroqatinq officials have the authority
to detoain cormmanis suspects for the purpose of in~quiry for tip to 30
dasfrom the day the suspect rrived,at the inquiry officeand,if it
is necessary to datoin him any further, approval must be obtained
tmhe Direr'tor-General o!the Police Department or from the Court,
depn~dinq on the canie. ";;tortun.ately,, three ye,.rs Later, another
.evolutioni An 'Coverrucct issued Announcement Co. 199 authorising in-
ter gation officials todetain s:;pects for on unlimitedperiod. This,
in fa-t, virtually ropalel section 12 of tile Comunist Activities
ontrol At No. 2 (11,9) And ;iMply ignored section R7 of the Cririnal
".,r..,edulr. "ode.
in 197A, th, Natio;al AI:hiristr,ative Reform Council Decree
No. 25 aain mande this rt't,deiningevenmorewidely the concept
of communist ctiitie., by including acts detrimental to national
security, religious institutions, the monarchy and theemocratic
Eyst.m- of go'.orr;t with the Fin as heai of state. Increasedpower
was also granted to offi.ials,and the penaltie, for all "conmunist
offerncos" were made heavier. Nreoover, any offences comitted under
the :on.,qnist Activities Control 'cts, ovan pricr to the announcement
of the National Administrative P'ecree; Nos. I, 8, 1.4 and 29, came
- 303 -
underthe jurisdictionof special militarytribunals and the
accusedhadnorights tocounsel or ofappeal.
In 1979, the Actwas oncemore revised; the reasonfor the
revisionwas statedas follows :
"thecurrent Anti-Communist
ActivitiesAct empowers
the Directorfor thePreventionand Suppressionof
CommunistActivities and otherofficialsto prevent
andsuppress communistactivities in the communist
infestedareasonly; however, in cert-in :ircumstances
the suppressionhas to becarriedout outside these
areas. Therefore,it is properthat the communist
infe stedareas shouldbe abolished and thepower and
dutyof the Director for the PreventionandSuppression
ofCommunistActivitiesbe revised andimproved." (4)
By abolishing"infested areas" the soecial powers previously
giventoauthorities6nly in theseareas can nowbeusedover theentire
country.
TheAct allows the administrative
officials,soldiersand
policemenof 3rdclass upwards (e.g.policesub-lieutenant)
to search
or arrestany personat anyplace and atany timewithout warrant.
Afteraperson is arrested, he canbedetainedup to 480days before
charges are formally placed.
Thecommanders of the four armiesareempowered torestrict
andprohibitall means ofcommunications.
Theyhave the powerto cen-
sor all letters, telegrams, documents,parcels,etc.; toban the print-
ing,distribution and saleofprintedmaterials, newspapers,pictures,
books, etc.; toclosepublic highways,airorwater routes; to ban
televisionand radiobroadcasting; and tomakearestrictionoverthe
ownershipor the saleof food, medicines andall othernecessities.
The provincialgovernorsare empoweredtoban anymeeting,
advertising or entertainment
programmes; to order the owneror the
manager ofany privatebusinessto makeareportonthe backgroundand
behaviourof theiremployees and give the, reports to the officials;
todetainany personfor interrogationandre-education for upto15
days; and to announceacurfew.
It shouldbe notedagain thatall these special powersare
heldbygovernmentofficials allover the country, andnotonly in
sensitive areas,and thatnobody can ask for compensation for any
injusticesor damages that occurin any ofthe suppressionactivities.
Inprinciple, theAct is intendedto maintainnationalsecurity
free fromcommunistaggression. However,severalof itsprovisionsare
widelyused to curtail individual freedomand liberty,especially
during thestatesofmartial lawor emergencies,whenopponentsof the
government are liable to bearrestedand detained.
(4) Final noteof theAnti-Communist
ActivitiesControlAct, 1979.
- 304 -
VIII. DECREESISSUEDUNDERMARTIALLAW
Whenevermartial lawis declareditis usual fordecreesto
beproclaimedby thegovernmentin power. Mention hasalreadybeen
madeofDecreeNo. 25 whichenlarged the scopeof theCommunist
Activities Act, and DecreeNo. 1whichenlargedthe scopeofmilitary
courts. This listis not completewithoutmentioningDecreeNo. 22,
proclaimed aweekafter thecoupd'6tatinOctober 1976.
Thisdecreegranted thepolicesweepingpowers to arrestand
detain "personsdangerous to society". Under thedecree, thepolice
canarrestthese persons at theirdiscretion and holdthem for 30days
ormore if their allegedconducthas not beenprovensatisfactoryto
tile authorities. Such asuspectcanbe heldwithout accessto legal
counsel orwithoutbeing broughtbeforeacourt for ahearing.
Thisdecreewas copiedfrom theRevolutionaryCouncil Decrees
Nos. 22, dated2November 1958; 43, datedJanuary 1959; and 199, dated
August 1972.
Thefollowingwere consideredto be "dangerousto society"
(a)personswho trouble, bully, coerceor take any
actions wrongfullyagainstothers;
(b)vagrants;
(c)persons whoseoccupations are contrarytopublic
peace andorderand goodmorals;
(d)persons withillegalstocks offirearms, ammunition
or explosivesfor tradingpurposes or for otherwrong-
ful acts;
(e)personswho incite,stir up,use or encouragethe
peopleto createdisturbanceswithin the country;
(f)persons who, byonemeans or another,urgethe
people to havefaith inor supportany r~gime other
thanademocratic systemofgovernmentwiththe King
ashead ofstate;
g)personswhoseoccupationsconcernillegalgambling,
prostitutionoroperators of illegal lotteries;
(h)personswhohoard commoditiesforprofiteeringpur-
posesorwhoraisecommoditiespricesillegally; and
(i)persons whojointlystageastrikeor lock-outillegally.
This decreewas extensivelyused. Accordingtothe Corrections
DepartmentofThailand,byJanuary 1979,6,054people hadbeenarrested
and releasedand 581were stillindetention, andmanybelievethese
figures are anunderstatement.
In August1979, this decreewas abrogatedby the Parliament.
Butproclamationofsuchdecreeswithwide-sweepingpowers areperhaps
themostdisturbingaspectofemergenciesinThailand.
- 305 -
IX. THEEFFECTOFMARTIALLAWONTHEJUDICIALSYSTEM
Acriminaloffencecommittedby acivilianis tried in the
CriminalCourt ofJustice,except where theoffence is one ofthose
specifiedby thepersondeclaringmartiallaw or the suprememilitary
commander. Apersoncommittingsuchanoffenceautomatically
comes
under the jurisdictionof aCourt-Martial.
Thepower to specifycer-
tainoffencesas fallingunder the jurisdictionof Courts-Martial
in
effectempowersthe militarytocurbthe jurisdiction
of the Criminal
CourtofJustice. This in turncurtailst1'q rights ofrepresentation
andof appealofthe defendants,whoare usuallypersons suspected in
one formor anotherofpolitical offencesagainstthe militarygovern-
ment.
During the stateofmartiallaw,civil judgesmay be appointed
as judgesofCourts-Martial,
andpublicprosecutors may be appointed
as militaryprosecutors.
As aresult, the civilianjudiciaryis har-
nessedto serve the needsofthemilitary justicesystem. Sincemilit-
ary justice is essentiallyan instrumentof the executive,this uinavoid-
ablyaffectsthe independence
of the judiciary. The effectofthis
mergerhas been toenable the executiveto exerciseincreasinginfluence
uponthe 3udiciaryboththroughitspowerof appointingjudges toCourts-
Martial andin otherways.
It shouldbe mentionedthat thecourtshaveadmittedthe
as alegitimatemethodof change.
coup
Forcedto rule onassertionsthat
thegovernment ofNovember1947 was illegal and that "no coupd'6tat
canchangeor repeal the lawof theland", thehighcourt heldthat
itwas immaterial howagovernmentcame intobeingand that theonly
realtestof its legitimacywas whetherin fact itcouldrule.
Later,in 1958, whenMarshalSarit Thanarat,the then Revolution-
ary leader,declaredmartial law, thesupreme courtwas asked to decide
whetherarevolutionary
leaderhadpower todeclaremartiallaw,since
undertheActonly theKinghad the rowertodoso. The supremecourt
ruled thatallRevolutionary
Announcements
weredeemedtobe lawwith
thesamecompetence as anyother law and thataRevolutionary
Announce-
mentneednot receiveroyal assent (5).
X. THE IMPACTOFTHEEMERGENCYDECLARATIONS
Itis difficultto summarise the effectsofstatesof
emergencysince therehave beensomanyof them. Onthemanyoccasions
uponwhichdeclaratico-ns
of emergencyhavebeenmadeinmoderntimes in
Thailand, theyhave beenaccompaniedby declarations
ofmartial law
andhavebrought into forceanextensivearmouryofspecialpowers
inthe handsof the executive,andinparticularofthearmed forces.
ii recentyearsthe emergencieshavepurportedly beenaimedat
communistsubversivesbut the anti-communist
legislationhas beenso
widely framed as to permitits use to suppressvirtually all opposition
to the government inpower atthe time.
(5) SupremeCourtDecisions46/2496and1662/2505.
- 306 -
The transferof averywidecategoryof criminalcases from
civilianto militaryjurisdiction andthe denialon severaloccasions
of anyright ofappealfrommilitarycourts,havenotonly undermined
basicprinciplesof the Rule ofLawin amannerwhichwas in noway
justifiedby the emergencyconditions,but havealsoundermined the
independence of the civilianjudiciary. In 1958, onone oftherare
occasionswhenthe Supreme Courtresistedthe illegalassumptionof
powers by the executive, the RevolutionaryGovernment simplypassedan
Actoverruling thecourt'sdecision. The numerous changesof government
bymilitarycoup havealso had to be acceptedby the judiciary,afactor
whichhas further undermined their independence and authorityandpaved
the wayfor abuse of executivepower. Thereportof the International
Commission ofJurists on the 1976 emergency (6)describesatypical
exampleof the impact ofemergencydeclarationsin Thailand :
"Allpoliticalparties and political gatherings were banned.
All dailynewspapers were temporarilystopped,and all
publications subjectedto censorship. All communistliterature
was banned. Later inOctober 1976, aseriesof ordersand
decreeswere issued. DecreeNo. 8revived the Anti-Communist
ActivitiesActof1952 inwhichcommunist activitiesare
defined sovaguelyas to include inter alia 'advocating
doctrines leadingto communism'. It gives the armed forces
powerto arrestand detainwithoutwarrantorchargespersons
suspectedofcommunistactivitieswhether theseoccurredbefore
or after theproclamationofmartiallaw. Afurther4,287
personswere detainedfor communist activitiesand themaximum
periodofdetentionwithout trialwas extended to 180daysunder
DecreeNo. 28. 'Communist-infestedzones'werecreated in
which all libertiesmaybe suspendedand whichmaybe declared
outofbounds for habitation.
DecreeNo. 22 describesnine categoriesofpersonsas being
'dangerousto society'. Thesecategories includesixfor
criminalactivities andthree forpoliticalconduct,allof
which arecouched inveryvague terms. The governmentis
givensweepingpowers to arrestpeoplein these categories
and tohold themindefinitelywithouttrial. InMay 1977
habeascorpuswas suspended for thesedetainees whowished
tochallenge that therewas anysufficient evidencethat they
were'dangeroustosociety'.
Allpersons chargedwithoffences undermartial laworunder
the Anti-CommunistActivitiesActaresubject to the juris-
dictionofmilitarycourts. Once apersonis chargedwithan
offence underthe Anti-CommunistActivitiesAct, all other
chargesmaybedealtwithbythemilitary court. Alsoin
such casesthere is no rightto berepresentedbyanattorney
(thoughsomedefendantshave beenableto consultlawyers
beforetheir trial), thereis nopossibilityofbail, and no
rightof appeal fromanydecision.
Themajorityof thosearrestedin October1976 havebeen
(6) ICJReviewNo. 19,1977.
- 307 -
released. However,manystill have to reportweekly
to localofficials andsome statethat theyareunable
to findemploymentbecause of their arrest. Others
havebeensent tore-education camps andsome have been
re-arrestedforother unspecifiedchargesunder other
decrees. Thereare reportsof agreatdealofindis-
criminateuseof officialauthority in outlyingareas.
Fifty-seven journalistswho hadbeeninvestigated
before tlecoup werearrested and chargedwithhaving
'committed
acts endangering
national securityand
servingcommunists'. All major newspapershavebeen
closedtemporarilyat leastonceduringthe pastyear
forprintingmatterconsidereddamagingto the govern-
ment. One newspaperwas closed for tendays forprinting
aneditorialwhichcriticisedareportthatMalaysian
troopswere to be basedin Thailandpermanently. The
threatof temporarysuspension has resulted in self-
censorship,as theseclosures threaten the economic
viability of thenewspapers. The policehave confisca-
ted and burned thousandsofbooks and otherprinted
material consideredto be pro-communist.
In addition,
small journalsrepresentingawidespectrumofviews
havebeenbanned. In August1977, the Ministryof
Educationannounced thatprivatepublisherswerepro-
hibitedfrom printingtext books on subjectsconcerning
nationalsecurity.
Strikes andany Zormofworkers' demonstrations
were
banned inJanuary 1977. Offenders are subjecttoarrest
as beingdangerous to society. Laterinthe year, the
LabourDepartmentsaid that stateenterprises arenot
coveredbyLabourLawand thereforebannedall state
enterpriselabour unions. Acommitteewas established
toenactnew legislationonsuchworkers'rights,
benefitsand welfare."
XI. CONCLUSIONS
Thesurface featuresofgovernment inThailandlookmuch
like those in anynumberofotherstates. Thereis awrittencon-
stitutiondescribing thebranchesofgovernmentand settingforth
theirpowersand responsibilities.
Thereis ahierarchyof ordinary
courts,and thereis aspecial court to interpretand applythe
constitution.
There are functional and territorialdivisionsof
administration
similar tothose found inmostmodernunitarystates.
Thereare politicalpirties andelections, shifting factionsand
changesofpower. Even the philosophicbasisof the state is
familiartoall versedin the doctrines ofWesternrepresentative
democracy.
But externalfeaturesare the least significantpartofthe
whole. Ancientwayspersistlong after theyhave been formally
abolished :while therevolutionof 1932 underminedthe absolute
monarchy,muchof thespiritandmanyofthe techniques ofabsolute
rulestillunderliegovernmentin Thailand.
- 308-
In short,thestructureofThai government today combines
ancientinstitutionswith recentinnovatons. Uponan administrative
and moralfoundationwhichsurvives basicallyintact from 'hetimeof
the absolutemonarchy,is raisedasuperstructureof formaldemocratic
institutions.
Theuse and misuseof emergencypowershas tobeseen in
the wholecontextof Thaihistory andpolitical tradition. If the
mistakesofthe pastare not to be repeated, thenanewpolitical
tradition has to beevolved,bothby the Thai leadersand the people.
There are indications that the oldpatternmanynowbe
changingin factas wellas in form.
-0-0-0-0-
- 309-
STATESOFEXCEPTIONIN TURKEY
CONTENTS
Page
I. GENERALCOMMENTS....................................... 311
Distinctionbetween "R6gimesofException"
and "StatesofException................................. 311
Types ofStatesofExceptionRecognised
byTurkishPoditiveLaw.................................... 317
II... THESTATEOF SIEGE ..................................... 318
Implementation ......................................... 318
LegalEffects ..........................................
320
ReviewofLegalConformity................................. 327
APPENDIX .......................................................
329
-0-0-0-0-
- 311-
STATESOFEXCEPTION INTURKEv
1960- 1980
Turkeyis acountrywhichpolitically claims tobeademocracy.
Its leadersorstatesmenalwaysboastof"havingprovedthe applicability,
viabilityand evenstabilityofademocraticand liberal system"since
1945 inacountrywhich is, nevertheless,insufficientlydeveloped
fromaneconomicandsocialpointofview.
Yet the truth remains thatthepolitical life ofthe country
is alsomarked byanabundanceofpolitical criseswhich sometimes take
cheformoftherupturingofconstitutionalpower (bymilitary take-
overs, attemptedcoups d'6tat, etc.) and by successive impositionsof
martial law. Indeed, inspite ofthe political r6gimes installedafter
the militarytake-oversof1960and 1971, and two attemptedcoups d'6tat
in 1962 and 1963, it shouldberecalledthat in 10outofthe 20years
between1960 and1980,martial lawhas been applied. Eventoday, agood
numberof provincesremainunder themartial lawdeclaredon12 December
1970.
The result is thatpolitical andconstitutional disruptionsor
crises as well asactualstates ofexceptionformanintegralpartof
Turkishconstitutional reality. This is an undeniable factwhichevokes
doubtsabout the viabilityofthe existingsystem. Examining thecauses
and consequencesof this issue,however,goes beyondtheproposedscope
ofthisarticle, whichis to giveageneral idea of the juridicalaspects
of the statesofexceptionto the readerwhohas little knowledgeof
Turkishlaw.
In order todo this, it isnecessary tobeginwithafew
general pointsaboutdefinitions and classifications (PartI)and
followthis upwithastudyofthe mostwidelyusedstateofexception,
thatis, theState ofSieqe (PartII).
I. GENERALCOMMENTS
Inviewof the multiplicityand varietyofexperiences inthis
domaininTurkey, adistinctionmust firstbemadebetween "r~gimes"
and "states"of exceptionbeforedrawingupan inventoryofactual
statesofexceptionrecognisedbyTurkishconstitutionallaw.
Distinction between"R6gimesofException"and "StatesofException"
Itwouldbe useful todefinethe termsofthis distinctionto
begin withand to followthisupwithaglance at certainhistorical
cases.
Definitions
By "regimesofexception" ismeant"defactosituations" ofa
purelypoliticalcharacter, the existenceofwhich is notlegalised
by any judicialact ornorminconformitywithpre-existinglaw. These
systemsofexceptioncanbeestablished afterrevolutions, coups
d'6tatorforceful take-cversofgovernment,thatis to say, inter-
- 312-
ventionswhichcan neither bejustifiedbythe constitutionnor by
already establishedlaws, againsttheestablishedsystemofgovern-
ment.
Onthe otherhand, statesofexception,whilealso beingextra-
ordinarymodes ofadministration,are providedfor bythe lawsofthe
country andare subjectto themfor theirdeclarationand implementation.
Thedistinction between "r6gimes"and"states"ofexceptionis, inshort,
betwee1what is "defacto andwhatis presumed tobede jure".
This formulationorsimplificationshould not,however,give
theimpression thatr6gimes ofexceptioncontinue tobedefacto
systems devoidof any idea oflegalityor legalframework. Tothe
contrary,once inpower the newleadersat thehelmofstate affairs
are atpains firstto legitimise themselvesand then toconstructa
newlegalarsenal, using the usual technical instruments :the con-
stitution, laws, decrees, etc. Indeed, it is at thisstage that a
seconddistinction betweenrtqimes and statesofexceptionappears.
While regimesofexceptionaffect oralter toagreater or lesser
degreethe pre-establishedconstitutional framework,statesof
exceptioninprinciple work withinthe limitscircumscribed for them
by the constitutionand laws to which theyowe theirexistence.
HistoricalCases
Since 1960,Turkeyhas had two r6gimesof exception inthe
sensedefined above. Theirdates are 1960-61 and 1971-73. Theyare
called "the 27 May rgqime" and"the 12 Marchr6gime' respectively.
The RdqimeKnownas "the 27 May R~gime"
On27 May1960, agroupofyoungofficers supportedbyalarge
majorityof thearmy overthrewthedemocraticparty governmentofA.
Menderes. This politicalparty, in powersince 1960,had alwayshada
very largeand dependablemajorityin Parliament throughwhichit hao
been able to pass laws and takedecisionsof a mostundemocratic
and arbitrarynature. Its anti-socialpoliciesweredisadvantageous
to the popularmassesand especially to the middle-class,membersof
which formed partof thearmy at the time.
The revolutionaryofficers,whosoon afterthe military take-
overformed arevolutionarycommitteecalledthe CommitteeofNational
Unity (CNU), assumed statepower and took chargeof the administration
of the country. TheCommitteedissolvedParliamentand replacedthe
existingCouncilofMinisterswithanotherwhosemembers it designated
(1).
Atfirst, itwas ade factopower, as is shownby the setting
up ofacommissionmadeup oflawprofessors topreparedraftproposals
for anewconstitution. Thisit did in its reportof28May 1960 (2).
Lateron,however,theCNU,with the massive supportofthe
youth,publicopinionandpressuregroups (thepress,tradeunions,
universities,etc.) beganto legaliseall thesepolitical changes and
its own de factosituationby a"ProvisionalLawon theAbrogationand
Modificationof CertainArticlesof theConstitutionof1924" (3). This
text thus constitutedthe ProvisionalConstitutionof ar~gime in
transitionto democracy.
- 313-
Indeed, the CNUsetitself thetask andgoal ofcreatingthe
legalbase for aliberaldemocracyand alegalstate and thenallowing
liberalpoliticsto take theirnormal course. In other words,the
revolutionarycadresdevoted themselvesasmuchfrom thepoint ofview
of thesphereof implementationsas ofthedurationof thetransitory
rdgime to the followingmajorgoal :the institutionalisationofdemo-
cracy. Thisobjective is clearly emphasisedin thepreamble to the
"ProvisionalLaw".
The textof this lawis interestingfromanotherpointofview.
There is aclear indicationin itofan attemptby the CNUto legalise
the militarytake-overof the 27 MayRevolutionand the various instru-
ments promulgatedby theCNUafter thisdate. On the onehand, the law
of the internal functioningofthearmy whosedutyitis tc "defendand
protectthe TurkishFatherlandand theRepublic ofTurkey'"canbe found
in this textin ordorto justify the directtake-over ofpower. Onthe
otherhand, the same lawlegalises retroactivelyalldecisions takenor
resolutionspassedby the Committeeupto that pointand datingfrom
27 May 1960 (article26).
Whatare the legalcharacteristics thatallowus torefe' to
this systemas asystemof exception? Examples can be cited from
differentspheres.
Firstly, in the exerciseof sovereigntywenote that amilitary
body, the CNU,not electedby thepeopleassumed "therighttoexercise
sovereigntyin the nameof theTurkishNation". It endoweditselfwith
all the prerogativesoftheGrand Turkish NationalAssembly (First
articleofLawNo. 1). These are the legislativepower,whichte
Committee itself exercised, and the executivepowerwhichit exercised
through the CouncilofMinisters,whosememberswereappointedby the
head ofstate,GeneralCemalGOrsel,who wasalso thepresidentofthe
CNU,with the approvalofthe Committee (article3). The CNUcould
alwaysmonitor theministersand removethemfromoffice wheneverit saw
fit. We thus see asystemofgovernmentby consensuspar excellence;a
systemsuitedto atime ofcrisis orofrevolution. Theresult is that
here againwe are face to facewith asystemofexception fromthepoint
ofviewoforganisationofpoliticalpower. Itwould be proper toend
our assessmentof developmentsin this area by addingthatthe1.961
constitution adoptedaparliamentarysystemwithaflexibleseparation
oflegislativeand executivepowerbasedonaslightsuperiority ofthe
formerover the latter.
Inthe areaoflegislative activity,themostoutstandingact
ofthe 27 Mayr6gime was its developmentofthe1961 constitution. The
formationof aconstituentassembly (withtwohouses :theCNU and the
HouseofRepesentatives)whose task itwastoprepare the newnational
constitutionis aproof amongothersofthe exceptional natureof that
period (4).
It isnow necessarytoenterinto the fieldofjudicial
organisation inorder todetectthe impactonitof the r~gimeof
exception.
Accordingto the provisional law,judicialpoweris exercised
inthename ofthe nationandwithinthelimits ofthelawbyimpartial
and independentcourts (article5)whichdoes,however,providefor a
specialcourt whosefeatures are rathercontradictory to thoseof a
courtofjustice in normal times.
- 314-
This court,established byarticle 6of thesaid law andnamed
the HighCourtof Justice,was to judge theex-presidentofthe republic,
theex-primeminister,ministers and collaboratorsofthe former
regime. Itwas thusacourtconstituted subsequently to the commission
of those crimes, contrary to theprincipleof "naturaljustice". Further-
more, the judges of theHighCourt ofJusticewere selectedby the CNU
faimamong candidates proposed to it by the Councilof Ministers (article
6 of the Provisional Law). Here again, is seen a tendency clearly in
contradiction with principles expressly provided for by the same law,
namely the impartiality and independence of the courts (article5ofLaw
No. 1). It shouldalso be noted thatarticle 6of the lawwas amended
subsequently to exclude any access to any formofappeal againstdecisions
made by the HighCourtofJustice, exceptfor sentencesofdeath,whichhad
to be approvedby the CNUbefore theywere carriedout (5).
Other factsshouldbe added to this jurisdictionalcharacteristicof
revolutionary times. Article146 of the PenalCodewas amended retro-
activelyand enabledmembers of parliamentwhohadsupported the deposed
qovernment to be triedonacharge of"complicity" (6). The criminalpro-
cedure applicable to senior civil servantspresumed to havebroken the
lawand committedcrimes andoffenceswas modifiedby asimilaramend-
ment in order to bring the accused before theHigh Courtof Justice (7).
Here again,the lawhad retroactiveeffect. All these practiceswere
criticised in areportdrawn up by amissionof international legal
observers (8).
The HighCourtof Justicesentencedhundredsofaccusedpersons
to termsOfimprisonment. Amongthe 15 condemnations tocapitalpunish-
ment, three wereapproved andthe executionswere carriedout,those
ofex-primeministerMenderesandofPolatkanandZorlu,ministersof
finance and foreignaffairs, respectively. Otherswerecommuted to
life imprisonment, includingthe sentence given tothe ex-presidentof
the republic,Mr. Celal Bayar.
Afinal example of the jurisdictionof exceptionis the "Lawon
Revot'tionaryCourts" (9). This introducedthe dubious notionofthe
offenceof "Propaganda", increased lightersentences, evenupto the
deathpenalty,providedforthe establishmentofnew courtswhere thought
necessary, under the supervisionof the Committee,and excludedany
appeal againsttheir judgments (article3/iv). This lawwas never
subsequentlyapplied.
As to public liberties, certain lawsorpracticespertaining
to themcan benoted. EventhoughProvisionalLawNo. 1 maintained
the sectionof the 1924constitutionon "ThePublicRightsofTurks"
(articles66-88), a"Provisional Lawfor theDefenceof the Revolution"
(10) empoweredthe police to use administrativedetention. Thus,
personsdisturbing or threateningpublicorderorthe securityofthe
state and thoseonwhomtherewasenoughproofofthe will to violate
or threaten the abovecould be incarcerated for aperiodof30days.
Thispower,initially grantedto provincialauthorities,was sub-
sequentlyconferredupon theMinisterof the InterioL, whoalsohad
thepowertomodify the decisionofprovincialgovernors (11). Finally,
athirdamendmentrepealed the 30 daydetention forthosewho hadbeen
incarcerated since27 May1960 (12). It is veryclear that thistext
bears themarkof arevolutionaryperiod, althoughinpracticeit was
notusedas ameans ofterrorisation; ratheritplayed adeterrent
role (13).
- 315 -
Itshouldbe remembered
that the two largest cities inTurkey,
thecapital AnkaraandIstanbul,were at that timeundermartial law
whichwas not lifted untilafterthe electionsof14 October1961 and
30November 1961. Moreover, theactivitiesofpoliticalpartieswere
temporarily
suspendedby theCNUand the government
(14). This ban
was liftedby the government atthe beginningof1961, but the
politicalpartieswererequiredto continue theiractivitieswithin
the limitssetoutbythe 27 May r6gime (15).
In the interim,the Menderes'democraticpartyhad been
dissolved byacourt (16). Finally,withregard to the reorganisation
ofcertainpublicinstitutions,
threeattemptscan be noted. The
first affectedthe ranks ofthe army: morethan4,888 officers,of
whom235 were generals,were retired (17). The secondhit the
universities
:147 lecturerswere relievedof theirdutiesbya
special court (18). Finally, theStateCouncil (thesupremead-
ministrative
court) was emptiedof all its technocrats
(thejudges)
withaview toatotalreorganisation
(19).
Anotherrevolutionary
measurehit the big landowners
(the
Agas) ofwhom55weredetainedwithoutcharge, solely on thebasis
thattheir socialstatus was thatofoppressors (20).
All thesefactors indicatethathere it was not simplya
questionofthe application
ofmartial lawbutof an extraordinary
regimeora"r6gLmeofexception".
Theproofof this is to be found
in theabolitionof the existingconstitutional
norms and framework,
the building ofanewconstitutional
structureand the re-organisation
ofcertain stateinstitutions.
However,it mustbe notedimmediately
that this extraordinary
r6gime,whichlasted largely until themeetingof theConstituent
Assembly (6January 1961)andendedwiththe adoptionofthenewcon-
stitutionby referendum
(9July 1961)orperhapsevenafterthe general
electionsof14 October 1961, wasclearlymarkedbyademocraticten-
dency. Indeed, therevolutionaries
hadalreadymadeit clear that their
politicalprogramme wasoneoftransition
towardsaliberal rdgimeby
carryingout aseries oflegal reformswhichwouldpermit suchasystem
to function (LawNo. 1). Thebasicgoal ofthegovernment,
for itspart,
was toarrive atthe transition
todemocratic orderbasedonthe Charter
ofthe UnitedNations and theUniversal Declaration
ofHuman Rights.
LawNo. 157on theconvocation
ofaConstituent
Assemblydemanded,besides
theordinaryconditions
for eligibility,
the conditionofnot having
approvedof activities,
publications
or attitudescontrary to the con-
stitution,and human rightsup until therevolution
on 27May 1970
(article6/3). Finally, the implementation
ofaliberal anddemocratic
constitution
which recognises
the separation
ofpowers,the independence
of the judiciary, fundamental
rights and liberties,and the creationof
an efficientsystemtomonitorthe legality andconstitutionality
of
administrative
and legislative
instruments
are the mostinteresting
innovations
ofthis transitional
r6gime. All this shouldenableus to
call itatransitional
rgimeofexceptionwithdemocratic
goals (21).
TheRgimeKnown as "the12 MarchR6gime"
The secondexample ofardgimeof exceptionwas inpower
between1971-1973.
Thisr6gimewas institutedon12March 1971 after
amemorandum
fromthe upperechelonsof thearmy hadbeendeposited
- 316 -
withthe Presidentofthe Republicaswell as thepresidentsofthe
two chambersofparliament. Thisultimatum,signed bythechief of
staffandthreecommandersof theground,air and navalforces de-
mandedthe resignationofMr. Demirel'sgovernment whichwasto be
replaced by anothersupportedby the army. The 12 Marchr6gimewas
to have fromthenon governments "abovepartypolitics"ofwhich the
firsttwowere presidedover byMr. Erim. The formerparliamentand
government were accused in the memorandumofbearingthe major
responsibilityfor I,-anarchyand disorderprevailingin the country.
Even thoughthe governmentsofthat periodresortedto avote of
confidencebefore the parliamentwhichwas upheld, the real centres
fordecision-makingwereelsewhere.
Indeed, in spiteof theparliamentary faqade it was the
generals of the upper rankswhoin reality controlledthe political
powerand manipulated the r6gime accordingto the directionsofa
certain "GreaterCouncil of theHighConand",abodywhichwas
recognised neitherby the constitutionnor the law. Interventions
intothe functioningof the systemweredecidedthere and implemented
by thegovernment. The Presidentof the Republicplayedhis partin
spiteof the symbolicstatusassignedto himbythe constitution :the
role of mediator or "transmission belt" on the one hand between the
military andcivilians and, on the other hand, betweenthe higher
echelonsof the army and parliament (22).
It would be inadequate,however,to judge the 12 Marchr6gime
onlyon the basis of the above factors. 7o confineoneselfonly to
chanqes in the balanceof powerbetweenciviliansand the military
runs therisk of confusionbetweenthe "27 May"and "12March"rdgimes
,)f exception, bothof which aze markedby the commoncharacteristics
ofaconsiderablewideningofmilitarypowerovercivilianpower. This
could evenlead theobserver to considerthe 12 March rdgimeas more
democraticthan that of27 May (sincecontraryto the proceedingrdgime
it at least kept the parliamentary faqade) while in fact the 12 March
r6gimewas essentiallycharacterizedby aregression from thepoint
ofviewofdemocracyand liberties. Forthe 1971-73periodwasmarked
by averystrictapplicationofmartial lawwhichheldswayoverthe
whole countrywhile beingdeclaredin only 10provinces. Practices
suchasmassdetention; banningofthe right of assemblyand association;
press censorship;total deviationfromthe principlesofprivacyof
personal lifeand inviolabilityofdomicile; tortureand summary
executions; strictrestrictionon trade unionactivitiesand ofthe
right to strike; mass trials, after whichthousandsof accusedwere
sentenced to verysevere termsofimprisonmentetc., affected the
popularmasses as wellas intellectuals, especiallyuniversity
lecturers (23).
Furthermore, the semi-military r6gimelostno time inmodifying
the democratic1961 constitution in itsentirety inan atmosphereof
heavy repression in order to institutionalizeitsattackagainst
democracy and freedom. Themodificationsimposedbythe higher
echelonsof the armyin aletter sent to thePresidentof the Republic
essentially coveredthreepoints :restrictionor suspensionofmost
democratic rightsand liberties,strengtheningofthe executivearmat
theexpenseofthe legislative arm,and restrictionof juridicalcontrol
overpoliticalpowers (24). Allthese changeswere consolidatedbya
seriesofnewlegislativemeasuresaffectingdemocraticrights and
liberties- newlawson the stateof siege, associations,thepenal
- 317 -
procedure,etc. Thisassessment ofthe12 Marchr~gimewas presented
andcriticallyexaminednotonly byTurkish jurists butby foreign
organisations,
press,observersand authors, whose impartiality
cannot
bedoubted (25).
In short, the12 Marchr6gimewas anexample ofatransitional
rdgimeofexceptionwithauthoritarian
goals, afact whichclearly
differentiates
it from the 27 May regime. However,while therewas
politicaland ideological
opposition to thesetwoarmed take-overs,
the
fact remains that theyare similarfromacertainpointofview. The
two take-overswere firstandforemostillegal according tothe lawin
force for nosystemwhichconsidersitselfdemocratic
and liberal can
toleratethe intervention,
whetherdirectordissimilated,
of thearmed
forces in political life and - should they fail - the
perpetrators
of such actsare judgedand condemnedaccordingto thepenal
laws (whichwas indeedthe lotofColonel T.Aydemir,former commandant
of theMilitaryAcademyand leader of twounsuccessful
military take-overs,
successively
in 1962 and 1963, the latterofwhichcost himhis life).
Moreover, anxiousabouttheir legitimacy,the leadersofthe 27
May1960revolutionhad the followingphraseinsertedinto thepreamble
of the 1961 constitution
:
"TheTurkishNation .... whichbroughtabout therevolution
of27 Maybywayofexercising theirright to resist
oppression."
On the otherhand, the higherechelonsofthe army, signatories
to the 12 Marchmemorandum,
strivedto justifytheir actionlike the
revolutionaries
of1960bybasing their actionsonthe Lawonthe
Internal Operations of theArmy, whichgives the armed forces the duty
to "defendandprotectthe TurkishNationand the Republicof Turkey".
It can be inferred fromall this that%eare face to facewith
de facto r6gimesin eachof these cases. We are thus still faraway
fromtheconcept ofastate ofexceptionwhichbydefinitionshouldbe
legallydecidedand declared.
Next,in each of the exampleswe see apolitico-constitutional
change. Inotherwords,the statemachineryhas beenprofoundly
affectedand altered by these interventions,
afactwhich is not
includedin the definitiongiventostatesofexception.
One wouldthus
have tolook elsewhereforstatesofexception,properlysocalled.
Onlyastudyof thepositivelawwillpermit us toindicate itsvarients.
TypesofStates ofExceptionRecognised
byTurkishPositiveLaw
Turkishpublic lawrecognisesfourtypesofstatesofexception.
Threeare specifically
providedfor bythe constitution
andthefourth
is accepted by juridicalpractice but its constitutionality
remains
controversial.
The constitution
provides for the followingtwostatesof
ey-:eptionunder theheading"MethodsofExceptional
Administration"
(a)Exceptional
Circumstances
(article123), and (b)State of Siegeand
State ofWar (article124).
- 318 -
Article123 appearsinitially toregulateasingletype of
state ofexception,whateverthe reasons forits declaration. Article
124 appearsambiguous sinceit seems to allude to two typesof states
ofexception- the stateof siege and thestate ofwar. Thestateof
war in itselfcannotbeconsideredastateofexceptionbasedoncer-
tdinfactors in TurkishPositive Law. In timesof war, the executive
is empoweredto take two possible linesofaction. It caneitner
declareastate ofsiege, where it considers thisnecessary,orit
can contentitselfwithexercisingits power to implementarticles3,
15 and 16 of the lawon the stateofsiege (withoutbeingobliged to
declaremartial law)and certainprovisionsofthe law onexceptional
circumstances (article123 of theconstitution). Thus it turnsout that
the state of wir, not being governed by a "system of its own", does not
constitute a distinct state of exceptionbut borrowsits legislation
from thoseprovided for exceptionalcircumstances (article123) and for
the stateof siege (article124). We wouldthus venturetosaythat
article 124 onlymakes provision for asingle type ofstate ofexception-
that is the stateofsiege.
A third form of the state of exception is regulated by article
120/7of the constitution. Thisprovision,whichdid notfeature inthe
original textof the 1961 constitution,was incorporated in the revised
version in 1976 (26). The reactioninpolitical circles againststudent
activismin 1968-1969is worthnoting, for the newprovisionattributed
to government the power to take directcontrol of the administrationof
universities andindividual faculties (autonomousbodiesunder the
constitution)in case of serious disturbances,the remedy forwhich was
beyond the capacities ofthe universities themselves.
Finally,afourthcategory of statesofexceptiondeals witha
set ofpowersat the disposalof the governmentin timesof economic
crisisthroughthe implementationof certainspecial lawsenablingit
to intervene directlyin the flowof thenationaleconomy. Thisfourth
cateqory doesnot emanatedirectlyfrom the constitution,it comesfrom
pre-constitutional legislation.
Nevertheless, the fact that theirexistenceis approved and
legitimised by theConstitutionalCourtallowsus at leastto citeit
among the statesofexceptionrecognisedbyTurkishPublicLaw,ifnot
by the constitutionitself.
II. THE STATEOFSIEGE
The legalproblems relatingto the stateofsiege canbe
groupedunder threeheadings :Implementation,LegalEffects,Review
of its LegalConformity.
Implementation
By "implementation"we mee.ndeclaration,approbation,
renewaland abrogation.
It is withintheprerogatives cf theCouncil ofMinistersto
decideonand declarethe stateofsiege. This decisionmustbesigned
byall theministers,the prime ministerand thePresidentofthe
Republic. Thisis arule followedsincetheera ofthe 1924constitution.
- 319-
Nevertheless,
itisimportant
to citetwo important
exceptions
which
haveoccurred,
between that timeand thepresentday. The 1955 state of
siege had beendecidedanddeclarednotby the Councilof Ministers,
but
bythePresident
of theRepublicand the PrimeMinisterduringatrain
journeyto Istanbulon the night of 6to 7September
1955. Moreover,
itwasnot published
in the officialgazetteuntil 5dayslater (27).
Thesecond example tookplace in 1960andis thestate ofsiegedeclared
bythe CNU,that is byabodyother than theCouncilofMinisters,
after
the 28May revolution
(28). Thiscanbeexplained
by theexigencies
of
thatperiod,as the Committee
was the onlyauthority
in the country at
the time.
Thedeclaration
itself is presented
in writcenformandis made
by a"decision
ofthe CouncilofMinisters".
It shouldbejustifiable
inorder topermitapossiblelegal review. Its publication
"by
appropriate
means" isundertaken
bythe Ministerofthe Interior
(29).
In the final areadealingwith procedure,
acurrentpractice
attractsour attention.
The Councilof Ministers
alwayshas recourse
to the advisoryopinion ofthe NationalSecurityCouncilwithoutbeing
bound to consult it (30); for suchanadvisoryopinionis not included
amongthose enumerated
in the organiclawon theNational Security
Council (31). It shouldalso benoted thatuntil now,governments
have
always followed the "advisoryopinion"of theNSC.
Astateofsiege canbe declaredfor aperiodof nomore than
twomonths. Itcan coverone or several regionsor theentire country.
In the majority
ofpastcases the territorial
spaceof the stateofsiege
has includedlargeurbancentres (likeIstanbul, Ankara,Izmir), border
areas (eventsin neighbouring
,abcountries,
theCypruscrisis ..)and
theProvince ofEasternAnatolia
(ethnic intters).
The constitution
does notprovide for the durationofastate
ofemergency
concerning
the universities.
The LawonUniversities
(No.1750)had limited thisduration to twomonths,but thearticle
was abolished
by the Constitutional
Court (1975). The LawonUniversities
empowerstheCouncil ofMinisters
to extendthe stateofexception
fora
two-month
period. Thisdecisionmustbeapproved by the GrandNational
AssemblyofTurkey.
The conditicis
for adeclaration
ofaState of Siegeare
definedas follows :
"Article124 - The CouncilofMinisters
candeclareastate
ofsiege forreasons of stateofwaror threatofwar or
rebellion
or the outbreakof strongandpersistent
intrigues
againstthe state, orthe outbreakofwidespread
actsof
violence
frominternal orexternalsourcesendangering
the
indivisibility
of the territory
and nationorhavingthe
tendency to destroythe systemof freedemocracy
orfunda-
mentalrightsand liberties
re-ognised
by theConstitution."
This numerusclausus
inventory
indicates
thatthe powersof
theCouncilofMinisters
arestrictlylimited.
Any attempt todeclare
astateofsiegebasedon reasons otherthan thoseprovidedfor in
article 124 of theconstitution
wouldbe in violation
ofit. Butit
mustalsobe seen that the government
disposes
of -'iitewidedis-
cretionary
powers in this areagiventhe inevitakle
ambiguity
of the
- 32o -
conceptsused in thesaidarticle. Becauseof this, thegovernment
wasable toconsiderworkers'protestsagainst abillon tradeunion
liberties a"rebellion"whichservedas apretext for it todeclarea
stateofsiege. Similarly, afew,verylimited, actsof terrorism
and violenceservedas thepretext for thedeclarationof astate of
siegeon26 April1971. Theconstitutionat thattimeonly madepro-
visionfor four conditions for thedeclarationofastatu ofsiege.
These were "state ofwar, theexistenceof athreatofwar,rebellion
or The outbreakofevidencecategorically indicatingtheexistenceof
strongandpersistentintriguesagainst the fatherland and the
Republic" (originalformof article 124). But parliament,whichapproved
the state of siege inquestion,inserted afewmonthslater the follow-
ingphrase :"ortheoutbreakofwidespread violenceendangering
(-2) .
Thisindicates thatparliamentwasnotcertainaboutthe
constitutionalityof the declarationof the state ofsiege and thus
byinsertingthe above phrasewas resortingto attempted retroactive
legitiinisation.
The systemofthestateof siege is implementedwiththe declara-
tionand beginsimmediately toproduceits legaleffects. Itscontinued
existe,.ce depends onthe will ofanother body,however,and here itwas
amatterof"approbation"by this body. According to the constitution,
the MinisterialCouncilwas bound to immediatelysubmitits decisionand
approval to theGrandNationalAssemblyofTurkey (GNAT)which is com-
posed of theNational Houseand theSenate, sittingin joint session.
These assemblies are immediatelyconvenedif theyare not in session.
TheGNAT canthen eitherapprove the declaration ofthe state ofsiege
-- it stands,reduce itsdurationor abolish it entirely. However, the
Councildoesnot have theright to prolong its durationat the time of
initialapprovalsince the periodcitedinarticle124 (2months)is
maximal (33). Todate, parliamenthas onthree occasionsrefusedto
give its approval to the declarationand has thus decidedits abrogation
(34).
The state ofsiege isrenewed by the same bodyeachtime for a
periodof notmore than twomonths. OnlytheCouncilofMinisterscan
ask for anextension. Membersofparliamentandsenatorshave the right
topropose areductionin the durationof astate ofsiegeor its
abolitionbut havenoright to propose its renewal (35).
The liftingofthe state of siegecantake placeindifferent
ways. Either theCouncilofMin.stersdecideson an anticipated lift-
ingandsubmits its decision to the approbationofthe GNAT (for
example, the 1955 state of siege hadbeenlifted onthe initiative
ofthe CouncilofMinistersafter adecisionbyGNATwhich was unicameral
at that time (36)) orparliamentarianscan makeaproposalandsubmit
it tothe GNAT; orelse bureaucraticinertia atthe time the
givenperiodfor thestate ofsiegeexpires cancause itto lapse-
whichis the mostcommonform inTurkey. Also,theGNAT canabolisha
stateofsiege declaredby the CouncilofMinistersby failingto approve
it (37).
LegalEffects
Thelegal effects ofthedeclarationof astateof siege should
beexaminedat the administrativeand judiciallevel aswellas inre-
lation to the fieldofeconomicrights.
- 321 -
Administrative Level
Afterthe declarationof astate ofsiege, theCouncilof
Ministersmnstfulfil twoobligations :thatof appointingthe
Commanders ofMartial Law,ofsettingup the necessarymilitaryorgani-
sationand ofestablishingmilitarycourts (38).
At alower administrative level, wesee the passingofpowers
and attributionsofthe security forces to the militaryauthorities
who are the commandeosofmartial law. In addition,all the forces
oforderare putunder their control (article2ofLawNo. 140). This
totalabsorption ofthe "civiliansector" bythe "military"is oneof
thecharacteristicsofthe newlaw on the stateofsiege onwhich the
regimeofexception of 1971-1973 leftits mark. Indeed, the repealed
1940lawon the stateof siege (LawNo. 3832) madeprovision fora
limitedtransferof policepowers to the militaryauthorities (only
thosegoverningnational securityand publicorder). Furthermore, the
powers transferredcouldonlybe exercisedthrough the localcivilian
policeand not by the militaryauthorities themselves. This restriction
and the distinctionmade between "thepowerofdecision" (military)and
"the powerofexecution" (civilian)thus constitutedaguarantee for
the citizens,aguaranteewhichhad been removedby the newlaw. There
is anotherdisadvantage :the totalabsorptionof the civiliansector
by themilitary causes the removalof anotherguaranteerecogniseduntil
thenwhich the lower ranks haveagainst illegal ordersfromtheir
superiors, arightwhich constituted,in the final analysis, the pro-
tection ofindividuals againstarbitrary behaviour by the administration.
Thus, giventhe conditionof totalabsorption of policepowers by the
authorities ofmartial law, theprohibitionof theexecutionofillegal
orders imposedby the constitutioncould neverfunctionbecauseof the
exceptionsrelatingto militaryadministrationwhichare providedfor
within theconstitution (39).
Recognisedpolicepowersunderthe control ofthemartial law
commandersare oftwo types. Somerelate to policepower of ajudicial
naturesuch as detention,seizure, etc.; others to administrative
policepower suchas aban onassembly,press censorship,police checks,
etc. (article3of LawNo. 1402). It is thissortofpowerofregula-
tionthat isgivento themartiallawcommanders whoare responsible
(fortheiractions)to thePresidentofthe CouncilofMinisters. The
primeministerhas the responsibilityofassuringthe cooperationand
coordinationbetweenthe commandersofmartial lawindifferent
regions (40).
JudicialLevel
Theimplementationof thestate ofsiege canbeseenatthe
judiciallevel throughtheextentionofthecompetenceof themilitary
judicialsystemat the expenseofcivilianjustice. In thisareafour
broadthemesfordiscussion have alwayspreoccupiedTurkishjuridical
doctrineand jurisprudLnce.
TheConstitutionalityofCourtsKnownas "MartialLawCourts"
Article138 of theconstitutiongoverning "militaryjuris-
diction"is wordedas follows : The lawspecifiesthe offenceswhich
and thepersonswhomit is withinthe competenceofthemilitarycour's
to try intime ofwarorof state of siege" (paragraph5). Asthe
- 322 -
wordingofthe text shows, this clausedoes notmakeany provisionfor the
establishmentofnewmilitarycourts in timesofwar orduring astateof
siege. It onlyalludes (withthe firstparagraphofthesamearticle
whichstipulatesthat "militaryjurisdictionshall bemaintainedby courts
imbued withmilitary discipline") to asingle typeof judicial institution
the militarycourt. Consequently,militaryjustice intimesofwaror
stateof siege cannotbe administered'-y courts other than thosealready
in existence. It isonly their jurisdictionwhichvariesaccordingto
whether these are applied inpeace time, war time orduringastate of
siege. Militarycourts are vestedwithwidercompetence inthe latter two
cases as comparedwith th2 first. This seems to us, moreover,to be the
only interpretationinconformitywitharticle 32 (amended)ofthe con-
stitutionwhichprohibitsthe establishmentofoccasionalcourts, inorder
to ensure the impartiality of the judgesand the confidenceof theaccused
in them. This articlestipulates that"Nopersoncanbe triedbeforeany
authority other than the court towhose jurisdictionhe is legallysubject.
No exceptionalauthorityendowed withjurisdictionalpowerstoprevent a
personin this manner fromappearingbeforeacourtto whosejurisdiction
he is legallysubjectcan beset up." (41).
lowever, itmust be admittedthat inpractice thinqsdo nottake
this direction. The lawonthe stateofsiegeempowers theMinistryof
Defence to establishas oftenandin as many regions as itdeewsnecessary
courtscalled "martiallawcourts" and toappointjudges to them (article
11/7). leshalldiscuss later, under theheading "TheIndependence,
Impartialityand GuaranteesofJudges;'the inconveniences of this system.
For the moment, it is enough to stress that thepractice ol: establishing
new courts laid downby the lawcontrary tothe letterofthe two con-
r:titutions is legitimised byajudgmentof theConstitutionalCourt. It
is to be noted, concerningthe reasonsadvanced for this judgmentthat
juridical reasoninggivesway, toagreat extent, toconcernsabout
appropriatenesssuchas the inabilityofexistingcourts tocarry out
extradutiesfor which theywouldbe responsiblein case ofastateof
siege. Thus the ConstitutioaalCourtarrived .tthe conclusion that
article11/1 of the Lawdoes notviolatearticles32 and 138 of thecon-
stitution (42).
Besides,13months after theirdecisionwas given,anamendment
insertedintothe constitutionthe term "martiallawcourts" in orderto
permitmilitary courts to functionevenafter theabolitionofthe state
ofsiege. In this context,the amendmentcouldnotthus be evokedas
proof of justificationorconstitutionalisationof "martiallawcourts".
It is reallyamatterofapurelyformal, proceduralclauserelatingto
the functioningofthecourtsafter the liftingof thestateofsiege
topermitthemto finishwithtrials in progress.
Before closingthis discussion,anotherparticularlyinteresting
aspectofthe same judgment shouldbe raised. AccordingtotheCon-
stitutionalCourt,article 15of thelaw inquestioncontradicts the
principle of"theregulationby lawofthematerialcompetences of
"martiallawcourts", in that ithas the effectofconferringonthe
militarycommanders responsible forimplementatingthe stateofsiege
the discretionarypower to decideif the knowledgeofthe crimesand
offencesenumerated inarticle 15 shouldbereferredtocivilianor
militarycourts; whileaccordingto the terms ofarticle138 (amended)
ofthe constitution,militarycourts areonlyqualifiedto recognise
crimes andoffenceswhich thelaw specificallymakesprovisionfor.
Withregardto article32 ofthe constitution,theCourt tooknoteofa
- 323 -
secondviolation, sincetheeffect ofarticle 15 ofthe lawis "to
attributetothemilitary courtsthe competence toreceive fileson
crimes and offencescommittedbeforethe declarationofastate of
siege,whilstaccordingto the termsofarticle32 (amended)of the
constitution,thecompetence ofacourtoflawshould be definedby
lawpriorto theeffectivecommitment of thecrimeoroffence" (43).
Baseduponthis judgmentof theConstitutionalCourt,the
legislator could intervene toregularise the lawon thestate ofsiege
and tomodel it onconstitutionalprinciples (44).
TheQuestionof Jurisdiction
Materialjurisdictionof military courtsduring thestate of
siege is governedbyarticle 15 (amended)of the lawon thestate of
siegementioned above. We find quitealonglistingof crimes and
offences. This list is takenfrom thePenal Code, theLawontheFree-
dom of Assembly and of organising Demonstrations, the MLwon Associations,
etc. Moreover,with article16 of the lawonthe state ofsiege,con-
traventionsof theordersofthe MartialLawCommander aswell as "the
propagationof falseorexaggeratedinformation"which couldprovoke
panicinpublicopinion becomecriminaloffences. The trialof these
crimes also comes under the jurisdictionof "martiallawcourts".
Personal jurisdictionofmilitarycourts duringthe stateof
siege covers individualperpetratorsofacrime which,amongothers,
would have causedthe declarationofastateof siege. Moreover, the
trialofpersons whosecrimesare related to thosewhich already fall
withinthe jurisdictionof the "martiallawcourts"comeswithintheir
competence (45). Exceptions of certaincategories ofpersonssuchas
magistrates, ministers, members ofparliament,senators,etc., are listed
inarticle 21 (amended)(46).
Territorialjurisdictionofmilitary courtsin case ofastate
ofsiege is not restricted to crimescommitted in regionsunder martial
law; it cancover the wholecountry. Indeed, article 13 of thesaid
lawstates that certaincrimes (i.e.those committedalongwith other
crimesspecificallywithin the competenceofthemilitarycourts) are
heldto be within thecompetenceof these courts evenif theywerein
factcommittedoutsidethe regionaffected bymartial law. It is thus
aquestion ofthe fusionofproceedings.
The temporal competenceofmilitarycourts duringastate of
siegemustbe limited to the durationofthe state of siege. It is a
principlewhich followsnecessarily fromthedistinctionbetween
"normal (orordinary) times"and "statesof exception". Thisruleis
brilliantlyreaffirmed by the ConstitutionalCourtwhichin its judg-
mentof15-16February 1972 repealed article 23 ofthe lawonthestate
ofsiegewhichmadeprovision for the continuationof theactivitiesof
themilitary courts after the liftingof thestate ofsiege. According
totheCourt, this clausehad an importwhichwas "manifestlycontra-
dictory toarticle 32 (amended)of theConstitution" (47).
But the cancellationofthis article wasineffective for the
GNATensuredthat the repealed clausewasinsertedinto the bodyof the
constitutionin ordertorenderthe decisioninoperativeand toprevent
afuturereviewofthe constitutionality
of thispoint. Thus the
insertionof theprovisionalarticle 21,stipulatingthatthesecourts
- 324-
shouldcontinue to functionevenafter the liftingofthestateof
siege (48)furnishesatypical exampleof "constitutionalfraud". A
similar clausewas introducedsubsequentlyintothe textofthe law
onthestate of siege (49). In the interim,the ConstitutionalCourt
haddecidedonthe constitionalityofprovisional article21 ofthe
constitution (50).
The Independence, ImpartialityandGuarantees ofJudges
The militarycourts are composedoftwomilitaryjudges and
one rankingofficer (51). Theoriginal text of article 1.38/4 ofthe
constitutionstipulating that "themajorityof the membersof amilit-
ary courtmust have thequalificationof judge"wasrevised sub-
sequentlyto allowfor departures fromthis principle in times ofwar.
This amendment, however, was repealed by the Constitutional Court (52).
It decided in anotherjudgment that the nominationof rankingofficers
to militarycourtsdid not contradict the constitution (53).
The judges of these courts are appointed by the Minister of
National Defence (54) and therefore by the executive, even though with
regard to the oppointment of civilian judges the general rule provided
for in the constitution prohibits an" executive intervention in this
area. It is the SuperiorCouncil of the Magistracy,made upof judges,
which can "rule on all thequalifications of judges" (article144/1of
the constitution) . There is no provision made for this latter guarantee
in the organisationofmilitary justice. The systemthus suffers from
a serious flaw for there a-e several reasons for believing that
political preferences play a certain role in the appoLntmont of judges to
"martial !iw courts", especially because they are madc after the majority
of the crimes under the jurisdiction of these courts have been committed.
It is for this reason that the list of appointees prc.'okes reactions of
discontent in left-wing political circles when the government has a con-
servative tendency (during the 12 March r6gime, for example) and in right-
wingcircles whenthe government tends to beprogressive (asinthe case
of the state of sieqedeclaredby the governmentof Mr. Ecevit on 26
December 1978). Furthermore, anychange in governmentaffects to a
greater or lesserextent the compositionofthese courts :anexperience
which occurredvery recentlyafter the resignationof Mr. Ecevit'sgovern-
ment and the formationof thatofMr. Demirelwhichcaused noticeable
changes in the judicialranks of thesecourts.
Anotherdanger for the independence of the courts is that the
minister has the power to dissolveamilitarycourt evenif it is in
session, and sendits file to another any timehe deems it appropriate.
Court No. 1,responsible to the ixartial law commanders of Istanbulmet
with this fate for it refused, contrary to the others, to applyarticle
146of the penal codewhich sanctioned "attemptsto overthrowconstitu-
tional order" by capital punishment for personsaccusedof having
attackedbanks, kidnappedpeople, takenhostages, etc. For, according
to this court,these acts did not constitute"appropriatemeans of
overthrowingconstitutionalorder" and their perpetratorsshould
only be condemned by virtueof the articlesgoverningcommon lawoffences.
CourtNo. 1was thusdissolved by the Ministryand its files transferred
to Court No. 3,known for its favourablepositiontowards theapplication
of article146 of the TurkishPenal Code (55).
Anotherthreat to the independenceof judges is the fact that
theircareer advancementdependsonthe wishesof their military
- 325 -
superior (56); that is, the martial lawcommanaor inthis case. Ajudge
whofails to gainpromotionwithin the time limits lrovided for by the
lawcan bedismissedas well as onewho "takeson opinionsproscribed
by law" (article 22 of Law No. 337). Moreover,judges are forbiddento
resign during theperiodof the applicationof the state of siege
(article2).
The Constitutional
Court has, to date, never had the opportunity
of making a pronouncement
on the conformity or non-conformity
of these
clauses with the constitution
(57) . However, the clauses concerning
this system of promotion which m,kes judges dependent on the executive
were removed from the laws governing two organs of the miliary system of
justice. Indeed, the Constitutional
Court, considering that such a
system would endanger the independence
of the courts and the guarantees
provided for judges, repealed the few legislative clauses on the status
of judges of the Military Court of Cassation as well as those of the
Supreme Administrative
M'lilitary Court (58). According to the Court, the
principle of independence
recognised by the Constitution
and the
guarantees itprovideG for judges shouldbe valid formilitary judges
even in case of waror state ofsiege (59). But in these latterpro-
ceedingsconcerning the examination
of aconstitutional
amendment,the
Constitutional
Courtdid not have the means to enter intodetailsand
to tacklethe systemitselfdirectlyas was the case in its judgment
of 15-16February 1972.
ThePenal Procedure
Wewill limit ourselvesto pointingout under thisheading the
fewclauses of the militarypenalprocedurewhichseem incompatible
with
the fundamental Drinciplesof law.
Firstof all, the righttodefence is severely restricted in
the caseof adeclaraticnofastate ofsiege becauseofarticlesof
the lawon theorganisation
ofthepenal procedureofmilitary courts
(LawNo. 353). The right of the accusedor defendantto examinehis
file is not recognised (60). The accused ordefendants presumed tohave
disturbed the smoothrunningof sittings areprohibited fromentering
the courtroomand in the event of asubsequentoffence,permanently
deprivedof theright tobe presentatanyother sessionsofthe trial
(61). Lawyerssometimeshave prison sentences imposedonthem for
having insulted the bench duringasession. The rightof theaccused
orof theircounsel to challengeonsuspicion ofpartiality is rescinded(62).
With regard to the publicity of sessiens, the lawpermitsthe
courtto censor the circulation
of reports. This measuremakesit
impossibleto informthe publicon the impartiality
of themilitary
judges (63). Moreover,the numberof formalitiesand thedifficulties
theypresentmakeaccess to the sessionsdifficult.
Finally, thecourt can base its judgmenton evidencefroma
singlewitnessevenif thewitness doesnot appearbefore it (64). This
boilsdown to acceptingasituationin whichevidence fromanimaginary
"witness"is enoughto condemnthe accused evento capitalpunishment,
since according to the terms ofthe law,militarycourtscan content
themselveswith evidencecollected by the policeduringpreliminary
inquiries.
- 326 -
In principle, the clauseswhich have just beencited are only
applicable in timesofwarwithin the systemof the lawonthe organisa-
tion of the penal procedureof themilitarycourts. But their implement-
ationeven incaseof the declarationof astateof siege is made
possible byaspecial clauseof the lawonthe stateof siege (article
18). This clause constitutes the keystone of the system of penal pro-
cedureapplied by militarycourts duringastateof siege.
Pights and Liberties
Contraryto the constitutionof 1924 which specifically enum-
erated rights which couldbe suspended(luringthe implementationofthe
state of siege, and whilst in the draft 1961 constitution the same
issues werespecificallymentioned (article59/3), the textof the
1961 constitution is silenton the subject. Article 24 merely treats
it in abstract and general terms : "restrir Ion or s:spension of
liberties". It authorises the legislator to determine its rules. The
lack of a precise constitutional clause in this domain constitutes a
serious draw-back in legislative measures taken in this case.
This is indeed the context for the laws on the state of siege
and the organisation and procedure of military tribunals. These laws
restrict and make provision for suspensions which cover almost the whole
range of human rights including the right to defence before judicial
authorities. As for the universities, the Law on Universities - and
not the constitution - gives the Council of Ministers extraordinary
powers which could, if effectivelv applied, challenge the rights and
liberties to teach or to be taught.
Put the problemof freedom duringastateof siegecannot be
reduced merely to the question of making or not making an inventory
of rights that can be suppressed. The crucial question is : to what
extent can the law restrict or suspend a right or freedom ? Thisproblem
i, also in part posed by the contradiction between two clauses of the
constitution. While article 124 speaks of "restriction and suspension"
of liberties, article 11/2 stipulates that "the law cannot affect the
essence of fundamental rights and liberties". Should this article, to
be found in the First Chapter, entitled "Fundamental Clauses" of the
second part of the constitution, he respected even in case of a state
of siege,or to the contrary is article 124 an exceptionto it ?
The Constitutional Court seems clearly in favour of the second
interpretationor solution (65). But its standdid notprevent the
Supreme Court fromdeciding in thesame proceedings that a clause of
article 15 of the law on the state of siegewhich gave the commander
thepower todetainaccused persons for aperiodof 30dayswithout
being obliged to take thembefore ajudge, contrary toarticle 30of
theconstitution (66), was unconstitutional. Thus, the existenceofa
precise constitutionalnormconcerning personalsecurity (thehabeas
corpus) permitted theConstitutionalCourt to go back onits former
standin order to correctit.
Anotherquestionrelated to "rightsand libertiesduringastate
of siege" is the following :are the effectsof the declarationofthe
state of siegeproduceddirectly and immediatelyat the level ofrights
and liberties ? Theanswer is certainlynegative, for the enforcement
of the systemof the state ofsiegedoesnot causeimmediateand automatic
restriction and suspension ofliberties. Citizens generallyhave the
- 327 -
right toexercisetheir rightsand libertiesasbefore untilthe martial
lawcommanderdecidesotherwiseand informs thepublicaboutit through
general communiqus
and instructions.
It is timeto specifythat the
measurestakenby thecommander
shouldbe limitedandproportional
to
thedemandsof the situation
and shouldbe related to the causeofthe
declaration
ofthe state of siege in question.
The firstof these
principles,
thatis, the one relatingto the "proportionality
ofmeasures
taken"forms apart ofgeneral legal principles
and is, besides,
specifically
provided for in the EuropeanConvention
on HumanRights
(article15/1) of whichTurkey is asignatory.
Reviewof its Legal Conformity
WhenweLpeakof "legalreview"duringastate of siege, there
are three fundamental
issuesto consider.
Firstly, it mustbe verifiedwhether ornot the decisionstaken
by the martial lawcommanderare in line withthe law. This issuewould
appear tobe resolved ifone restrictsoneself to the letterof the
constitution
since accordingto the wordingof article 114 (amended)
"Thejurisdictional
channels areopenagainstall theprocessesand actions
ofthe administration".
It must,however, be admitted that theoriginal
text of thesame articlewas more geared towards the imposition
of legal
controlover the processesof the authorities
of thestateof siege. It
stipulate,
indeed, that "under nocircumstances
caninstruments
or
actions of the administration
ever remainoutside the supervision
of the
legalauthorities".
But that is not the onlyproblem,for the ambiguity
of thearticlesof the lawon the stateof siegeempowering
themilitary
commander
to takeprohibitive
and restrictive
actions is so great that
it makes anyeffort by the Councilof State to reviewalmostillusionary
(67).
It is importantfurthermore
that thebasic legislative
foundation
for the implementation
of the state ofsiegebe checked for its con-
formitywith the constitution.
This legislation
comprisesnotably the lawon thestateofsiege,
the lawon the organisation
andprocedure ofmilitarycourts, as well as
thoseon the statusof judges. We have justcited in this articlea
certainnumberof judgments
given by the Constitutional
Court, whosework
in this areadeservesappreciation.
However,the efficiency
ofaconcrete
reviewofconstitutionality
is compromised
in certain instancescited
above becauseof attempts to commit "constitutional
fraud"on thepart
ofthe legislature.
Finally, we are face to face with the problemofthereviewof
thelegality and constitutionality
of theact ofdeclaring the stateof
siege. In theTurkishconstitutional
systemthe courts responsible
for
reviewing
the constitutionality
of the laws and the legalityof
administrative
processes
are the Constitutional
Courtand theCouncil of
State. Theissue ofknowing towhichcourtwill belong the powerto
verifyand validateastateofsiege thus dependsabove all on the res-
ponse to the followingquestion:what is the juridical
natureof the
processbywhich astate ofsiege isdeclared ?
The juridical natureofthis processis quite ambiguous.
Noone
considers that this is an administrative
processsince it is theminis-
terial councilthat takes thedecision.
For themthe courtthatis
- 328 -
competent todecidethe validityofthe processin questionis the
CouncilofState. Othersclaimto the contrary,that theprocess
for declaringthe state of siege,which is administrative innature
tobeginwith,subsequently becomesconverted intoalegislative
instrumentdue tothe parliamentaryapprobation whichis given
immediately afterwards. The logicalconsequences ofthe latter
affirmation is thusto consider the ConstitutionalCourtas the
competentauthorityin this case. Thedecisionofcontrol onuniversi-
ties is clearlyofadministrativenature :accordingtoarticle114
of theconstitution, theCouncilofState is thus responsiblefor
reviewing the constitutionality of thedecision.
In the absenceof aconstitutionalclausegoverning the sub-
ject, it became the responsibilityof jurisprudence to resolve the
problemandmakeup thisdeficiency in thepositivelaw. The two
SupremeCourtsraised thequestionwithout, for all that, beingable
to produceapositiveanswer. Indeed, they relinquishedthematters
before themondifferent grounds. TheCouncilof State,which found
itself incompetent to examinethe validityof the declarationof the
1970stateof siege,based itsdecisionon the notionthat the process
in questionhad been converted intoalegislativeinstrumentafter its
approbationby GNAT (68). As to the Constitutional Court, it decided
that theexamination of thevalidityof this processcouldnot be its
responsibilitysince the inst-umentof parliamentaryapprobationwas
neither in the formal normaterialsense a"law"buta"resolution"(69).
It therefore follows thatin Turkishlaw, thereis nomeans
available todispute the validity of thedeclarationof astateof
sieqe,dueononehand to the lackofspecificconstitutionalclauses,
and on the other to aconflictarisingfromdenialof judicial res-
ponsibilitywhichhascropped upbetweenthe twosuperior courts. Here
again,the systemis seriouslyflawed.
-0-0-0-0-
- 329 -
APPENDIX
Since this articlewas written,newdevelopmentshaveoccurred
whose impact onstatesofemergency is ofparticularimportance :on
12September 1980,militaryarmed forcesseizedpower and theNational
SecurityCouncil (NSC)was established as the newpoliticalpowerunder
the presidencyofGeneral KenanEvren. Consequently, the parliament
and thegovernment established by the 1961 constitutionwere dissolved;
legislativeand constituantpowerswere transferred to the NSC.
Shortly after, the NSC adopted three laws legalising the
situation. Accordingto the Lawof 27 October 1980, laws, decisions
and announcementsadopted by the NSCshallbe considered as amendments
to the constitutionin caseofconflictor contradiction
with this
latter text. Besides, no legal actionmay be institutedagainst any
decisionof the Council.
The secondstage ofthis transitorial r6gime was the formation
of a160-memberNational ConsultativeCouncil (mid-1981)which tookup
its dutieson 23October 1981, withthe principal taskofdraftinganew
constitution.
Legislationregarding statesofexceptionhas beenamended,
withthe main resultthat :
- thejurisdictionof the martiallawauthoritieshas
beenextendedto controllingand preventivefunctions
by aLawof 19 September1980. These authoritiesmay
thus, forexample :
prohibit thediffusionand the communication
of
printedmatterorevenorder theseizure of such
products,andprevent the runningofprinting
houseswhich contributedtotheirprinting;
prohibit strikes and lock-outs, tradeunion
activities,publicmeetingsanddemonstrations
aswellas associations' activities;
-- suspend teachingin secondaryschools orin
universities, etc.
- the controllingauthoritiesare now responsibleto
theChiefof Staff (1)instead ofthePrimeMinister,
aswas the case under thepreviouslegislation;
- militaryjustice has seen its fieldofcompetence
extendedat the expenseofcivil justice. Not only
hadtheNationalSecurityCouncil to setupmilitary
tribunals followingthe proclamationof thestateof
emergency inthe wholecountry, but thenewlegislation
increases the Courts'legal competenceand territorial
(1) Lawof14 November1980 (No.2342)
- 330-
jurisdictionby addinganewlistofcrimes (suchas
"allcrimesagainst the Republic,the National Security
Council,national security",etc.). Furthermore,the
MilitaryCourtofCassation is competentfor judgingthe
so-called "d~litsd'opinion"as prescribedin articles
141 and 142 oftheTurkishPenalCode.
Finally,criminalprocedure (civilianandmilitary)has been
amendedbyseveral Acts :
- Lawof 19September 1980,accordingtowhich the controlling
authoritieswill be competentfordecidingif the casemust
be triedby acivilian ormilitary court; penalty of imprison-
ment issuedbymilitarytribunalsmaynot be suspendedor
converted intopecuniarypenalty. The right ofappeal is
deniedto persons sentencedbymartial lawcourts to terms
ofless than threeyears' imprisonment;
- Lawof 14 November 1980provides,among otherthings, for
the establishmentofone-judgemilitary tribunals, whichare
competentfor judgingoffenceswhosepenaltiesdonotexceed
5years' imprisonment. Furthermore, thedurationofthe
adjournmenthas beenreduced (from30 to 15 days, and to 30
daysfor mass trials);
- Lawof7January 1981, amends theCode ofCriminalProcedure
and facilitates thecontinuationofthe trial in theabsence
of theaccused bymodifyingtheprocedureof objection. Law
of 21January1981 brings this changeintothe fieldof
military justice.
One of themajor consequencesof the state of emergencyproclaimed
on 12September 1981, is an increasedinfringement of fundamentalrights
and freedoms.
Freedomof expressionis ahnlishedby aphenomenonof"self-
censorship" in thepress andby amarked tendency to increasethepenalties
against theauthorsof "d6litsd'opinion" (suchas communistpropaganda)
evenif theywere committedbefore 12 September.
Besides, the length oftemporary arrestthreatensthe
invio.ability ofthehuman being. Combinedwith theimpossibility for
the detaineeto communicatewiththe defence lawyeror to appeal against
the de:isionscfdetentionissuedby themartiallawauthorities, it
may encouragethepoliceofficersto use any means to obtaina"con-
fession" :pressure,maltreatmentor even torture. Although the National
SecurityCouncilstrongly condemnstorture and tends to examineany
allegationof suchpractice,it cannotpreventcasesofdeathfollowing
"altercationswith thepolice forces". The figures availableup to now
are all themorefrightening in that it is impossible to checkwhether
all thesedeathswereduetoa"useof forcewhich isnomorethan
absolutelynecessary".
Capitalpunishmentis increasinglydemandedbythe military
prosecutor,particularly formembersand organisersofmajortrade
unions (DISKandMISK)whohavebeenarrestedon amassivescale since
thi activities of the tradeunions were suspended, theirpremisesshut
downand their administrationtransferred toan administrator.
- 331 -
In brief,and as theInternational
CommissionofJurists has
writteninadocumentsubmittedto the CouncilofEurope (2), the new
Turkishlegislationin the field ofpenal militaryjusticehas short-
comingssuchas :theestablishment
of newmilitarytribunals after
the commissionofcrimes and identification
ofauthors, theabsorption
ofcivil justicebymilitary justice, thecompetenceofmilitarycourts
for judging"d~litsd'opinion", the augmentationofpenalties byamend-
ments tothe PenalCodeand grave restrictionsofthe rightsofthe
accused. All thesenewprovisionshavebeenadopted in flagrant
viclationofarticles6and13 ofthe EuropeanConventiononHuman
Rights.
-0-0-0-0-
(2)CONSEILDEL'EUROPE,Assembl6eparlementaire,
Commissiondes
questionspolitiques :SituationenTurquie,Lesd~veloppements
depuis l'intervention
militairedu12 septembre1980,Document
pr~sent6par laCommissioninternationale
dejuristes,Strasbourg,
le21 avril1981.
- 332 -
NOTESANDREFERENCES
(1) Communiqu~sNos.
19 and 27 ofthe C.N.U. (OfficialGazette,
30May 1960- 10515)
(2) Reportsubsequentlypublishedin theOfficialGazette
(1and2July 1960- 10540and 10541)
(3) Fromthis law (No.1of 12June1960- OfficialGazette,
14 June1960 - 10525) brieflyentitled "Provisional
TurkishConscitution" in judiciallanguage, the adjective
"provisional"
was to be laterremoved byLawNo.55 of
12 August1960 (OfficialGazette, 16August1960 - 10579)
(4) LawNo. 157 of 13 December1960 (OfficialGazette,16
December1960 - 10682)
(5) LawNo. 81 of 12 September 1960 (OfficialGazette, 16
September 1960- 10605)
(6) LawNo. 15 of 16July1960 (OfficialGazette, 11 July
1960 - 10548)
(7) LawNo. 45of8August1960 (OfficialGazette, 11 August
1960 - 10576)
(8) Cf.MauriceGargon,Thesis to be consulteOonthe leyitimacy
of ;.he legal institutions ofthe Turkish revolution,1960
(9) LawNo. 62 of 18August1960 (OfficialGazette,22 August
1960 - 10584)
(10) LawNo. 6of June1960 (OfficialGazette, 30June 1960-
10539)
(11) LawNo. 25 of 5July 1960 (OfficialGazette,20July
1960 - 10556)
(12) LawNo. 52 of 11 August1960 (OfficialGazette, 16
August 1960 - 10579)
(13) R.Arik,I.TrrkandD.Baykal :LegislativeMovementin
Turkey,Ankara 1960,p.9
(14) CNUcommuniqu6sNos. 3and 12 (OfficialGazette,30
May1960- 10515) andGovernment DeclarationNo. 1
(31May 1960- 10516)
(15) Press reportsof13 January 1961 and 1April 1961
(16) Pressreportsof 30September 1960
(17) LawNo.42 of2August1960 (OfficialGazette, 5August
1960 - 10570)
(18) LawNo. 114 of 27 October 1960 (OfficialGazette, 28
October1960- 10641)
- 333-
(19) LawNo. 84 of20September
1960 (OfficialGazette,
22 September
1960- 10610)
(20) LawNo. 105 of19October1960 (Official
Gazette,
25 October1960 - 10638)
(21) Forpublications
in WesternEuropean languages on the
27 MayRevolution
andon the 1961 Constitution,
see :
H.N.Kubali, "Les traitsdominants
de la constitution
de la seconder
6
publique tuu:kue" in Revue Internationale
deDroitCompar6,1965, No. 4; M. Kapani, "Anoutlineof
the newTurkishConstitution",
in Parliamentary
Affairs,
Vol. XVNo. 1; I.If.Ozay, "Lacostitutzione
della
seconda repubblica
Turka" in RivistaTrimestrale
de
DirittoPabblico,
1978, No. 3; and the collective
work
citedabove (seenote 3)published
by the Institute
of
Public Administration
for I'urkey and the Middle East
(22) Forconcreteexamples,
seeTurkish- press reportsof
28 October1971, 7November1972, 12 December 1972, 14
May 1972, 7October 1972, and 3April 1972
(23) On this last point, see "Turkish
Universities
Fall Silent",published
in INDEXonCensor-
ship, 2/1974, pp. 39 - 49
(24) For original and revised texts of the constitution,
cf.Annales de laFacult6 de Droitd'Istanbul,
Vol. XIV,
No. 20, 1964 (T.Orman,trans.) and AnnalesVol. XXI,
No. 37, 1973 (E.Tezic,trans.)
(25) See especially
"'The Rule of Law in Turkey and the
EuropeanConvention
on HumanRights; AStaffStudy",
inThe Review, ICJ, No. 10, June 1973 and The Review,
Nos. 5,9ond 12.
For the EuropeanCouncildebates
seeMinutes of the 24th and 25thordinary sessionsof the
consultative
assemblyheldon 22 Janaury 1973 and 14 May
1973. Amongthe reportspublished
by legalobservers,
one can cite thoseof :Mr.Lafue Veron,"Political
trials andRepression
in Turkey" (AIJD,1971); Mr.Noll,
"MissionsofaLegal Observerto Turkey" (ICJ,March
1973); Messrs.Hunter/ Sir.0.Williams, "Amnesty
International
Missionin Turkey" (AI,December 1972);
and Mr.Evenson, "TheViolation
ofHuman Rights in
Turkey (August1972)
For thedefenceofthe 12 Marchr~gime,see :N.Erim,
"TheTurkishExperience
in the LightofRecent
Developments",
TheMiddle EastJournal,Summer 1972,
and especially
E.Hirsch, Renschenrechte
und Grund
Freuheiten
im Ausnalimezustand,
Duncker&Humblot,
Berlin, 1974
(26) TheLawof 22 October1971,No. 1488
(27) OfficialGazette, 12 September
1955
(28) CNjDeclaration
No. 19 (OfficialGazette,30May
1960 - 10515)
- 334 -
(29) Article1of theLawonthe State ofSiegeof13 May 1971,
No. 1402 (OfficialGazette,15 May1971 - 13837). For the
French translationof the originaltext of this law, cf.
Annalesde laFacult6deDroit d'Istanbul,Vol.XXI, No. 37,
1973 (S.Akyol, trans.)
(30) The NationalSecurity Council,made upof thePresidentof
the Republic, the presidentof the Ministerial Council, the
ChiefofStaff,Ministersdesignated bylawaswell as
Commanders of the armed forces, is abodywhichmakes
recommendationsto the CouncilofMinisters fordecisions
of the latteron mattersofnational security (article111
of theConstitution)
(31) Article2of the Lawof11 December1962,No. 129
(32) LawNo. 1488 of 22 September1971, amendingthe
Constitution
(33) Indeed, it is quite possiblefor the governmenttodeclare
astate of siege for aperiodof less than 2months. For
example, thatof 1974 hadbeen declaredfor 1month,but was
subsequently renewed several times (OfficialGazette, 20
August 1974)
(34) The state of siege declared in the Province of Anatolia
on 15 August 1974 was lifted by a 19 August 1974 GNAT
resolution (No.300,OfficialGazette, 20August 1974 -
14382). Similarly, the stateof siegedeclaredin several
provincesofEasternAnatoliaon 26 March1975 following
events in Iraq, was abolished by a GNAT resolution, No. 35
of 28 March 1975, (Official Gazette, 29 March 1975)
(35) Article 26.
(36) Decision of the CouncilofMinisters, No. 4/6325, of17
December 1955 andGNATResolutionNo. 1950of 19December
1955 (OfficialGazette, 17 and 20December1933)
(37) See above note 34
(38) Articles5,8,9and 11 of theLawonthe StateofSiege
(39) 3ilgen, TheState of Siege (inTurkish), Istanbul, 1976,
pp. 15 - 16
(40) Articles 3, 5/4 and 6of theLawon the State of Siege
(41) Theoriginaltext confirms this principlemoreclearly :
"Nopersoncan appearbefore anyauthorityother thanthat
to whosenatural justicehe is subject. No exceptional
jurisdictionpreventingthe indidivual frombeing taken
before the authorityto whosenatural justicehe is subject
canbe established'.
(42) Judgmentof15 - 16February 1972, No. 1971/31,1972/5 (in
Revue desArrFtsde laCourConstitutionelle (inTurkish),
No. 10,pp.178 - 179. Alongthe samelines,Decisionof
-' 335 -
theMilitary
CourtofCassation,
Section4,of15
December
1970,No. 1970/556,
1970/598
(43) Onthisissue, seeICJPress Releaseof14 February
1973
(44) LawNo.1728of15May 1973 (Official
Gazette,
20
May1973- 14540)
(45) Articles
13 and 15 ofthe Lawon the StateofSiege
amendedbyLawNo. 1728
(46) Provision
was notmade forthese exceptions
in the
original
textofthe law. This inadequacy
resulted
in tho quashing
decisionby the Constitutional
Court
(Decision
of15 - 16 February
1972, alreadycited).
Lateron, the legislator
amendedarticle 21 byLawNo.
1728 to incorporate
theexceptions
(47) 15 and 16February
1972, Decision
already cited
(RevueNo. 10, p. 109)
(48) Amendment
effected
byLawNo. 1699of 15May1973
(Official
Gazette,
20May1973)
(49) Provisional
article2amendedbyLawNo. 1728 of15
May1973 (Official
Gazette,
20May1973 - 14540)
(50) Judgment
of15April 1975, No. 1973/19,
1975/87
(RevueNo.13, pp.448 --451)
(51) Article 2of the Lawon theOrganisation
and Procedure
of Military
Courts of 25 October1973, No. 353 (Official
Gazette,
26 October1963 - 11545)
(52) Article 138 amendedby LawNo.1699of15March 1973
(Official
Gazette,March 1973) andcancelled
bythe
decision
of the Constitutional
Courton 15April 1975,
No. 1973/19,
1975/87 (RevueNo. 13, pp.447 - 448)
(53) Decision
of15 to 16 February
1972 (RevueNo.10, p. 181)
(54) Article 1ofLaw No. 553, Article11 ofLawNo.1402
(55) Cf.Turkishpressreports of16 May1972
(56) Article 12 ofthe Lawon theStatusofMilitary
Judges(no.357)
(57) In thejudgmentof15 - 16 February
1972,6judgesout
of15declared
thattheMartialLawCourtswerenot
independent
andvoted forthe cancellation
ofarticle
11 ofLawNo. 1402. But the majority
ruledthat the
courtcould notmake apronouncement
on thematter,
giventhe fact that the statusofmilitary
courtswas
governed
by anotherlawwhichwas nottheobjectofa
requestforcancellation
duringthese proceedings
(Revue
No. 10)
- 336-
(58) Decisionsof 10January 1974, No. 1972/49,1974/1 (Revue
No. 12,pp.26- 28), of12December1975, No.1975/159,
1975/218 (RevueNo. 13, pp.685 - 690), of 16June 1977,No.
1977/16, 1977/86 (RevueNo. 15, p.420)
(59) Decisionof15 April1975, alreadycited innote 50. (Revue
No. 13, pp.447 - 448)
(60) See, forexample, thejudgmentofthe MilitaryCourtof
Istanbul (No.1), FileNo. 1971/26 (Report,pp. 77 - 78)
(61) Article143 of LawNo.353 amendedbyLawNo. 1596
(62) Article40 ofLawNo. 353amendedby LawNo. 1596
(63) 1rticle 143, alreadycited
(64) Article153 ofLawNo. 353 amendedbyLawNo. 1596
(65) Decisionof 15 - 16February1972, cited above (RevueNo.
10, p 667).
(66) Article30, amendedbyLawNo. 1488, of 22 September1971.
Thisarticlewas subsequentlyrevised asecond timeandthe
periodofdetentionwas changedto 15daysin the eventof
astateof siege. (LawNo. 1699of15 March 1973) (Official
Gazette,20March 1973)
(67) P.Bilgen, op.cit.pp.21 - 22
(68) Decisionof3July1970,No. 1970/389, 1970/442
(69) Decisionof 17 November1970,No. 1970/44, 1970/42 (Revue
No. 8,pp.443 - 447). Letus repeatthatin Turkishlaw,
the constitutionalityofthedifferencebetweenparliamentary
laws an3 resolutions is not amatterfor reviewbythe
ConstitutionalCourt,exceptin the case ofafewexceptions
specificallyprovidedfor in the Constitution.
-0-0-0-0-
- 337 -
STATESOFEMERGENCYINURUGUAY
CONTENTS
Page
I. INTRODUCTION ..........................................
339
II. STATESOF EMERGENCYINURUGUAYANLAW .....................
341
PromptSecurityMeasures..................................
342
Suspensionof IndividualSecurity........................
343
TheState of InternalWar.................................
344
III. CHRONOLOGICALREVIEWOFEVENTS...........................
344
IV. ABUSEOF STATESOF EMERGENCY..............................
355
PromptSecurityMeasures..................................
355
Abuseof the SuspensionofIndividual Security ........ 359
The Stateof InternalWar- MartialLaw..................
360
V. CONCLUSIONS ...........................................
365
-0-0-0-0-
- 339-
I. INTRODUCTION
Astateofemergencyhas existedin Uruguayfor 14 yearsand
hasprofoundlyaffected thewholeofits society,forwhomthe situation
wasquitenovel. Indeed, the countryhad enjoyeddecadesof firm
institutional
stability,withapolitical systemthatuphelddemocracy
and theprinciplesofrepresentative
government. Itsconstitutional
regimeestablishedabalancedsystemofseparationand coordinationof
the executive, legislative andjudicialpowers,eachofwhichwasres-
ponsibleforone of themain functionsof the state. Thiswas the
foundationof theruleof law,whichhad for longprevailedinUruguay.
Fromasocialand culturalstandpoint, therewas advancedsocial
legislation,
ahighstandardof living compared tothe restofthe
region, free educationat all levels andaliteracyrateof 95%of the
populationover the ageof ten. Therewere noracialproblems or
communication
difficulties
amongthe 2.9millioninhabitants asSpanish
istheonlylanguagespoken.
Domesticlaws stipulated anumberofmechanisms for thepro-
tectionofhumanrights and fundamentalfreedomsas guaranteedbythp
constitution.
Further, theprovisionsofvarious international
treaties
and legal instruments towhichUruguay isparty,and whichrecognisethe
rights ofthe people to imposeobligationsonstates, could beinvoked
beforenationalcourtswiththe samebindingforceas nationallaw.
Inthecourseofafewyears, however,starting in thesecond
halfofthe 1960's, the systemofrepresentative
democracywas completely
eroded,andthe ruleof lawwasno longerrecognised.
Thegovernment
wasforced toask for thehelpofthe armedforces in dealingwith armed
opposition,andhumanrightsceased tobe protectedandwere gravely
violated. Thisretrogressive
processculminated in amilitary coup
d'6tatin June1973, which setupar~gimedescribing itselfas
"military-civilian".
It introducedanauthoritarian
and anti-juridical
powerstructure,underwhich themainfunctionsofthestatewerecon-
centrated inthehands ofanexecutivedominatedby the armedforces.
The factors leadingto thebreakdownofthe ruleoflawwere
initiallyeconomic,and later includedterrorist attacks byarmed
guerillas. Theprincipalfactor asevere economiccrisis,due to
was
aseries ofinternational
anddomesticcauses,which thecountry's
economicstructureswere inadequatetomeet. Featuresofthe crisis
werestagnationofproduction,theslowingdownofthe economy,adrop
in thepricesofrawmaterials (meat,wool, hides)on the international
marketandincreased concentration
ofwealthinthe handsofafew,as
asmallsectorderivedhighprofits fromfinancial and speculative
activities.
Thepurchasingpowerof wagesand salariesfellwitha
consequentreductioninthe standardoflivingand the consumption
capacityof apartof thepopulation.
Therewas unemployment,
rampant
inflation (1), impoverishment
ofthemajoritymiddle-class,
ashortage
(1)Costoflivingincreaseindices :
1967 ....... 122.1% 1971 ....... 39.4% 1977 ....... 51.7%
19E8 ....... 64.1% 1972 ....... 94.7% 1978 ....... 46.0%
1969 ....... 14.2% 1974 ....... 107.2% 1979....... 83.1%
1970 ....... 20.7% 1976 ....... 51.4% 1980 ....... 42.8%
- 340 -
ofdecenthousingandhighcostofavailablehousing,inadequatehealth
care,reduced schoolattendance due to the needto earnaliving,retro-
gressionofsocialand labourlegislation,and corruption and financial
scandalsin officialcircles. Thiswas accompaniedbyseveralcurrency
devaluations (2)and astartlingincreasein foreigndebt. Theexternal
debtamountedalmostto the valueoftotal exportsover threeyears.
These factors led to increased discontent,as witnessed bythe
strengtheningof the tradeunionmovement,which in 1964 combined its
forces in atradeunioncongress, theConvencion Nacionalde Trabajadores,
as well as of thepolitical oppositionforceswhichdemandedsubstantive
solutionsto the crisis, implyingstructuralchange.
Disillusionmentat the failure of the governmentto adopt
effectivemeasuresto meet this crisisled to the creationof armed
guerillagroups usingterroristtactics and thisin turnled to the
emergenceof extreme right-wingarmed groupswhichcarriedout armed
attackson left-wing activistsand militants.
Thegovernment reacted to thequantitative andqualitative
increasein tradeunionand politicaldemands and the continualharass-
ment fromtrmedopposition movementsnot by attempting to come to terms
withthe factors underlying the situation,but ratherby restricting
itself to combatingtheirmanifestations and consequences. Repression
seemed to be their onlyresponse.
As the civilianpoliceprovedthemselvesunable to control
the terroristmovements, the governmentdecided inSeptember1971 to
put the armed forces incharge ofanti-subversiveactivities, and the
policewereplacedunder theirorders. The armedforcesproceeded to
applypoliticalrepressionnot onlyto armedoppositiongroups,but also
to political and tradeunionopponentsingeneral. Theywerenotde-
terred by considerations ofhumanrights, nordid they respectthe rules
of the legal system. Once the armed forceswerecivenemergencypowers,
they realised thatthey could arrogate totalpowerto themselvesand
and beganmovingtowards thatgoal. Their actionwas guidedbythe
ideologyof national security,soprevalentinotherLatinAmerican
states.
They weresupportedby certainsectorsof theeconomywhich
were concerned :
- to block theleft-wingandprogressive forcesingeneral,
insofaras theyproposedstructuralchanges affectingtheir
interests;
- to instituteadevelopmentmodelbasedonan extremely
liberalconceptionof amarketeconomy whichwouldpromote
the concentrationof capitaland concommitantlyofinvestment,
withouttaking intoaccountthe social costofthe implementa-
(2) Theparityof thenationalcurrency and theU.S. dollarmoved
from240pesos toone U.S.dollarin 1972, to45,000pesosto
one U.S. dollarat theend of1982. The nominalvalueofthe
pesowas adjusted:1,000 pesosare nowequal toonenewpeso.
- 341 -
tionof thismodel;
- to promoteforeign
investment
through theelimination
ofprotectionist
barriersand obstacles,
thuspermitting
easyrepatriation
of capitaland toeliminate
the
subsidies
to national industrywhichenabledit to
competewith foreign products.
Those whopromotedthese views also considered
that future
governments
of the country shouldbe subject to the tutelageof tho
armedforces, and that the lattershouldmaintaincontrol of,orat
least have adecisive influenceon, key areasofpolicy decision-making.
The eventualattempt to enshrine
this viewin the constitution
put to
areferendum
inNovember1980was rejected by the electorate.
The mechanism
used to attaintheseobjectives
was thatofthe
stateofemergency.
Its uncontrolled
andabusive application
annulled
or rendered ineffective
all theprocedures
established
by law to pro-
tect human rights and fundamental
freedoms.
Furthermore,
the exceptional
powersprovided for In the constitution
in order to protect the nation
and itsdemocratic
systemwereused inUruguay to achievepolitical
objectives
which were counter to the interests of the nation and were
incompatible
with democracy
- theresult was aseries ofviolations
of
civil rights, such (is the right- to life, freedom from
arbitrary
arrestand detention,
freedomfromtorture
and ill-treatment,
rights ofCefenceand dueprocess
oflaw. Political
opponents
were fought with torture,
murder, enforced disappearances
and terror. Therewere
also violations
of the right to privacy,freedomof
expression,
assembly and association
and trade union
rights;
political
rights,whichwere suspended
for the entire
population
in 1973and whichhave supposedly
been re-
established,
but only for apartof thepopulation,
and
subject to severe limitations;
economicand social rights, in regard towork,wages,
healthcare,housingand the standardofliving in
general; and
cultural rights, throughrepression
ineducation
and
the restriction
ofvarious formsofartisticexpression.
II. STATESOFEMERGENCY
INURUGUAYAN
LAW
The Uruguayan
Constitution
of1967establishes
twomechanisms
to dealwithexceptional
situations
threatening
the life ofthe nation
whichcannotberesolvedby recourse to thenormalprocedures
establish-
edby the legal system. Those mechanisms
are the "PromptSecurity
Measures"
and the "Suspension
ofIndividual
Security".
- 342 -
PromptSecurityMeasures
Article168,paragraph 17, of the constitutionprovides
"ThePresidentof the Renublic,actingwith the ministeror
ministers concernedor withthe CouncilofMinisters, shall
have the followingduties
(17) Totakepromptsecuritymeasuresingrave andunfore-
seen cases of foreignattackorinternaldisorder,toreport
within24 hours to the GeneralAssembly atameetingofboth
Chambersor, where appropriate, to the Standing Conaissionon
the actiontakenand the reasonstherefor, and to abideby
itsdecision.
Withrespect to persons, thepromptsecuritymeasures
authoriseonly theirdetentionor transferfromone place
in the territory to another, provided that they do not elect
toleave it. This measure, like theothers, shall besubmitted
within24 hoursafter its adoptionto theGeneral Assemblyat
ameetingof both Chambersor, where appropriate, to the Stand-
ingCommission, whose decisionshall be final.
Suchpersons shall not be detainedon premises
intended for the incarcerationofcriminals."
Promptsecurity measuresare thus anemergency instrumrent which
canbeused to widenthe field of actionof the executivewhenit hasto
dealwithexceptional situations,describedas "graveand unforeseen
casesof foreign attackor internaldisorder", which cannotbe dealt
with by the normal machinery of the government. When theseconditions
exist, the executivemayapply thesemeasures,reportingwithin24
hours on the action takenand the reasons for it to thenational
General Assemblyor, ifthe Assemblyis in annualrecess, to the Stand-
ing Commission (3).
This widening of thepowersof theexecutivedoesnot empower
the executive to legislate, to issuedecree laws, as in other countries.
It mayonlyadopt specific administrativemeasures,generallyofa
police nature. It cannotadoptdecreesonmatters reservedfor
legislation,ordecreeswhichare permanentin characterand whose
provisionscontinue to apply beyond the stateofemergency. Every
measureor groupof measuresadopted in adica mustbe submitted to
Parliament "... whose decision shall be final". Thismeansthat
Parliamentmay set asideaspecificmeasure,or someor all ofthem.
It may alsocall toaccount the headof theexecutive (impeachmentof
the president) if he has acted in violationofthe laworthe constitu-
tionwhen decreeingpromptsecuritymeasures.
It is essential thatprompt securitymeasuresshouldbe applied
(3)Duringthe annualrecessofParliament, there is aStanding
Commission consistingof4senatorsand 7deputies.
- 343-
underparliamentary
control,as the legislative
power is, ashasbeen
saidinUruguayandoctrineand jurisprudence,
"themasterofmeasures".
Ithas the lastword, andmay decidewhethertheyshouldbemaintained
orcease. The constitution
seeks atall times to avoid combiningina
singlepowerofthestate thepower tomakelawand thepowerto apply
it.
Withregard to persons, thepromptsecuritymeasureshave
preciselimits. Apersonmay bedetainedor transferred
fromoneplace
in the territory toanother,andmayonly bekeptindetentionifhe
doesnotprefer to leave the country. If heavailshimselfofthis
option,hecannot bekeptindetention,
and hemustbe givenevery
facility to leave the country.
Again,every measureaffectingpersons mustbe communicated
within24 hours to the Parliament,
whichmay setit asideorelseraise
noobjections
to maintaining
it. Afinal constitutional
provision for
the safeguardof humanrights is that administrative
detention
mustnot
takeplace onpremises intended
forthe incarceration
ofcriminals.
In short,the UruguayanConstitution
establishes
aseriesof
limitations
bothon the declaration
of astate ofemergency andonits
application,
limitations
whichcoincidewith those set forth ininter-
national legalinstruments,
with those currentlyacceptedby legal doc-
trine, andwiththose listed in resolution
5(XXXI)of the United
NationsSub-Commission
onPrevention
ofDiscrimination
and Protection
ofMinorities
of 13 September1978. Thelatter are :
- emergencymeasures
must be officially
declaredby the
executivepower;
- theirlegalforce mustbesubject to approvalor
rejectionby the legislative
power;
- theirapplication
is subjecttocontrol bythe
legislative
power;
- they are temporary,
inasmuchas they representan
emergency
mechanismdesignedtodealwithexceptional
situations;
and
- theirlegal effectsareprovisional
andonlyremain
in forceas longas the exceptional
situationlasts.
SuspensionofIndividualSecurity
Article 31 of theconstitution
provides
"Individual
securitymay notbe suspendedexceptwiththe
consentoftheGeneralAssemblyor, if ithas beendissolved
or is in recess, the StandingCommission,
andin the
extraordinary
caseof treasonorconspiracy
againstthe
country,andeventhenonlyfor the apprehension
ofthe
offenders,withoutprejudice
to theprovisions
ofarticle
168,paragraph17."
- 344-
Thesuspensionofindividual security (i.e.of someofthe
rights andguaranteesestablishedby the constitutionandthe law)is
amoreextrememeasurethan thepromptsecuritymeasures,andfor that
reasoncannotbetakenby the executivealone. Itrequires the
authorisation oftheGeneralAssemblyor, ifit hasbeendissolved
orisinrecess, theStandingCommission. Inviewofits exceptional
nature and the implicitriskof misuseof power,theconstitution
limits its applicationto "theextraordinarycase oftreasonor con-
spiracyagainstthe country". Anotherpreciselimitationconcernsthe
scopeof the measure,inasmuchas the executiveiEempowered to suspend
someguarantees "... only for the apprehension oftheoffenders",who
as suchmust naturallybedealtwithbythe ordinarysystemof justice.
Inotherwords, once thisexceptionalmeasurehasbeen
decreed,the executivemaydo nothingmore thansuspend the application
ofsome guarantees andholdpersons under administrativedetention
withoutbringingthembefore the courtsfor so longas thesuspension
lasts andproviding thatthepersondetaineddoes notchooseto leave
the country. Ifthedetaineeshavecommittedpenaloffences, theyshall
be broughttojustice.
Onevery occasionwhenthe executiverequestedthe application
ofthe measures (inAugust1970 andApril 1972), Parliament,ongiving
itsconsent,emphasised thatonlysome constitutionaland legalrights
were suspended.
TheStateof InternalWar
Uruguayanconstitutionallawprovidesfor only twoinstitutions
to restore ormaintainpublicorderinemergencies, thepromptsecurity
measuresand thesuspensionofindividual security. InApril1972a
thirdwasadded, whichisnotprovidedfor norregulatedbythe con-
stitutionand for which therewasnoprecedent- theState ofInternal
War.
The state ofinternalwar hasneverexistedundertheUruguayan
Constitution. The constitutiondealswith "war"incases ofinter-
national conflict,warfarewithforeignstatesor powers,orso-called
internationalcivilwar (articles6,85 and 168). Theabsenceofany
provisionforastateof internalwarisnotagapinthe constitution
or an oversightonthepartofthe authors of the constitution. Its
omissionwasdeliberate.
III. CHRONOLOGICALREVIEWOFEVENTS
Astate ofemergencyin the formofpromptsecuritymeasures
wasadoptedf'rpoliticalreasons inNovember 1967. Thecircumstances
were these. Sixoppositionpoliticalparties agreedtopublish
jointly anewspaper. Inittheymade astatementcallingforchanges
inthe countrytomeettheeconomiccrisisand for theabolitionof
the 'privileges'ofthe oligarchy. The statementwasverystrongly
worded. Thegovernment's answerwastoclose the newspaperpermanently
and todissolvethe sixpoliticalparties. Thiswas the firstoccasion
onwhichpoliticalpartieshadbeenbannedinUruguay,and itwas con-
sideredaveryseveremeasureatthe time. Somemonthslater the
Parliamentadoptedaresolution,inaccordancewiththe provisionsof
theconstitution,liftingthepromptsecuritymeasuresandre-establishing
therightsofthe sixpoliticalparties.
- 345-
On28 June 1968, theexecutiveagaindeclaredastateof
emergency, whichisstill in force, at the same timeimposing,under
theprompt securitymeasures,afreezeonprices and wages and creating
anewbody (COPRIN)to beresponsible for authorisingprice increases
ofany type of productor serviceand forfixingwages. COPRINwas
also tointervene as amediator incollective labour disputeswiththe
power to decide on the lawfulness orotherwiseof astrike. Thesewere
matterswhichcouldonly be regulatedby law andnotbyexecutive
decree, since theyaffected the general interestand replacedthe
machineryLntroducedby lawto fix wages intheprivate sector. It
was, therefore, an improperuse ofthepowerto impose astateof
emergency. InDecember1968, theexistenceofCOPRINwasformalised
bylaw. In practice,theeffectof the controls imposedby thisbody
was thatpriceincreases rosemuch faster thanwages and the inflation
continued.
July 1968. Thepolice fired onstudentsdemonstratingagainst
the stateofemergency, causing,for the firsttime, thedeathsofa
numberofstudents.
Alsoin 1968, in the faceofanemployers' lock-outand
againstthe backgroundofaseriousbankingcrisis,widespreadstrikes
brokeout. Thegovernmentretaliatedwithrepressionanddismissed
183public andprivate bankemployees, whichledto amoreserious
strike, fromMay toSeptember1969.
In 1969, therewas astrikebypublic employeesin the
electricity and telephone (UTE)sectorswhich in turnwasrepressed
bydismissals. The armedforces intervenedforthe firsttime. The
navyoccupiedgeneratingplants,beatupstrikingworkersandimprison-
edsoneof themonan islandin -:he RiodePlataestuary. Shortly
afterwards, the army in its turn arrestedbankworkers andworkers in
otheroccupationswhowereonstrike. Abusingthe stateof emergency,
theexecutiveimposedmilitarystatuson workersemployedin banking,
electricity andwaterservices, thestate enterprisemanufacturing
alcohol (ANCAP), the railways (AFE)and otheroccupations. It also
imposed militarystatuson the police. The armyoccupiedplaces of
work andunion premisesandsome 5,000personswere internedin
militaryquartersfromwnere theywere takenevery day to theirplaces
ofwork.
Alsoin 1969 therewerestrikesbycold-storage operators
(ApriltoAugust)as wellas strikes (fortwomonths)ofdraughtsmen,
journalistsand newspaper vendorsinprotest attherepeatedclosing
ofnewspapersunder the stateofemergency.
Duringthisperiod, the existenceofarmedleft-wing
organisationsbecamepubliclyknown,such as the TupamarosNational
LiberationMovement (MLN-T), the Revolutionary PopularOrganisation
oftheThirty-thraeUruguayans (OPR-33),theWorkers' Revolutionary
Front (FRT), the Armedforcesofthe EasternRevolution (FARO). The
Tupamaroswas the mostimportantof these groups. Thepolice first
became aware of its existenceinDecember 1966. However,itwas not
tillAugust 1968that the group took their firstviolentactionand
nottill 1969that they couldbesaidto have becomeaguerilla
organisation.
Theywere responsiblefor armedpropagandaactivities,
abductionof governmentofficersandattackson gunsmithshopsand
arsenalsto obtainweapons,andon bankingandfinancial establishments
- 346-
toprocure funds. Thegovernmentmobilised thebestpolicecorps
againstthemand those arrestedwere triedby theordinary (civil)
courts. Defencecounseldenouncedthefirst casesof tortureof
politicalprisoners.
The growthoftheTupumaros, agroup previouslylargely
ignoredby thepublic,was certainlydue to therepression instituted
againstworkers,studentsand community groupsbymeans of the prompt
securitymeasuresadoptedin June 1968.
It is commonly believed, asaresult ofofficialpropaganda,
that the promptsecuritymeasures wereadoptedto combattheTupa-
maros. In fact, theywereadopted for economicreasonsand to combat
the oppositionby theunionsand studentbodies to certaineconomic
practicescurrent at that time.
InAugust 1970,the executivedecreed the 'Suspensionof
IndividualSecurity'for40daysfollowing theabductionand sub-
sequentkillingby the TupamarosofaNorth-Americanpoliceofficer
whowas actingas counsellor tothe Uruguayanpolice force.
Duringthe sameperiod,armedorganisationsofthe extreme
rightwerealsoemerging,such as the UruguayanYouth at theReady
(JUP), whichwas to take aleadingpartin armed attacksonsecondary
schoolsand othereducationalinstitutions topunish studentactivists.
Yet moreserious were the activitiesofthedeath squadswhichcarried
out dynamiteattacks onpremisesofleft-winggroups andabducted and
torturedto deathseveralyoungpeoplesuspectedofbelonging to
clandestine left-wingorganisations. Evidence of the participation inthe-
se squads,of personsoccupyingseniorposts in the government,the
police andarmed forces, andon the impunity withwhichtheycarried
out theseactivities, wasgiven beforeParliament by fourpolice
officerswhohad lefttheir ranks. However, nolegal actionor
investigationwas ever pursuedagainstthe persons accused; theinvesti-
gationwas closedat the policestage.
9September 1971. Followingamass escapeofpolitical
prisoners, organisedlargely by the Tupamaros, the governmentmade
the armedforces responsible forthe fight againstsubversion. The
CombinedForcesGeneral Staffwas created,bringingthepoliceand
the armed forcesunder asinglecommand.
Following anumberof spectacularactivitiesbyarmedleft-
winggroups, the armystartedprogressivelyand systematically to
applytorture todetainees. This startedinearly1972 and since
then torture and ill-treatmenthavebeen asystematicpracticeduring
the interrogationof politicalprisonersby membersoftheCombined
Forces.
14April 1972. Followingfreshactivitybythe Tupamaros,
thekillingofthree police officersand amemberofthearmedforces,
whoweremembers ofadeathsquad,the reactionwassuchthatPresident
BordaberryobtainedfromtheGeneralAssemblyauthorisation todeclare
aStateof InternalWar and the Suspensionof IndividualSecurity,
measureswhichwere tobeadded tothepromptsecuritymeasures still in
force. Politicaldetainees, whoby that timenumberedseveralthousand,
weremade subjecttomilitaryjustice.
- 347 -
10July1972. Underthreat!ofacoupd'6tat,Parliament
approvedlawNo. 14.068on the "Security
ofthe Stateand Internal
Order",establishing
theexclusive
competence
of themilitary courts
totrypolitical
offences.
Thiswas donebytransferring
political
offences fromtheOrdinaryPenalCode to theMilitaryPenalCode,
intuaing
attackson the 'moralstrength'
ofthe armed forces.
14 July 1972. When the Security
lawNo.14.068came into force,
theStateofInternalWarwasbroughtto anend. TheSuspension
of
Individual
Security
remainedin forceuntilJune 1973 and thePrompt
Security
Measuresweremaintained
and are still inforce.
Attheend of1972, the firstcrisisbetween thegovernment
and the armedforcesoccurred,
fromwhichthe latteremergedvictorious
andcontinued
tostrengthen
theirposition until theylaunched an
"unofficial"
coupd'6tatand forced thepresident
toaccept a"military
guardianship"
over the government.
Thisguardianship
becameinstitution-
alisedwith the creationof the National
SecurityCouncil (COSENA).
Although
therewas noconstitutional
provision
for it, COSENAwas
createdasan organofstate, formingpart of theexecutive
together
withthepresident
and the CouncilofMinisters.
Inpractice,
itbe-
camethemostpowerful
institution
in thestate. Itwas composed
of
the headofstate,fourof hisministers,
thecommanders-in-chief
of
thearmy,navy and air forceand the chief of theCombined
Forces
GeneralStaffwhoactedas secretary.
Thepowersof COSENAextended
toall questions
andmatterswhichmight affector have anybearingon
nationalsecurity,
theconceptofwhich had,onthe institution
ofthe
neworgan,expanded
considerably.
Underthenewconcept,itdealtnot
onlywithwhathad beenunderstood
bynational
securityuptill then -
territorial
integrity,
sovereignty,
defenceofthe constitution
and
the laws - but also foreign relations,
external trade and foreign
investments,
development
policy, currencyand exchangerates, costof
living,wages, employment
andunemployment,
education,
andpolitical
andtradeunionactivity.
COSENAwas thedecisiveapplication
ofthe
ideology
ofnational
security,
onthe basisofwhich theermed forces
assumedapolitical
rolein the life ofthe nation. Accor>Lng
to its
supporters,
it was thedutyofthe armed forces toassumeexclusive
responsibility
forpreserving
national
security (asdefinedby members
of theUruguayan
armed forces), inthe faceof anon-conventional
world
war,provokedby alleged international
Marxistaggression.
InMarch1973, anotherorganwasofficially
instituted,
although
it alreadyexistedinpractice :the BoardofCommanders-in-chief,
made
upofthe commanders
ofthe threebranchesof the armedforces and to
whichwasattributed
theroleofcounselling
organto theexecutive.
17 June1973. The situation
culminated
inamilitary coup
d'6tat. With the coPo, whichhad the supportof the president,
the
government
dissolved
the Parliament,
namely theChambersof Senators
and Representatives,
aswellas the departmental
legislative
bodies,
censoredthepressand themedia andprohibited
themfromattributing
"dictatorial
designs to the executive
power" (Decreeof27 June1973).
Therightsofassembly andassociation
weresuspended
andthe joint
forces startedto arrestpolitical
and trade unionleaders.
The ideo-
logical basis forthis wasexpressed
tobe thestate ofnecessity
theoryon theone hand and thenationalsecurity
theoryon theother.
- 348-
The peopledidnot hesitatein theirresponse,whichreached
apitchunimaginedby those responsiblefor thecoup. It tooktwo
mainforms :intensepolitical activityand ageneralstrikebythe
tradeunionswhichparalysed thecountryfor overtwoweeks.
It shouldbe stressedthat thesemeasureswere takenafterthe
Tupamarosandotherguerillagroupshad beenbroughtundercontrol and
afterall terroristactivities hadceased. The lastarmedactionby
anyguerillagrcupoccurredatthebeginningof1973. In1974,til
military leaders themselvesstatedthatviolentsubversionhadbeen
defeated in the country,and nowitwas the turnof 'non-violentsub-
version'. They repeatedthis statementagainin 1976,after thewide-
spreadarrests and otherrepression ofmembersofthe communistparty,
saying thatMarxist subversionandMarxist forceshadbeen 'completely
defeated'.
30 June1973. Thegovernmentdecreedthedissolutionof the
NationalConventionofWorkers (CNT), atradeunion body including90%
of tradeunionmembers in the country,and the dissolutionof anumber
ofunionswhichwere subsequentlybanned (Resolution1102, adopted by
virtue cf theprompt securitymeasures). At thesame time, itprohibited
theprincipal tradeunionrights, suchas therights ofassembly,expres-
sion, unionmembership and the right tostrike. It alsoorderedstate
agencies to dismissstrikersandmade provisionfor employersin the
privatesector to dismissstrikerswithoutthe severancepay orcompen-
sationto whichUruguayanlaw entitledthem.
28November 1973. Theexecutivedecreed thedissolutionand
banning of14 politicalparties, tradeunionsandstudentgroups.
Repressionwas intensifiedagainst those belongingtothese banned
groups andowing to the retroactiveeffect of this decree,theywere
condemnedby militarytribunals for theirpastmembershipwhichhad
beenperfectly legalat the time. Even beforethis date,fromJune1973,
allpoliticalpartiesand groupshad beenmade to go intode facto
"recess",atermwhichimplied the absoluteprohibitionofanypolitical
activity. Thosewhowereinvolvedinpolitical activitywere arrested
- if theysimplybelongedtoor wereactive inapartywhichwasin
recess, theywere liable tobe detainedforan indefiniteperiodunder
theprompt securitymeasures,whereas if theybelongedtoorwere
active inabannedparty, theymightalsobe triedandsentencedbythe
militarytribunals.
In December1973, theCouncilof Statebegan to function,at
that timewith25 membersdirectlyappointed bythepresident. It had
been created bydecree No.464/73 atthe timeofthe coupd'6tat (27
June1973) and hadadualpurpose :toapprove legislationandcarry
out allother functionsofthe legislatureandtodraftanewconstitution.
Later,on thebasisof InstitutiunalActNo. 11 ofAugust1981, themember-
ship oftheCouncilof Statewas raised t335, andallofthemwere again
directlyappointedby thepresident.
June 1974. AnEconomicand SocialCouncilwas setup as an
advisorybodyto thegovernmentoneconomic andsocialpolicy andcon-
sistedofthepresident,twoofhisministers andthe commanders-in-chief
of the three armedforces.
29December 1975. Law14.493 on "Adjudicationandpunishment
of thecrime ofldse-nation",approvedbythe CouncilcfState,
- 349-
authorisedthe militarycourts tohearall cases concerningpolitical
crimes,andwasmaderetroactive toapply to thosedetainedpriorto
April 1972 andtoall cases commencedas civil proceedingsonthedate
of enactment.
12 June 1976. Anewcoup d'6tatdeposedPresidentBordaberry
whohad thusfar collaboratedwith the armed forces,but whohad lost
theirconfidence. Themilitary chiefs immediatelyappointed anew
president,who approved InstitutionalActsNos. 1and 2on theday he
tookoffice.
InstitutionalActs. Thisnewcategoryofconstitutional
legis-
lation,previouslyunknown in Uruguayanlaw, came into beingby aso-
calledconstitutionaldecree, signed bythe headofstateand the
Ministersof theInteriorand ofDefence, onthe adviceofthe juntaof
commanders-in-chief.
Under it, the executiveassumed the powertoamend
the constitutionwithoutfollowingthe appropriate procedure established
in theconstitution, andwithout submittingthe amendment to theelecto-
ratefor approval by.plebisciteas requiredby the constitution.
This
procedure strippedthe constitutionofits value and importanceas basic
legislation,enablingit to be amendedbymeans ofmereexecutive
decrees requiringstill fewerformalities thandideven the approval of
ordinarylaws.
The InstitutionalActs (Inst.Acts)werebasedspecificallyon
thenational securityideology; all of Lhemread :"TheExecutivePower,
inexerciseof thepowersvestedin it bythe institutionalisation
of
the revolutionaryprocess,Decrees ... " They areclear examplesof
abuse ofpower on thepartofthe executive,whichdoesnot itselfhave
thepower to change the constitutionof thestate, the systemof the
separation ofpowersorindividual and collectiverights. Twelve
InstitutionalActshave been approvedup tothe time ofwriting.
Inst.ActNo. 1(12June 1976) suspendedthe generalelections
whichwere tohave takenplace in November1976. Inst.ActNo. 2(also
12 June 1976)establishedabodyto electauthorities,known as the
Councilof the Nation,composedof 35 membersof the Council ofState
and all activegenerals (andequivalentranks inthenavy and air force),
amountingto 28. Aquorumwasestablished so thatnoimportantdecision
could ever be takenwithout the consentof themilitarymembers. The
dutiesoftheCouncilwere to appointthe president,the members ofthe
SupremeCourt ofJustice,theElectoralCourtand the Administrative
Tribunal. Italsonade appointments to all offices ihich were to have
beenfilled bypopularelection,suchas departmentalintendantsand
membersofdepartmentallegislativebodies. It alsotookoverpowers
formerlyattributed to the Senateto passpolitical judgmentonany
grave offencescommitted by the president,ministersof state, andother
high authorities. The newbody wasmore importantthan thethreeState
Powers.
1September1976. Inst.ActNos. 3and4were approved.
Inst.ActNo. 3put anend to theautonomyof thedepartmentalgovern-
mentsrecognisedunder the constitution. (Thecountry isdividedinto
19 departments,eachofwhichhadan -xecutiveandalegislativebody
withpowers to dealwithdepartmentalaffairs.)
- 350 -
Inst.ActNo. 4concernedtheprohibitionofpolitical activity
andthepunishments to be applied to thosecarryingout suchactivities
orwhohad carriedoutsuchactivities inthe past. For the first time
inan officialdocumentit wasstated thatall activitybypolitical
partiesorgroups wassuspended. Politicalbanningandsanctionswere
established forsevencategories ofpersons,affectingintotal over
10,000people. All politicalactivitywas prohibited foraperiodof
15 years for :
all those included in the 1966 and 1971 lists ofelection
candidates belongingtoMarxistandpro-Marxistparties
whichhadbeen declaredillegal (includingthe Socialist
and theCommunistparties)and thosepartieswhichhad been
electorally associatedwith them (e.g.the ChristianDemocrat
Party);
thosewho hadseats in the ChambersofSenatorsor
RepresentativesfromMarch1967. The only exceptions
were for those holdingpoliticaloffice atthedate of
introductionof theInstitutionalAct;
- all presidentialcandidates in the 1966 and 1971 elections,
of any party;
- all personsagainstwhompenal proceedings for lse-nation
(politicalproceedings) hadcommenced,regardlessofwhether
the proceedingsresulted inacquittal; and
- executiveofficeholdersofallparties.
Anybodydisregarding theseprohibitionswasliable tosanctions.
Thosewho wereretired couldbe deprived ofup toone-thirdoftheir
pension; thosewho were employedby thestate couldbedismissed,and
those whoweremembersofbannedparties couldbeimprisonedin conformity
withthe StateSecurityAct.
Sanctions appliedbyvirtueof Inst.ActNo. 4couldnot be
opposed in court; noappealwaspossible. Lastly,anInterpretive
Commissionwas establishedwithpowers"towaiveproscriptions", which
has so far rehabilitated some 200citizens,mostofwhomwere supporters
of the r6gimeornotopposedto it.
20October 1976. Inst.ActNo. 5was acuriousmixturewhich
asserted the existenceofhumanrightswhilstdeclaringthattheir
protection "must be reglatcdin function -f internalsecurity", thereby
implyingthat securitywasapriorityandthathumanrightswere subsequent
and subordinateto it.
It alsoprovided thatUruguaywouldonly agree to the surveillance
of humanrightsif this wascarxiedout byprofessional andpermanent
international tribunals, orby statessignatory tointernational treaties
and invirtue of thosetreaties. It would notacceptdenunciations from
persons"inanindividual capacityorprivate nationalor international
bodies".
19January1977. Inst.ActNo. 6aimed atplacingunderthe
directcontrolof theexecutiveallmattersrelated toelectoral
proceedings. Itamended the lawrelatingto the constitutionof the
- 351-
Electoral
Courtwhichwaspreviously
ademocratically
elected
body,
dismissing
allnineofitsmembers andreplacing
thembythree
membersappointed
directly
by theexecutive
(article
2). Ithad
previously
been composed
ofmembers
appointed
by the Legislative
General
Assembly
andbyrepresentatives
ofthepolitical
parties.
It
alsoaffected
the Departmental
Electoral
Boards;
theirmembers,
pre-
viouslyappointed
bydirectpopular
election,
were to be appointed
and
removed
fromofficebytheexecutive.
February
1977. AnArmedForcesPolitical
AffairsCommission
(COMASPO)
was established
todirectthe political
orientation
ofthe
armedforces.
27 June1977. Inst.Act
No. 7was approved,
doingawaywith
the constitutional
guarantees
ensuring
securetenure ofofficefor
civil servants.
Fromthatdate, thegovernment
and administration
was
inaposition
to dismiss
civilservants
arbitrarily.
Ther6gimeundertook
athorough
and extensive
political
and
ideological
"purge",
wipingthepublicadministration
cleanof
opponents.
Thousands
ofcivilservants
weredismissed.
The length
of timeacivilservant
remained
employed
depended
on the reportthe
security
services
ofthepoliceand armed forces madeonhim. A
personal
recordwasestablished
for each individual
anda"personal
history"
certificate
awarded
to eachcivilnervant
or candidate.
Whoever
wasawardedan"A"mightbe allowed
toremaininhis postor
be accepted
forit; whoever
was awardeda"B"mightbedismissed.
However,
these decisions
werenot bindingandwere subject
to
reviewby theofficial's
superior.
Anybody
awardeda"C"wouldbe
instantly
dismissed
andcould never holdan official
appointment
in
the future.
Theadministrative
actmakingprovision
fordismissal
as a
resultofanindividual's
background
couldnotbe contested
eitherin
the administrative
or othercourts and therewas nomeansofjudicial
appeal.
1July 1977. Inst.Act
No. 8delivered
the coupdegrace
totheindependence
ofthe judiciary,
alreadyadversely
affected
since
1972. Theterm"Supreme"
wasremoved
fromthe titleofthe "Supreme
CourtofJustice"
since,as explained
in the longpreamble
to the
Act,it was notconsidered
appropriate
to the newsituation
inwhich
the judiciary
was nolongerapowerofthe state,havingbecomesub-
ordinate
to theexecutive
inmanyaspects.
ThisActwill becommented
uponlater, together
withInst.Act
No.12.
23 October
1979. Inst.Act.
No. 9considerably
changed
the
social security
systemso that socialservices
becamecentralised
in
asinglebody, directly
under the Minister
ofLabourandSocial
Security.
The Actwentagainst
along-standing
national
policyof
increasing
participation
in socialsecurity
agencies
by thosesectors
directly
interested.
Theybecamereducedtosimplebeneficiaries
of
the systemand nolongerparticipated
inits administration
or con-
trol.
30November
1980. Anational
plebiscite
washeldso that the
electorate
mightvotefororagainst
anewdraftconstitution
proposed
by thearmedforces.
Those citizens
bannedforpolitical
reasons
- 352-
(i.e.underInst.ActNo.4)werenotallowed to vote.
OnINovember- 30daysbefore theplebiscite- the text of
thedraft constitution,preparedwithoutany participationfromthe
people,waspublished. The draftwas undemocraticinconception,
beingbasedon the ideologyofnational securi:y. Itproposedto
establishthe executive asasuperpower, conferringon itaclear
supremacy overthe otherstatepowers, althoughit stillremained
subordinateto the arfwd ,,rccz.
In the draft constitution,severalhumanrights weresuppressed,
mainlyby the introduction ofnewformsof statesofemergencywith
thepossibility ofsuspendingrightsduringtheemergency. Lastly, it
reaffirmcdthe validityofall the existinglawsand otherrules-
includingthe Inst.Acts- apprcvedsince the coupd'6tatin1973, and
any whichmightbe approved in -hefutureuntil such time as parliament
was restored. It proposedpresidentialelections with asingle can-
didatewhomusthave theapproval of thearmed forces. Theaimofthose
who haddrafted the text wasto give legitimacyto the regime inpower
and give formto asystemwherebythe armedforcesexercised afirm
hold over the government.
Whenthe plebiscitewas held,it was the firstopportunityfor
the peopleto express theiropinionafter sevenyears ofmilitary dic-
tatorship - duringwhich therehadbeen noelections, nopolitical
or tradeunionactivityof any kindand aclimateofrepressionand
abuse. The draftconstitutionwasrejectedby alargemajority. The
military leaders announcedshortlybefore the electionthatanegative
vote wouldbe interpretedas avote infavourof thestatusquo. By the
electorate,however, it was generallyinterpreted as avote forareturn
to representativedemcracyand torespectforhumanrights andfunda-
mentalfreedoms.
March 1981. Themilitaryleadersannouncedthat sincethe
people!-Ad rejectedits politicalplansandproposals,the Council
of the Nation (Inst.ActNo. 2)woulddirectlyappointanewpresident
inSeptember 1981. Thestate ofemergencywould bemaintained. In
this way, the armedforcesdemonstratedthat theywould not acceptthe
decisionof the peopleand intendedto remain inpower.
12 May1981. LawNo. 15.137onprofessional associations
was approvedtoregulatetradeunionactivity and the rightto form
tradeunions. Because of themeasuresadopted againsttheworkers
unions inJune1973and thepermanentrepressionofunions, thecase
ofUruguay cameup fordiscussion in the InternationalLabour
Organisationyear afteryear. TheILOrepeatedlystatedthatthe
governmentwas not fulfillingthe provisionsofInternationalConven-
tionsNos. 87 and 98on trade unionfreedomand the right to form
trade unions. As aresultofthepermanentprotestonthepart of
the ILO andUruguayan tradeunionmembers,anumber ofprovisions
contained inthe oricinalgovernmentdraft weremodified. Nonetheless,
the lawwhichwas approvedstill containedvery severe limitationsto
trade unionrights, includingthe absenceofrecognitionof theright
to strike. Theprovisionswere thereforestillnot inconformity with
the ILOConventions.
- 353 -
1August1981. Inst.ActNo. 11 provided that the newpresident
tobe appointedby theCouncil of theNationwouldremainin officeun-
tilMarch 1985. It alsomndifigd Inqt.Act N:. 2byprovidingthatmem-
bers ofthe CouncilofState (carryingout the functionsofthe
legislature) were to be appointeddirectlyby the president.
LamAugust1981. It was announcedthat LieutenantGeneral
GregorioAlvarezhadbeen appointedpresidentand was to occupy that
post as from ISeptember. Alvarez, a forrer commander-in-chief of the
army,was one ofthe militarychiefsresponsible for the events leading
to the coup d'6tatand assumptionofpower.
10 November1981. Inst.ActNo. 12 derogated, repealedand
replacedInst.ActNo.8. It was put forward by ther6gime as ameasure
to re-establishthe institutional hierarchyofthe judiciaryandsafe-
guard its independence. It did not,however, restoreit to the level
guaranteedby the 1967constitution.
The Actrestored the securityofthe judges' tenure and
expresslyproclaimedtheir independence in the exerciseof their
judicialfunctions. Although thiswas apositive step, the independence
and impartialityof the judges was to be dependenton the onehandon
the organisationalstructureof the administrationof justice, and on
the otheron the systemofappointment, transfer,periodin office,
promotionanddismissalof the judges. Inaccordance withInst.ActNo.
12 (article12), membersof the SupremeCourtofJustice (ithadresumed
its former name)are to be appointed and,as appropriate, dismissedby
theCouncil of the Nation,which has toselectone of the three candidates
to be proposedby thepresidentfor anyvacancy (underthe 1967 con-
stitution, themembersofthe Supreme Courtwere appointedanddismissed
byParliament). Ashas beenseen, thearmed forceswerepredominantin
the Councilofthe Nation.
Other judgeswere to be appointedby anewbody, the Higher
Councilof theJudicature,whichwasvestedwith thenon-judicial func-
tionspreviouslybelongingto the SupremeCourt,including appointments,
transfers,promotionsand disciplineof the judgesand seniorstaffof
courtsand tribunals. The membershipofthe newbodyand,more fundamen-
tally,the absence offreedoms inUruguay wasan indication thatthe
independence ofthe judiciary couldnot be guaranteedunder thenew
system. Theremainingofficersofthe judiciarywere tobe appointed
by theMinister ofJustice andremainedunderhis control. The power
to appointanddismissmembersofthe judiciary (includingjudges) be-
longedunderthe constitutionexclusively to theSupremeCourt. More-
over,under Inst.ActNo. 12, officials concernedwith theadministration
of justicelost the rightto securityofemployment,aprovisionwhich
complementedthe provisionsofInst.ActNo.7coveringothersectorsof
state employment.
Inaccordance withInst.ActNo. 8,all judges had a"provisional"
status andwere subjectto aprobationaryperiodof fouryears,during
which time theymight bedismissedwithoutanyreason beinggiven.
Shortlyafter theActwas approved,anumberof judgesweredismissed
who, in cases involvingpoliticaloffences (before1972),hadquestioned
the combinedforces'procedures in relationtodetainees.
Inst.ActNo. 12 alsocovered administrativejustice, atthe
headofwhichwasthe AdministrativeTribunal,whosemembersthereby
- 354 -
have to be appointedby the Councilof theNation. According toarticle
23 oftheAct,administrative courts are no longer empowered toexamine
the legalityor regularity ofan actof the administration if theact is
described by the administration as being a "political act of the govern-
aLnt based on reasons of national security or public interest". One or
other of these terms is employed in cases of dismissal of civil servants,
so that no legal action can be brought in such cases.
The Act prohibited judges, attorneys and senior officials, under
pain of immediate dismissal, from "forming part or being members of
associations of civil servants" (article 30). Not only did this infringe
the right of association guaranteed by the constitution, but it contravened
international obligations signed by Uruguay, such as the Conventions of
the International Iibour Organisation.
Concerning military justice, Inst.Act No. 12 reaffirmed what
had already been established in Inst.Act No. 8 by the modification of
article 253 of the constitution. The military courts are to have
exclusive competence to judge all crimes of 10-se-nation, which is how
political offences havecome to be referredto. The legislatingbody
(today the Cruncil f State) is to be free to establish which acts it
would consider as "military offences", without the need to respect any
of the limitations for which provision was made in the Uruguayan legal
system. Military courts ire responsible to the Minister of Defence and
are not part of the judiciary.
January 1981. The government announced that it was continuing
to envisage a law to regulate the operations of political parties with
a view to bringing an end to the "recess". A number of military leaders
consulted by the press announced that for the time being there would be
no further lifting of banning orders on citizens whose political rights
had been suspended by virtue of Inst.Act No. 4. They also announcedthat
partieswhichhad beenbanned (i.e.the whole left-wing)would not be
rehabilitated and that it would still be forbiddenfor themto engage
in any political activityin the future.
In June 1982, the Organic LawonPoliticalPartieswas adopted,
officially called 'Fundamental Law No. 2'. This laid down the con-
ditions underwhich these politicalpartieswere enabled tobe re-formed,
and provided amost unusual procedurefor the electionof the controlling
leaders of theseparties.
The threeparties werethe centreNational Party (popularly
known as the Blanco party), the liberal Colorado party, and the Union
Civica, arelatively insignificantpartymadeupof themoreconservative
elementsof the bannedChristianDemocratparty. Noneof theparties
of the oppositionBroad Frontwerepermitted tore-form.
Under article 10 of the law, parties formed by persons who
hadparticipated in associations previouslyconsideredillegalwere
not authorised. As the government haddissolved14 partiesunderthe
prompt securitymeasures, this had the effectthatnone ofthe opposition
partiesof the BroadFrontwere able to re-formand no parties couldbe
created by members of the former socialist or communist parties or of the
NationalConfederationofTrade Unions (CNT)orof the Federationof
UniversityStudents (FEUV). Alsoprohibitedwasanypoliticalparty
which"byits ideology, principlesor denomination ormethodsofaction,
has showndirectorindirect linkswith foreignpoliticalparties,
- 355-
institutions,
organisations
or states" (article
10). This served to
excludeadditionally
Christian
Democrats,
Social Democrats,
and
Radicals.
Elections
wereheldon 28November
1982. Membersofthe
electorate
whohadnotbeendeprived
oftheirvote couldvote for their
preferred
candidates
asdelegates
to anational
convention
ofoneof
the threeauthorised
parties.
These conventions
are to elect theparty
governing
bodywhichin turnwillnominate
the party's candidates
for
the nationalparliamentary
andpresidential
elections
to be held at
theend of 1984.
It shouldbe recalled that these 'internal
elections'
were
held at atime when theprompt security
measures
were still in force,
aswell as Inst.ActNo. 4,whichhad deprived8,000citizensoftheir
political
rights.
In addition,
formerparticipants
in any ofthe 14
banned organisations
wereunable tovote, as well as refugees abroad,
who included
the leaderofthe BlancoNational
Party. Moreover,
no
election
propaganda,
oral orwritten,
wasallc.jed tomentionanyone
whose political
rights had beensuspended.
In theseconditions,
46% of the votes wentto theNational
Party, 40% to the Colorado
Party, and 1%to theCivicUnionParty. The
remaining
13% ofvotes %,ere blankballotpapers castin protestby
supporters
ofbannedparties.
85% ofall the votes castfor the three
permitted
partieswere cast in favour of candidates
whowereopposedto
the militarygovernment
and soughtareturntodemocratic
rule.
Thus, as in the caseof the referendum
on the draftconstitution,
the electorate
showedoverwhelmingly
its desire to returntodemocracy
and its opposition
to militaryrule.
IV. ABUSEOFSTATESOFEMERGENCY
PromptSecurity
Measures
Thisinstitution
hasexistedunderthe Uruguayan
constitution
forsomedecades.
Inrecentyears, however,
newmotiveshavebeenin-
voked for its application,
until thepointhas beenreachedwhereit
iswhollydistorted.
Thelimitations
established
by national
law and
practice,
limitations
aimedatprotecting
humanrights againstpossible
misuseofpower,havebeenexceeded.
As originally
conceived,
the measures
couldbeappliedonly
inexceptional
situations,
whichthe constitution
definesas graveand
unforeseen
cases ofinternal
disorder,
extreme internal agitation
of
arevolutionary
nature, or naturaldisasters
such as floods, hurricanes
andearthquakes.
Essential
requirements
were that thesituation
should
beunforeseen
andcould not have beendealtwithby thenormalmachinery
providedby the law.
Promptsecuritymeasures
hadpreviously
beendecreed onafew
occasions,
generally
on the groundsofinternal
disorder
causedby
majorstrikes,
lock-outs,
naturaldisasters
(floods)andevenserious
economic
eventssuch as the bankruptcy
ofprivatebankinginstitutions.
Ashasbeenseen, in November
1,67President
PachecoArecousedprompt
security
measures
todissolve
and outlawsixleft-wing
partiesand
- 356 -
politicalgroups (includingtheSocialistParty). Thisdecreewas
set aside by theParliamentat thebeginning of 1968. However, in
Juneof thatyearpromptsecuritymeasureswere againdecreedinorder
to freezepricesandwages in the face ofgallopinginflation and to
establishanewbody, COPRIN,whoseauthorisationwas requiredforany
changes npricesandwages. Since then 14yearshave passedand the
state ofemergency has remained in forcewithout interruption. The
emergencywhichshould havebeenexceptional and transitory has become
apermanentsystemand thegovernment usespromptsecuritymeasures to
deal withcountless real oralleged problemsfacing it.
The authorities seemto havestartedfrom the mistakenassump-
tion that theyhadonly to invoke astate ofemergencyand theentire
constitution lapsed. The cases in whichit is lawful to adoptprompt
securitymeasures, thescope oftheir applicationand the limitswhich
the executiveshouldnot exceed have alreadybeenexamined. Since the
promptsecuritymeasureswere adopted in November1967, theyhave been
applied in circumstances thatwereperfectly foreseeable and thatcould
have been dealt with by the normal machinery provided by the law. There
have beenclearexcesses with regard to thematters whichcan be dealt
with bypromptsecuritymeasures,and in relationto the limits within
which the emergencypowerscan be exercised.
Over the years, hundreds ofpromptsecuritymeasureshave been
adopted to dealwithavery wide range ofmatters. Currencyvaluesand
exchange rateswere fixed, foreign trade regulated,prices andwages
frozen; bankswere takenoverwhich had been fraudently strippedof
theirassets by their owners,who fled thecountry; legislationonhous-
ing constructionand laws regulatingthe level of rentsofdwellings and
commercialpremiseswere set cside. Alwayson the groundsof astate of
emergency, stateenterprisesware taken overby the governmentand their
management replaced; educationat all levelscame undergovernment control,
thus destroyingthe autonomy vouchsafed it bythe constitution. Both
stateenterprisesand publicschoolsand universitieswhichunder the
constitutionenjoyed asemi-autonomous statusremainedunder executive
control longafter thedisorderinvoked by the governmenthadbeenover-
come, and finally theirdirectorswere removedwithoutbeing grantedthe
protection establishedby the constitutionand the law.Again,bymeans
of thepromptsecuritymeasures, the legislation onpolicepensionsand
retirementwas revised, so as to improve the services providedfor ex-
policemen. Inaddition,aprofessionalmedical care associationwas taken
over and its legitimateauthorities replaced. Personswhohad been
electedmembersofgoverningbodiesofcivic associationswereprevented
fromassumingoffice, because the policeservices considaredthat they
had "negativebackgrounds". Theseincluded the UruguayanAssociation
ofNotariesand anumberof sports clubs.
In the faceofamajorstrike bypublicemployees,the govern-
ment, stillby meansofpromptsecuritymeasures, "militarised"these
employees,whichinvolvedgiving theinmilitary statusso that they
were liableto severepenaltiesif they did notobey orders; the
penaltieswereappliedby militarycourts andweredesignedto force
the strikersback towork. This violatedthe righttostrike recognised
byarticle 57 ofthe constitutionandConventionNo. 105 ofthe ILOon
the abolitionof forcedlabour, ratifiedbyUruguay. An extremecase
was thatofthe bankworkers,whowere sentencedbymilitarycourts for
havinggoneon strike.
- 357 -
Thepromptsecuritymeasureswerealsousedto close downnews-
papers andpublications
and to censor thecommunication
media ingeneral
(thereweremore than 130decrees orderingthe temporaryor definitive
closure ofnewspapers,
magazines and radiobroadcasting
stations);
to
order thedissolution
of the national tradeunionconfederation
and
individual
tradeunions; tooutlaw them,take over their premisesand
confiscate their property; to prohibit the right to strike; to prohibit
meetings, cultural events such as film shows or plays, sporting and
social events, and the activities of societies of foreign communities
(as in the case of the Lithuanian
Centre).
Again by using prompt security measures, at the end of 1973
the dissolution
and outlawing of 14 political and student organisations
was decreed, oponinqthe way for the persecution
of theirmilitants,
and theirpossibleconvictionby themilitarycourts. However, even
before the decree outlawing the political activities of some groups was
adopted, all political parties had already been placed "in recess" since
June 1973, which signified the absolute prohibition
of political
activiti.es.
Afrequentpracticewas to decreepromptsecuritymeasuresof
a"preventive
nature"in order to avoid anypossible futuredisturbance;
in so doing the government broke freeofall limitations
and it could
be said that any problem might possibly in the future lead to "disturb-
ance".
It is with respect to security of the person that the most
seriousviolations occurred. In the case ofdetentioncarried out under
proi,.et security measures, the executive did not reply to requests for
information
from magistrates
in connection with habeas corpus proceed-
ings, on the grounds that the assessment of a person's "dangerousness",
whichjustifiedhis arrest and administrative
detention, fellexclusively
within the competence
of the executive and therefore could not be
controlled or reviewed by the judiciary.
In addition, it prevented any
control by civil magistrates
over the treatment of detainees.
While the
declaration
of astateof emergency is apoliticalact whichbelongs
exclusively
to the political power, so that there can be no judicial
control over the emergency itself (which is the taskof Parliament),
this does not mean that the judiciary loses its powers to supervise the
life, health, physical integrity and conditions of detention of detainees.
It could not be supposed for a moment that persons deprived of their
freedom by order of the executive could be left to their fate without
any control aimed at protecting
their basic rights.
Under the decree establishing
the "state of internal war"
(April 1972) the magistrates
of the judiciary lost all jurisdiction
to
hear cases affecting state security, such jurisdiction
being transferred
to militaryjudqes. This openedthe way for systematic torture,ill-
treatment and excesses against detainees.
However, these aspects will
be analysed below, as they arenot solely a consequence
of the application
ofpromptsecuritymeasures.
In Uruguay,it is impossible
to knowwhethersomeone isbeing
detained because the government considers thatif hewere free he would
represent adanger for nationalsecurity - althoughhe has not
committedany offence - orwhetherhe is being investigated
for the
commission of a specific offence. There is an unlawful shift to and
fromthe r6gimeof administrative
detentionand judicialdetention.
- 358 -
Personsdetainedadministratively under the promptsecuritymeasures
are brought,monthslater,beforeamilitarycourt whichtriesthem,
finds themguilty of anoffence and sentencesthemto atermof imprison-
mient; persons freed by the militarycourts becausetheycould not be
found guilty of any specificoffence,or because theyhad served their
full sentence,continued tobe detainedsubsequently,but nowbyvirtue
of the promptsecuritymeasures.
While the authorsof the constitutiongranted the executive
exceptional powers to deal with exceptional situations, it must use
them within the bounds of the laws which are in force. The constitution
authorises the temporary detention of a person who has not committed an
offence and therefore cannot be tried or convicted, but this extra-
ordinary power cannot authorise the executive to convict persons or
applypenaltieswithout the interventionof the judiciary and without
any leqal defence. Consequently, the practicein Uruguayofdetaining
persons for monthsand evenyears under the prompt securitymeasures is
an unlawful abuseof the power. As for those who continue to be detained
even after having servedtheir full judicial sentence, they arebeing
punished twice for the same offence. Ajudicialconviction is followed
and compounded by anon-judicial one of indefinite length.
It will be recalled that the constitution only authorises
administrativedetentionor the transfer of apersonfromone place in
the territory to anotherprovided that the persondoesriot choose to
leave the country. Since the promptsecuritymeasures have been in force,
and pIrticularly since April 1972, detainees have notbeen allowed to
exercise their constitutionalright (underarticle168, para 17(2)) to
leave the countryin ordernot to remain in prison. This constitutional
right, as administered by the executive, has been transformed into a
concession which is grant:ed or denied by the miliLaryauthorities with-
out any explanationor reasons. There have been cases in which persons
thus detainedhavehad to waitanumberof years in prisonbefore being
able to exercise this right.
The abuseof the promptsecuritymeasureshas graduallycreated
a kind of parallel constitution and parallel legislation, which have pride
of place over the properlyestablishedconstitutionand legislation, thus
distorting the legal system. Peoplehave become accustomedto the
emergency ruimeto the point thatit has become the "normal"machinery
of government.
Torecapitulate, states ofemergency donotauthorise the
executive to legislateby decree. They only authorise it to adopt
specific administrativemeasuresof apolicenature. Nevertheless,
decrees have been issued which function as decree-laws, a category which
does not exist inUruguayan law, and countlesslegal relationshipshave
beenwovenwhichsubsequently condition future legislation. Suchdecree-
laws, which govern matterswithin the purviewof"normal" legislation
and have little or nothing to dowith "internaldisturbance"have con-
tinued in force after the circumstances which gave rise to the emergency
have been overcome. This is a further violation of the constitution.
Onotheroccasions, the executive has adoptedextraordinary
measuresbased not on the promptsecurity measuresbuton theprovisions
ofarticle 168(1) which states :
"ThePresidentof the Republic,actingwiththe ministeror
- 359 -
;,inisters concernedorwiththeCouncilofMinisters,
shallhave the followingduties :
1. Thepreservationof internalorderand tranquillity,
andexternal security."
Thisprovisioninno way authorises the Presidentto adopt
extraordinary
measures,nordoes itwiden thepowersgrantedto him
undertheconstitution and legislation; itmerelyestablishes his com-
petence inthe sphereoforderandsecurity, aresponsibility
which
mustbe exercisedwithin the limitsestablishedby the legalsystem.
One ofthe factorswhichfacilitatedthe abuse ofpowerwas
theabsenceofeffective parliamentarycontrol overthe relevanceof
theprompt securitymeasures,theirmaintenace, or the way in which
theywere applied. Theparliamentary
majorities toleratedagradual
but steady concentration
ofpower in thehands ofthe executive, perhaps
in the beliefthat theywould therebyavoid acoupd'6tatand military
escalation. Whenthey wished to react it was already too late. During
thegovernmentof PachecoAreco (1967-72)Parliamentonthree occasions
decided to set asidean important numberofprompt securitymeasures
relatingto rightsof individuals,
closuresofpress organs,state
supervision ofeducational bodies, terminationof administrative
de-
tention,etc. In the first case (August1969), afteralongand heated
debatetheGeneral Assembly decidedto lift the measuresin question;
the Presidentreinstated them two hours later,Cisregardingthe decision
ofParliament.
On anotheroccasion, theStandingCommissiontook a
similardecision (Parliamentwas inannual recess). ThePresidentig-
nored the decision,denying the competenceof the StandingCommission.
Article 168, paragraph 17, clearlyshows that suchpowersare vestedin
the StandingCommission.
The repeated threats to dissolveParliamentmadeby the armed
forces also contributedto the Parliament's failure toexercise its
functionof politicalcontrol. With the illegaldissolutionofParlia-
mentfollowing the coupd'6tatof June 1973, eventhe theoretical
possibility ofcontroldisappeared.
Abuseof the suspensionofindividual security
Uruguayanhistory containsfew examplesof the application
of thisemergencyinstrument. Thetwo occasionson whichitwas used
in theperiodunder reviewwereinAugust1970, for aperiodof40days,
whenthe Tupamaros kidnappedand thenmurderedDanMitrione,aUnited
Statespoliceofficial; andon 15 April 1972, as aresultofthe dis-
ordercreatedby guerillaoperations by the Tupamaros. Onthelatter
occasion, thesuspensionwas renewedsuccessivelyuntil 31 May 1973,
thus remainingin force for ayearand 45 days.
Ashas beenstated, theconstitution
requirestheprior con-
sentof thelegislaturein orderto bringthisprocedureinto force
and setsprecise limit- onthe powerswhichitconfers. Thus, itmay
be appliedonly "in the extraordinary
caseof treasonor conspiracy
againstthe country"and its sole objective or purposeis, as the
constitution states,"the apprehensionofthe offenders"whomustbe
brought tojustice. The constitutiondoesnotauthorisethe trial and
convictionoftheseoffendersby special courts, suchasmilitary
tribunals.
- 360 -
In practice,asappliedfromApril 1972, itinvolved thesuspen-
sionofnearlyall the rightsrelatingto legalsecurity and integrity
of theperson, and thisdespite the factthat the finaldecreeprolonging
the suspensionofindividual security (decree231 of 31 March 1973)
establishedthat thesuspensionwas adopted "forthe solepurposesof
the struggleagainstsubversion ..."and thatthe onlyrights suspended
wouldbe thoseestablished byarticles 15, 16, 17 and 29ofthe con-
stitution (detentionin the absenceofflagrante delicto; time limits
forbringingadetaineebefore amagistrate; habeascorpus; freecommunica-
tionof thought). The earlier decreeofApril 1972 also authorised the
suspension ofthe rights inarticles 11, 38 and 39 (inviolabilityof the
domicile; rightof assembly; rightof association). Allotherprovisions
guaranteeing human rights were not coveredby the suspension. With
regard, forexample, to article 17, whichprovides for the remedy ofhabeas
corpus, magistratesand jurists officiallyconsulted bymembers ofParlia-
mentat the timereplied that the suspensionshould be understoodas
follows :the authority apprehendingapersonwas not obligedto bring
thedetaineebeforeamagistratewithin 24 hours, nor to justify tohim
the cause ofthe detention,but ifanapplication for habeascorpuswas
made tha (civil)magistrate shouldbe allowedto see thedetainee,and
while he was notempowered todecide the questicnofhis release,hecould
supervise and, ifappropriate, remedythe materialconditionsin whichthe
detaineewas heldand the treatmenthe received. Again,the Governing
Councilof the FacultyofLawstated in adeclaration of 9July 1972 that
the suspension ofindividualsecurity"didnot initselfexclude the
otherguarantees subsequent to apprehension".
These limitationswere neverrespected. Thegovernmentgranted
the armed forces and the policeafree handand the combined forces
carried outwidespread iearches ofprivatehomes,and detainedthousands
ofpersons; thedetainees wereheldincommunicadoformanyweeks and
evenmonths; thevalidityofhabeas corpus wasdenied,just as ithad
beenunder the promptsecuritymeasuresand informationwas not evengiven
concerning the placeswhere adetaineewas held. Lawyerswere unable to
see theirclients for longperiods oftime, orexercise the rightof
defence,orquestiontheunlawfulnessof thedetention, and received
no information fromthe authorities responsible for thedetention. When
ParliamentappointedaC-mmissionofInquiry in 1972, consistingof
senators anddeputies, to examinethe conditionsin whichdetaineeswere
held, followingmanycomplaintsby familiesoftortureand ill-treatment,
themilitaryauthorities didnot allowthe Commissionto enterthe
barracksongrounds of "militarysecrecy".
In otherwords,the applicationof rhesuspensionofindividual
securitywent far beyondwhatis allowed underdomesticlaw. Therewas
no parliamentary control over the way in which the repression was carried
out,norwas there anycontrolby thejudiciary.
TheState of InternalWar - MartialLaw
On 15 April1972, inthe faceof theguerillaoperations
referred toabove, the executiverequestedtheGeneral Legislative
Assemblynotonlyto give its consentto the suspensionofindividual
security,but at the same time to approvethedeclarationofa"state
ofinternalwar". Havingobtainedthat approval,theexecutivedeclared
suchastateby decreeNo. 277/72 :
- 361 -
forthe solepurposeof authorisingthe
necessarymeasurestorepress tile actionof individuals
orgroups engagedby whatevermeansinconspiracy against
thecountry, in accordancuwi~h theprovisions of
article 253 of the constitution".
Thestateofinternalwarwasprolongedon30 June 1972 (by
decree463/72)and finally came toanendon 14 July 1972, with the
entryinto forceof theAct onState Security and Internal Order
(LawNo. 14.068).
Aswas pointedout ealier,astate of internalwaris unknown
in theUruguayanconstitutionalsystem. The governmentsoughttojust-
ify itby invokingarticle 168 (16) ofthe constitutionand tIeMilitary
CriminalCode. Article 168, paragraph16, includesamong theexecutive's
powers :
"Todecreethe severanceof relations and, in accordance
with apriorresolutionof the GeneralAssembly, to de-
clarewar if arbitrationorotherpeacefulmeans have been
of noavail inavertingit".
Whenthis article is analysedin conjunctionwitharticle 85(7),
whichprovides that itshall be the responsibilityoftheGeneral
Assembly ". . . to declare war", it is quite clear that article 16P
refersonly to internationalwar, to conflictswithforeignstates or
powers. Asfor the MilitaryCriminalCode, itis the sole text which
refersto asituationof "internal"warand, indeed, in thisand other
aspectsviolates the constitution (theCode was adopted in1943during
atemporaryunconstitutionalr6gime in the country). In caseofcon-
flictbetween the constitutionand alaw,the constitution mustprevail,
asis expresslyprovided in the constitution. TheMilitaryCriminal
Code is an ordinary law.
In addition,the fact thatthe stateof internalwarwas
app::oved bythe General Assemblydoesnot makeit lawful. TheAssembly
is subjectto the law and canonlydowhat the lawauthorisesit to do.
In nocasedoesit havethe authority tomodifyeitherthe constitution
or the law,nor tr alter the powersof theotherorgansofthe state,
byamereadministrativeact grantingauthorisationto the executive.
Themaineffects of the stateofinternalwar were :
- toplace theCombinedForces, i.e. the armedforces and
thepolice,on awar footing; theycarriedoutwidespread
repressionaimed initiallyat the groupswagingarmed
combatand subsequentlyagainst any formofopposition
to theirmethodsand objectives;
- topreventanyparliamentaryor judicialcontrolover
detaineesandover theacts of theCombinedFurces. The
ActonStateSecurity and InternalOrderlatersoughtto
validatethissituation, withaprovisioninarticle 37
to the effectthat eventhe judiciary cannotcollect
evidenceor information when"thismight involve
revealingmilitary secrets", either directlyorindirectly.
In thisway. themilitaryensured thatno-one but them-
selvescouldinvestigate the actions ofthe armyorofthe
- 362-
policeforce, whichwasgivenmilitarystatusbyaprompt
securitymeasure. Inorderto caterforany eventuality,
article 37 wasgivenretroactive effectto 9September
1971, thedate onwhichthe CombinedForces wereentrusted
withcarryingout the 'waron subversion';
- during the threemonths whenthestateof internalwarwasin
fcrcq morethan 100personsdiedin combat, thevictims
comingmainlyfromthe ranksofthe oppositionbutwith
some fromthe CombinedForces. Therewerealsoreportsof
murdersofdetainees,officially explainedasbeingdua to
attemptedescapeoractsofresistance. Atleast 90per
centofpolitical detaineesweretortured andabout 50died
undertortv're. Detaineeswerealsosubjectedto variousforms
ofcruel, inhuman anddegradingtreatment. Theywerenot
chargedor broughtto trialandweredenied access to lawyers.
Anycomplaintsofviolationofhumanrightson thepartof
familiesofdetaineesand otherswere "investigated"
exclusivelybymilitaryjudges and nocasehasbeenreported
inwhich anyof thoseresponsiblewerebrought tojustice;
- anothereffectofthestate ofinternalwarwas topreventthe
disseminationthrough thepressandothercommunicationmedia
ofany newsorcommentonthe actionsofthe securityforces
and onpersonswhohadbeenarrested,allofwhichwas classified
asa"militarysecret";
- finally,theuncunstitutional impositionofaformofmartial
lawthroughout the country.
Unconstitutionalityofmartiallaw- AccordingtoDecreeNo. 277/72,
thestate ofinternalwarwasdeclaredfor the solepurpose of"repressing"
the actionsofindividuals orgroups engagedinconspiracyagainst the
country, arepressionwhichwas tobecarriedout "undertheprovisiors
ofarticle253 of theConstitution". This article,whichwas claimedas
the basisformartiallaw,states :
"Militaryjurisdictionis confinedtomilitaryoffencesand
to the caseofastate ofwar.
Ordinaryoffencescommittedbymilitarypersonnelint..'e
ofpeace, wherevertheymayhavebeencommitted,shall be
subjectto -rdinaryjustice" (article
2
5
3
oftheConstitution).
As this article was interpretedprior to1972 Uruguayandoctrine
and jurisprudence,military jurisdictionwas limitedtotwo situations
(a)militaryoffenceswere understoodtobethose actswhich,
withoutviolatingordinarycriminal legislation,violated
aspecificallymilitaryduty, suchas desertionorin-
subordination. Iftheac: wasalreadyestablishedas an
offencebyordinarycriminallecz;lation,it fellwithinthe
purviewof ordinaryjustice,whethercommittedbyasoldier
oracivilian. Parliament couldnottransforman
essentiallyordinaryoffence intoamilitaryone simply
bydeclaringthat itwas so. OrdinarycivilianscouldncL
beperpetratorsol amilitaryoffence,norcould theybe
triedbymilitary justice. Militaryjusticewas applicable
- 363-
onlyto the armedforces andto those civilians
voluntarilyacceptingamilitarystatus, suchasthe
sanitarypersonnelofamilitaryunit;
(b) incase ofastateofwar. Duringasitutationof
international
(andnotinternal)war, thescope of
militaryjurisdictionwas extendedto :over :
- militarypersonnelcommittinganordinaryoffencel
- offencescommittedby civilians intheareaof
militaryoperations,whenitwas impossibleforthe
ordinaryauthoritiesto carryouttheirfunctions
there. This wasthe solecase inwhichmilitary
jurisdiction could extendtoacivilian.
The SupremeCourtofJusticeonvariousoccasionsreached
the conclusions givenat (a)and (b) above, whenhavingtodealwith
cases ofpersonsdetained in1970and 1971 whowere responsiblefor
attackingamilitaryunitand stealingweapons. Themilitarycourts
claimedjurisdiction
- theaccusedwere civilians- and thedispute
was settledby theSupreme CourtofJusticeinfavourofthe ordinary
courts, afterfindingthe articlesof theMilitaryCriminalCode
ascribingcompetence toitselftobe unconstitutional.
Thisinterpreta-
tionwaseffectivelycircumvented
in 1974, whenthe SupremeCourt,whose
ordinarymemberswerejoinedby twomilitary judges, upheldbyamajority
decisiontheconstitutionality
ofthe act onStateSecurityand Internal
Order, whichgavejurisdictionto the militarycourts to try civilians
for certainoffences. Prior tothat,however, the stateofinternalwar
was wrongly applied tojustify the trialbymilitary courtsofall per-
sons, civilianandmilitary,suspectedofhavingcommittedpolitical
offences, interpreted as "offences against state security" or "offences
against the state". The governmentmaintainedthat as asituationof
war existed,civilians too weresubjectto military law. Regrettably,
the judiciarypassivelyaccepted this situation,withthe exceptionof
afewjudgeswhowere laterdismissed. WhenParliament,on10July1972,
underheavymilitarypressure and threatsofacoupd'dtat,gave its
sanctiontoLawNo. 14,068on StateSecurityand InternalOrder,this
seemed toconsolidate the existingsituation. Themethod usedbythe
Actwas to transformpoliticaloffencescoveredbytheordinarycriminal
codeintomilitaryoffencesand includethemintheMilitaryCriminal
Code,regardlessofwhethertheywere committedbymilitarypersonnelor
civilians. Afurtherseriesof criminalprovisionscontained inthe Code
werealsoapplied to civilians,suchasarticle 68,whichcontains23
potentialoffencesunder the title "Attackupo. themoralstrengthof
thearmy,navyandair force".
Yetanotherirregularity
was thatalthougiLawNo.14,068was
passedwithout retroactiveeffect,nevertheless
all thosedetainedfor
allegedpoliticaloffencesbetween 15April (deciaration
ofthe state
ofwar)and 10July 1972 (dateof the Act), nunmberingseveralhundreds,
weretriedandconvictedbymilitarycourts.
Continuingdlcngthis path,and despitethe criticismsofthe
operationofmilitary justice and constituticnal
objectionsput forward
bydefence counselandprofessorsof law,tim,Councilof State,on 29
December 1975, approvedLawNo. 14.493on t, trial andpunishmentof
offences againstthe state. This Actwidenedthe field ofmilitary
justice, whichwasgiven retroactivecompetenceto trypolitical
- 364 -
offences committedbefore 15April 1972, as wellascoveringall on-
going trialsbefore theordinarycriminalcourts inwhich afinaldecision
hadnotyetbeengiven.
On1July1977 InstitutionalActNo. 8was adoptedwhichdealt
afinalblow tothe independenceofthe judiciary. Under thatdecree,
article 253ofthe constitutionwas illegallymodified,enablingthe
ordinary legislativepower - today theCouncil ofState - toestablish
whatacts could be considered"militaryoffences" withouthavingto
abideby any ofthe limitations establishedby the constitutionandby
legal doctrine. On 10 November]E81,InstitutionalActNo. 12 was
adoptedwhich,althoughderogatingfrom Inst.ActNo.8,includesmany
of theprovisions the lattercontained,includingthoserelating to
militaryjurisdiction (article14 of inst.ActNo. 12).
On25 March 1980,thegovernment adoptedLawNo.14,997, which
completedtheprocessof transferofjurisdictionto the militarycourts
inthecase ofpoliticaloffences. TheAct changesthe systemwhereby
someprisonersmaybe releasedbefore theyhaveserved theirfull sentence;
itgives the Supreme MilitaryCourtthe power,hithertobelongingtothe
Supreme CourtofJustice, togrant "earlyrelease" and "provisional
release". Thepurposeof thisprovisionwas toreserve for the military
authoritiesalone the possibilityoforderingthe releaseofpolitical
prisonerswhen,and inthe numbers, theydeemedpoliticallydesirable.
The extendedapplicationofmartiallawthroughout thecountry
- todate there havebeensome 5,000militarytrialsofpolitical
opponents- was accompaniedby aserious distortionofthe systemof
justice. The functioningofthemilitarycourts revealednumerous
irreqularitiesaffectingthe right toajustand fairtrial and the free
exerciseofdefenceinacriminalcase. Military sentencesare extremely
severe, often amountingto45yearsofdeprivationof liberty.
The (civilian)defencecounselwhodefend the accusedinmilitary
courtscarryout their taskwithgreatdifficulty andrisk; for long
periods they are deprivedof theright to communicatewith their clients;
the secrecyof their conversationsisnotrespected; evidence they
requestissometimesnotprovided; judges andprosecutorsdrawupon
classifiedreportspreparedbythe securityservicestowhichthedefence
doesnothave access.
Furthermore, counselhave themselvesbeenthreatened,detained,
tortured (professionalsecrecyisnot respectedintheirinterrogation),
and forced to leavethe countrysolelyforseekingtocartyout the
obligations imposedon thembytheirprofession. Asthey are "awkward
witnesses"oftheactionsofthe CombinedForcesandofthe military
judges themselves,everthing isdoneto excludethemfromsuchtrials.
Ithasbeenestimatedthat 80percentofprisonerswereandare defended
bymilitaryofficersappointedas defencecounsel bythe Supreme
MilitaryCourt. Theyare notrequired tobe, and seldomare, lawyers.
Some essentialrequirements areZr'ssingfrommilitaryjustice
independence, impartialityandprofessional training. It lacks inde-
pendencebecause it is notpartofthejudicialpower butratherpart
of theexecutive, throughtheMinistryofDefence,andhas astructure
similartothatofthe military,witharigidhierarchyandsubordination
to authority. It lacks impartiality,as the officersservingas judges
- 365-
aredirectlyinvolvedinarresting,
andveryoften ininterrogating,
thosetheysubsequently
judge. Suchofficersare given judicialpowers
asatemporaryassignment;
one daytheymaybe inchargeofacourtand
the nextinchargeofamilitaryunit,orviceversa. Itlackspro-
fessionaltraining inthat judges, prosecutors
and defencecounseldo
nothavetobe lawyersorhave anyknowledgeofthe law. Theonly
qualification
requiredisthat theybemilitary officers,andmilitary
officersaretrainedfor warand not todispensejustice. Finally,
milicarycodesare first and foremostinstruments
of internaldiscipline,
andcannotfunctionproperlywhenappliedoutside the contextforwhich
theywere created.
Theeffectofmartial lawisthat the judiciaryhasbeen
deprivedofthepowers grantedtoitby the constitution,
andthe
principle ofseparation
ofpowersonwhich the constitution
isbased
hasbeenoverthrown.
Inadditionto its administrative
responsibilities,
theexecutivehas acquiredthepowersof legislating,
ofjudgingand
cxecutingits judgments.
V. CONCLUSIONS
Aswill beclear fromwhathas beenstatedso far, therehas
been aclose correlation
between theapplication
ofstates ofemergency
and theviolationofhumanrightsinUruguay. Eventhough therewere
seriousdisturbances
inthe country - during1968-1973- theonly
legitimate wayofcomingtotermswiththis situationwithoutplacing
the democraticsystematrisk, would havebeen to actwithin thelegal
frameworkestablished
underdomesticlaw (promptsecuritymeasuresand
suspension
of individualsecurity)and within thelimits imposedby the
constitution
and national legislation.
Once the government
departed
fromtheterms ofthe constitution
andfailed torespectthe established
limitations,
asituationarosewhichhadanegativeimpactonhuman
rights.
Thewholegamut ofhumanrights, civil, political,
economic,
social and cultural,wereignored tothepointofbeingtotallydenied.
Nc doubt,however,themostseriousand lastingfactors,whichhave
grave implications
for thefutureor Uruguay,were thedestruction
of
the rule oflawandofthesystemofrepresentative
democracyas guaran-
teedby its legalframeworkand byavery long-standing
tradition.
Ofcourse, notallofthismaybeattributed
tothe stateof
emergency,
butitis clear thatitpermittedagradualside-stepping
offundamental
rightsand freedoms, to thepointwhere thepresent
situationcame about. Gradually,themachinery established
under
national lawfortheprotectionofhumanrights ceasedtobeapplied
becauseofanemergency situation.
At the same time,the processwas
established
whereby themilitarylittlebylittlemovedclosertothe
seatofpower,and finallyseizedpowerillegallyandachievedits
objectiveofcreatinganewtypeofsocietyand government.
Thestates
ofemergencyplacedmoreandmorepowers andfunctionsintheirhands,
to the extentwheretherewas littleresistance
when the coupfinally
tookplace in1973. Fromthatpointonwards,attemptsweremadeto
institutionalise
thenewrdgime, andthisprocessgainedmomentumwhen,
inthesecondcoupin 1976,thearmed forcesoverthrewPresident
Bordaberry
and appointedanewpresidentwithout consulting
thepeople.
By theillegaladoptionof12Institutional
Acts, theychangedcompletely
- 366-
the constitutionandformofgovernment. Thereferendumof30November
1980,inwhichthepeople rejectedthenewdraftconstitutionprepared
bythe armedforces andthusrefused to legitimise ther~gime,con-
stituted,however,amajorset-back tothe military'splans for
institutionalisation.
ThemilitaryQhiefscontinueto holdpower,as theymonopolise
themainfunctionsof the stateand control thepolitical scenein
alliancewithasmallgroupofcivilianswhoholdeconomicpower. This
stateofaffairshas beencharacterisedbyabuses and arbitraryaction.
Humanrightshave ceasedto beprotected. Inparticular :
- thereare seriouslimitationson the rightsof freedomof
assembly,associationandexpression. There isstrict
censorshipof themediaandcriticismoroppositiontothe
militaryleadership issubjectto civiland penalsanctions;
- major tradeunionrightsare stillprohibiced,includingthe
righttostrike, and aconsiderableproportionofthepopulation
isunabletoexercisepoliticalrightsas it isnot allowedto
participateindecision-makingonmatters ofpublicinterest
eitherdirectly,orthrouchfreelyelectedrepresentatives.
Itisalso forbiddenaccetss topublicoffice;
- theeducationalsystemisusedtoserve the r~gime's
ideology; teachers and lecturersare stillpersecuted.
Inbroaderterms, the fieldsofarts, letters and scientific
researchhavealsobeen subjectedtostrict censorshipand
controls, whichhaveledmanyofthose engagedto flee the
country;
- therehasbeen aregressionofeconomicand socialrights;
thepurchasingpower ofwageshas droppedby50% overthe
past10years,aswageshave beenunableto keeppacewith
the constantlyrisingcostof liing;
- thereisnojuridicalsecurityandpeopleare subjectto
imprisonmentwithoutanychargebeinglaid againstthem.
Arrestsare madewithoutwarrantand detaineesare held
'inconmunicado'for extendedperiods- oftenmonths- inplaces
whichare keptsecret. Inthe caseofdetentions underthe
promptsecuritymeasures,there isnorecoursetohabeas
corpusproceedings,noris thedetaineeentitledtothe
servicesofalawyer;
- whenapersonhas servedhistermofimprisonment,however
long, neithercivilianormilitaryjusticemaybeinvoked
toobtainhisrelease; inpoliticalcases,imprisonmentis
usuallycontinuedin the formofadministrativedetention
under theemergencysecuritymeasures;
- trialsheldbeforemilitarycourtsdonot respecttheright
todue processof law,and, after trialbyprocedureswhich
failtoguaranteedefencerights,suspectsare usuallysen-
tencedtolongprisonterms;
- 367 -
- thereisnoeffectiveprotection
againsttorture. It
is asystematically
appliedtool ofthe Agime. It is
put tovarioususeswithtotalimpunity :toobtain
information,
confessions
or accusations
of thirdparties;
topunishordestroyany spiritofprotestorrebellious-
ness; toterrorise
victims,theirrelatives,
friends and
thepopulation
at large. Despitethe fact thatthis is
aserious andwidespread
situation,
noneof the
denunciations
beforemilitary courts,which alone are
authorised
to handlesuch complaints,
has led to the
punishment
ofthoseresponsible,
norto any revisionof
verdicts orsentencesbasedonconfessions
extracted
by torture;
- cruel, inhumananddegradingtreatmentis oftenpartand
parcel oflivingconditions
inmilitaryprisons forboth
men and women. Sinceprotection
maybe soughtonlyfrom
militaryjudges inpolitical cases,prisonershaveno
effective
recoursefor puttinganendto suchabuses;
- administrative
courts (CourtofAdministrative
Disputes)
are no longer authorised
toexamine the legalityor
regularity
of anymeasure adoptedby the administration
ifthisis describedas "apoliticalorgovernmental
act,
basedon reasonsofnationalsecurityorpublicinterest".
Thus, for example, thereis no legalrecoursefor acivil
servantwho is dismissed ifthe administration
invokes
article 23 of Inst.ActNo. 12, eventhough the dismissal
mayhavebeen the resultof political
persecution
or
effectedinbreachof the law;
- the separation
ofpowers, socarefully
regulated inthe
constitution
as from1830,has been abolished.
The armed
forces haveassumedcontrolof the executive.
Theexecutive
has added toits specificpowersofadministration
the
power tolegislate,
andmilitarycourtshaveusurpedthe
jurisdiction
of theordinaryciviliancourtsof justice.
Inthe finalanalysis,an individualwhois adversely
affected
byany actof the authorities
is withoutprotection
inthe faceofan
all-powerful
government.
Ifaninjusticeor an illegalact is committed
by the securityforces andis classifiedas bearingin any wayonstate
security, there isnoremedy available inUruguay.
International
and national lawrecognises
thatgovernments
have
theright andeven theduty to defendstate securityfor thebenefitof
theirpeople. They thereforeauthorise
governments
to introducestates
ofemergency,
suspending
certainindividual
and collective
rights for a
limitedperiodfor the solepurposeof copingwith the emergency.
In
orderfor astate ofemergencytobeaccepted underinternational
law,
aseries ofrequirements
has tobefulfilledand given limitations
respected.
Theseare almostidenticalin various international
legal
instruments,
such as the International
CovenantonCivilandPolitical
Rights (1966), theAmericanConvention
onHumanRights (1969)and the
European Convention
on the Safeguard of Human Rights and Fundamental
Freedomsof 1950,knownas the EuropeanConvention
onHumanRights.
Theserequirements
and limitations
are, inter alia, the existenceof
- 368 -
exceptionalcircumstanceswhichendanger the survivalof the nation
and officialproclamationof theemergency. The governmentmay then
assume increasedpowersand suspendcertainrights andguarantees for
ashortperiod,strictly to the extentof theexigenciesofthe
situation. Otherprovisions are laiddown to avoidthe emergency
becomingapermanentsituation,toavoidcitizenshaving tolive with
arestrictionof theirrights, and toprevent theuse of the
exceptionalpowers given to thegovernment toalter the legalsystem
inforce and indeedthe very natureof society. Thereare various
national and internationalstipulations forcontrollingthe use of
these exceptionalpowers. Finally, certainessentialrights are
regulated andmay not besuspendedorbreachedunder any circumstances
whatever,evenduringstates ofemergency (e.g.the rightto life, to
befree from torture, etc.).
Fromthe standpoint ofinternationallaw, the International
CovenantonCivil and PoliticalRightscame into forceforUruguay on
23 March 1976,whenthe stateof emergencyhadalready beenin effect
for severalyears. However, the firstnotification by thegovernment,
underarticle4of the Covenant, thatastate of emergencyhad been
imposed and that certainrightsand guarantees recognisedby the Cov-
enanthadbeensuspended,was containedinits noteverbale of28June
1979to the Secretary-General of the UnitedNations for communication
to the otherstatesparty tothe said treaty. In additionto being
overdue, thisnotificationdidnot fulfil the provisionsof article 4(3)
as it didnot specify the rightsand guaranteeswhichhadbeen suspended,
nordid it put forward any reasons to justify suchmeasures. Thenote
verbale simplystated thatsuch reasons were"undisputablywellkncwn
to all". On 29January 1982, theUruguayanauthoritiesin their first
reportto the HumanRights Committeeunder article 40of theCovenant
(whichshould havebeen submittedin 1977) stated that in the faceof
terroristaggression, thegovernment adopted exceptionalmeasuresand
restrictedcertain rights and guarantees. Theydid notspecify concretely
the rightswhich hadbeensuspendednorthe scopeof this suspension, and
referredmerelyto restrictionsonpoliticalrights and the rightsof
assemblyand association. Withrespect to the habeascorpusprocedure
forendingunlawful imprisonment,the government inthe above-mentioned
reportstatedthat it wasnot applicable todetentions under theemergency
securitymeasures, as in such cases theimprisonment fellunder the
applicationofaconstitutional r6gimeand "is therefore legalunder
law" (page15, Spanish text, U.N.documentCCPR/C/Add.57). This inter-
pretationin effectdeprivesdetaineesof any legal recourse against
arbitraryor illegalarrest, ifmade by the executiveinvoking thestate
of emergencyand if the arrestand consequentdetention are carriedout
without interventiononthe partof thecourtsof justice.
The Human RightsCommittee, which operatesby virtueof the
Covenant, in giving its definitive opinionson aseries of separate
communications relating to Uruguay that hadbeen submitted in the frame-
workof the OptionalProtocol to the C'venant, dismissedthe state's
claimto invoke the rightof su-pension referred to in article 4. The
Committee considered that "the government/of Uruguay/' has not invoked
any fact or cited any lawwhich justifies such suspension" (Cases
R.2/8,R.1/4, R.1/6,R.2/11, R.8/33, R.7/32, R.7/28). In theopinion
of theCommittee, the suspension of rights invoked by Uruguaywas
unacceptable, as compliancewith the Covenant requiredmore thanmere
fulfilmentof the formal requirement ofnotifyingother statesparties
officially, and certainsubstantive provisionshad also to be fulfilled.
- 369-
In the caseinquestion,Uruguay hadnotindicatedthe natureor scope
ofthemeasuresofsuspension,
nor "haditdemonstrated
thatthese
measureswerestrictlynecessary"
(CaseR.8/34).
Inmanyindividual
cases, the HumanRightsConitteeruledthat
theUruguayanauthorities
hadviolatedrightsrecognised
underthe
Covenantwhichmaynot be suspendedorbreachedunderanycircumstances,
eveninastateofemergency (e.g.torture,ill-treatment
ofdetainees).
Uruguayoverlooked
therequirements
fordeclaringandmaintain-
ingastateof emergencyandblatantlyignoredthe limitations
laid down
byinternational
lawandtheUruguayanconstitution
for the protection
ofhumanrights.In proceeding
asitdid andallowingfor soleexecutive
exerciseofexceptional
powers,withoutany legislative
or judicial
control,itcouldand did lead tothedestruction
ofthe rule oflaw,
withthe inevitable consequence
ofdenialofhumanrights and the
establishment
ofadictatorship.
ThecaseofUruguayisoneofmanyexamples showingtherisks
entailedinthe disproportionate
use andabuseof statesofemergency.
-0-0-0-
- 371 -
STATEOF EMERGENCYINZAIRE
(1960- 1980)
CONTENTS
Page
INTRODUCTION ........................................ 373
I THEFIRSTREPUBLIC, 1960- 1965........................ 373
I. THESECONDREPURLIC,1965 - 1980........................ 380
-0-0-0-0-
- 373 -
STATEOFEMERGENCY IN ZAIRE
1960- 1980
I. INTRODUCTION
WhenBelgiumdecidedin 1960under the pressure ofevents
to cede independence to the Congo (asZairewas thencalled), the
BelgianParliamentpassedaBasicLaw (loi fondamentale)whichwas
promulgatedby the Kingon 19May 1960. This provided the framework
for the independence of the newRepublicof theCongo,proclaimedon
30 June 1960.
The recent historyof Zaire maybe dividedinto twomain
periods: that of the First Republic and that of the Second Republic;
the former stretches from 30 June 1960to 25 November 1965, and the
latter from25 November1965 to date. Although this divisionis fun-
damentally a political one, we shall see that it is also quite relevant
to the evolution of the notion of a state of emergency.
The first period was marked by a series of crises of the
central government in the capital Leopoldville (now Kinshasa). Only
days after the proclamation of independence the armed forces mutinied
against their Belgian officers and a week later the province of Katanga
in the Cooper Belt proclaimed its Secessionunder the leadership of
Tshombe. The most far-reaching of the conflictswas that betweenthe
electedPresident of the Republic,Mr. Kasavubu, and the PrimeMinister,
Mr. Lumumba, who had won a resounding victory in the elections held
shortly before independence. This conflict led to a military coup by
the then Colonel Mobutu, which in turn led to tile removal of the Prime
Minister and his subsequent arrest and murder. The nomination of Mr.
Joseph Ileo as Prime Minister and the creation of a nominated College
of General Commissioners to replace the Parliament then took place under
an emergency regime for which there was no foundation in the Basic Law.
Other attempts to establish a stable government met with
failure. The last of the crises was a conflict between President
Kasavubu andTshombe. Kasavubu had nominatedas PrimeMinister
Evariste Kimbawhodid notreceive the approval of Parliament. This
periodsaw the introductionof the new (andfirst)Constitutionof
the Republic. Intendedas an act of conciliationand compromise,
it entered into force in August 1964. Only threemonths later the
regime collapsedunder tile .-eizure ofpower by the army,and it was
replaced in June 1967 by the constitutionof the secondrepublic.
Against this turbulentpolitical background,an examination
canbemade of the variousways inwhichusewasmadeof statesof
emergency.
II. TiE FIST !rPUbiIC,1960 - 1965
The Basic Law bequeathed by Belgium had two essential
features - aclassical parliamentarysystem,and amodified federalism.
Thebicameral parliamentfollowedclosely the Belgianmodel,
withan independentjudicialpower as the guardianofthe constitution
- 374 -
and legality. The large and culturallydiverse territorywas divided
intoprovinces (not federated states)onwhichwere conferredpowersof
local self-government. Althoughthe structuresand powers attributed
to the provincesweresimilar to those inan ordinaryfederal state,
they were modified by a series of restrictions.
The Basic Lawand various laws inheritedfrom the colonial
period conferred on the government the power to establish whit was
then called astate of excoption (Ptatd'exception)and amilitary
regime (rdgimemilitaire).
On the one hand, the Loi fondaimentale provided in its Article
187 that "... the Headof State may, for serious reasons ofpublic
security and upon the adviceof the ittorney-general, suspend, in a
region and for aperiod which he determines, the repressiveactionof
the courts and substitute for it that of military courts. The rightof
appeal cannot be suppressed"
.
The same article also provided for a
limited and conditional delegationof the same powers to the State
Commissioner representing the central government ineachprovince (1).
On the other hand, a text of the colonial period dated 22 December 1888,
could be consideredas beingstill in forceunder Article 2of the Loi
fondamental s which provided that 'the staute, decrees and legislative
ordinances, their measures of enforcement as well as all subsidiary
legislationexisting on 30 June 1960remain in force as long as they have
not beenexpressly aibrogated" (2). The 1888 text, as amended in 1917 by
adecreedated 8November, was especially relevant as itorganized the
special military regime in regions where the authorityhad decidedto
substitutemilitary courts to ordinarycourts (3). It provides that in
such regions military andcivilians a like are subjectedtomilitary
courts (Article26). Yet the latter, unlessdecided otherwise, are
competentonly for serious offences, pettyoffencesremaining within
the jurisdictionof the ordinary courts (Article28). There was no right
of appeal from the judgmentsof themilitary courtswhen the partieswere
either membersof the armed forces or nativesof Congooraneighbouring
country. Sentencescan be executed immediately (Article29). This
provisionwas in conflictwith. tic], 17of the Basic Lawwhich
expresslymaintained the right of appeal () . Pinally, Articles 31,
32 and 33 of the decreeprovide for n Aggravation ofpenalties for a
varietyof serious offencesamong whichwere:
- murder committed in the context ofan insurrectional
conduct;
- armed robbery;
- offences againstpublic security;
- various offences dealing with military discipline.
In most cases, the punishment can h- death (5).
On 9August 1960, in viewof the serious powercrisiswhichhad
spread all over Congo, President 'cve)bu decided to make use of his
powers underArticle 187 of the Loi fondamentale and establisheda
military regime applicable throughout the whole country for aperiodof
sixmonths as from 16 August (6). This decisionwas accompaniedby
variousmeasuresrestricting the freedomof the press and the freedoms
of associationand assembly (7). Practically speaking, the basic
- 375-
decisionmeant that the d~cretof 1888as amended in 1917 was applic-
ableand that,all over the country,Congolese citizensand foreigners
alike fell under the jurisdiction
ofmilitarycourts for all serious
criminalmatters. Simultaneously,
manyseriousoffenceswerepunish-
ablewitheither life imprisonment
ordeath. No justification
was
givenfor this decisionother than"the superiorinterestof the
nation".
'rhe arr~t6concerning
the freedomof thepress entrusted
theMinisterof the Interiorwith the power to forLid the entryinto
the Republicof any newspaperor periooical andsubjected the issue
of all local publications
to the preliminary
approval of the Minister.
It also forbade the introduction
into the country,orthe sale,
distribution
orexhibition
of any py..ntedmaterialwhichwas likely
to effect adversely the normal respect due to tile authority.
The
arr6t6 dealing with the freedom of association
made the constitution
ofany association
subject to anauthorization
of the Ministerof
the Interior. Furthermore,
all associations
wereput under the con-
stant watch (surveillance
constante)
of theMinister orhis delegates
whocouldattend meetings and consult alldocuments of the association
or its directing bodies. Open airmeetingsof all kinds alsohad to
be authorizedby the Ministerot the Interior.
Both arr~t6swerebasedon acolonialtext, the decreeof
6August1922, which enabled the colonialexecutiveauthority, i.e.
the Governorgeneral, to take all policemeasureswhich he thought to
be 'iseful (8). It was assumed that the authority thus cooferred upon
the Governor had devolved uponthe PrimeMinisterand PatriceLumumba
signed the two arr6t6s. Thesemeasureswereapprovedby someand
criticized
byothers. It is difficult to assess their effectiveness.
On 20 August 1960, the chief localnewspaperin Kinshasa,Le Courrier
d'Afrique,
was suspended frompublication
and itsChief-Editor,
G.
Makoso,put injail. Another journalist,
Mr.Maningwendo,
was also
arrested. News agencieshad eithertheir officesclosed
or aserious
warningaddrssedto their managers.
Yet it seems that thepolitical crisiswhich less than three
weeks laterblewupbetween the Headof State and the PrimeMinister,
P.Lumumba,somewhacpushed into the backgroundthe possible problems
resulting from the rfgimemilitaire.
Thereis nomentioilof it in the
variousdeclarations
which followedthemilitarycoup of 14 September
1960 and the establishment
of the Collkgedes Commissaires
g6nfraux
on 19 September.
Thus it seems that the rdgimemilitairecame to its
natural end sixmonths after it had beenset upby PresidentKasavubu,
i.e. on 15 February 1961. But thisdoesnot mean that the situation
wasnormal in the Republic.
The militarycoupof 14 September1960had resulted in acom-
pletelyextra-constitutional
order. Boththe legislature
and the
government
as organizedby the Basic Lawhaddisappeared,
beingsus-
pended inprincipleuntil 31 December19b) (9). The militaryinter-
ventionwas justified by the constitutional
impasse resultingfrom
the dismissal byPresidentKasavubuof PrimeMinisterLumumbaand the
appointment
ofanother PrimeMinister,J. Ileo. As the Armycommuniqud
states: "In order toget the country outofadeadlock,theCongolese
Army hasdecided to neutralize
the Head ofState, the two rivalgovern-
ments and the two legislative
housesuntil 31 December1960". On
- 376 -
29September, PresidentKasavubu formalized the situationunder acon-
stitutionald6cret-loi whichadjournedParliament "untilthe accomplish-
mentof themissionof the Councilof theCommissaires g~n6raux" (10) and
conferreduponthe latterthe legislativepowernormallyentrusted to the
former. Thisdecision was obviouslyunconstitutional; the d6cret-loidid
not existas alegitimatesourceof lawand theBasicLawcouldnot be
amended in that way. The ddcret-loimerelyprovidedan apparentlylegal
faqade for afactual situationwhich fortunately enoughdid not lead to
abuses andwas on the wholewelcomedby all interestedpartiesother
than P. Lumumba,his party andhis supporters. Yet the Commissaire
gdndral inchargeof Justice,M.Lihau issued astatementin whichhe
tried to justify the legalityof theColl6geunder the theoryofeffectivity
(11).
On9February1961, partof the constitutional legalitywas
re-established whenaministerialCabinet,headedbyJ.Ileo,wasappointed
by PresidentKasavubuwho simultaneouslybrought toan end the missionof
the Collagedes Commissairesg6n6raux (12). Thegovernmentwas meantto be
aprovisional oneuntil Parliamentcould reconvene and until thenitwould
exercise both legislativeandexecutive powersas the Coll6gedid. The
appointmentof theCabinet tookplace afewdays before P.Lumumbawas
killedwith twoof his followersin Katanga; the troubles which fallowed
all over the countr led the government to ask the Presidentfor exceptional
measures. They were taken under a decret-loi dated 25 February 1961 (13).
Thispermittedsearches under the sole authorityof the Ministerofthe
Interioror his delegate,andadministrativedetentioneither inaprison
or at homeuponadecisionof the sameMinister. Athree-manCommission
(one judge, one prosecutorand one securitycivilservant) was appointed
to advisethe PrimeMinisteronthe suitabilityof the detentiondecision.
This measurewasjustified by the "troubled times" and by reference to
similarmeasures establishedby the BelgiansduringWorldWar II against
personssuspected ofsympathy for theGermansand theirpartners (14). In
fact, thed6cret-loi was intendedmuchmoreas ameansofavoiding arbitrary
detentions than as atool enablingthem; this is clear frommanystatements
made at the time (15). Anarchyhad spreadall over the country, to the
extentthat no citizenfeltsecure fzomarbitrarydetentionandthed~cret-
loi was anattempt to regulateasituationof whichthe governmenthad
practically lostall control.
Somemonthslater, another d6cret-loi,dated 7July 1961, was
passed inorder to revitalizeacolonialdecree of 20October1959 (16).
Thisprovidedfor an 6tatd'exceptionandwas clearly adoptedwith
possible troublesin the pre-independenceperio-d inmind. Itsmain
features were:
- the substitutionofmilitaryautho ies for civil
authoritiesin any regionaffectec.jy the 6tatd'exception;
- the power to searchwithoutwarrantbydayornight;
- the power to order administrativedetention;
- the fullcontrolof associations, publications,meetings
and circulation;
- anextensionofthe jurisdictionof the courtswhich
normallytriedonly pettyoffences; and
- the powerto sentenceto amaximumof 3years'imprison-
mentanyone opposingmeasures takenunder the6tatd'exception.
- 3-'7 -
Withthisddcret-loi the governmentwas addinganother colonial
textto its arsenalofmeasuresallowingswift andefficientinter-
vention inplaceswhere trouble could arise. One mustnot forget that
the central governmentwas still confronted withseriousproblems,
especiallywith the seessionistprovincesof KatangaandSouthKasai,
as wellas in Kivuwhere anarchywas rampantduringthe wholeyear.
However.itdoes notappear that PrimeMinisterAdoulamade muchuse
ofthe_,! powers.
The most important featureot 1961 was the re-establishment
ofafull constitutional
frameworkwhenParliamentmetatthe Univer-
sityofLovaniumon22 and 23 July (17). As aresultofthismeeting
the provisionalgovernmentofJ. Ileoceased toexist andwas soon
replacedby thatofC.Adoula. Full legalityunder the Basic Lawwas
re-established
for the first timesince September1960. Yet states
ofemergencywerestillneeded.
Late 1962, inSeptember andOctober, anumberofarmedrobberies
- somewithheavy casualties - plaguedKinshasa andthis ledthe gov-
ernmetto reviveanother text of thecolonialperiod, the ordonnance-loi
dated 16 December1959 (18). The latterwas meantto repealand recast
thosepartsof the 1888decreeon ther6gimemilitaireas amended in
1917 (19). But, as it was an ordonnance-loi,
it had,under colonial
principles, to be confirmed by adecreewithin sixmonths; if not, it
lapsedand this iswhatoccurredon 15 June 1959, nodecreeof con-
rirmationhavingbeen issued. This allowedthe textof1888, as amended
in 1917, to remain inforce, but it isobvious thatthe Congolese
authoritiespreferredto refertomorerecenttexts. Accordingly, to
deal with the robberies in the capital, they broughtbackto life (one
maydoubt if theyhad the power to doso) the textof 1959 establishing
amilitaryjurisdictionwhenastate of emergencywas declared. This
was implicitly doneby an ordonnanceofPresidentKasavubuestablishing
aregimemilitaire and an6tatd'exceptionin Lopoldville (20). The
ordonnancedoes notsay that the 1959 text is againin force,but it
refersto it asajustifi:ation
for theadopt'onoftheordinance.
Strictlyspeaking,thiswas withoutanylegal force as the 1959 text
had lapsedbefore independence.
However, no-oneobjectedas to the
validityof the ordonnance. The rdgimemilitaireand the 6tatd'excep-
tionweresubjectedtoheavy criticismfromparliamentarians
but tono
avail (21). The military courtswerequiteactiveand sentencedafew
robbersto death; some of themescapedhangingwhenthe Courtof Appeal
quashed the sentenceof the militarytribunalbecause ithad applied
therdgime militaireprovisionsretroactively
to factswhichhadbeen
committedbeforethe rdgimehad beenestablished (22). The ftat
d'exception,under the decreeof 20October 1959,was lifted on30
November1962, i.e. less than threeweeks after itwas established (23);
the r~gimemilitaire lastedfor the full sixmonths forwhichit was
intended,i.e. until 11 May 1963.
Theestablishmentof an6tatd'exceptionin Lopoldvillewas
not the onlyexampleof the use ofthisuevice by thegovernmentduring
thatyear. It was alsoused to bringundergreatercentral control
someof the newprovinceswhichhadbeen createdin the country. A
lawof 9March 1962amended the BasicLawbyproviding (Article7)that
there were tobe only sixprovinces (24). Thecreationof the new
provincialadministrations
had notproved easy and, accordingly, an
dtatd'exceptionwas imposedin threeof the formerprovinces (Kivu,
Orientale and Equateur) (25).
- 378-
Thesewerenot the onlyexceptionalmeasures takenduring the
year1962 and 19G3 -is aresultof the troublesomeconditions inwhichnew
provinceswere created. On 19March1963, the 6tatd'exceptionestablished
in 1962 was abolishedin the formerProvinceOrientale, onlyto be
reinstated at the same date in the new Province of Hlaut-Congo; this lasted
until 8Septemberof the sameyear. Thesamemeasure was adopted in the
newprovincesof the CuvetteCentraleon 12 April 1963,ofManiemaon16
September,ofMo~en-Congonfor the districtof Bumbaon6November,of
Sankuruon8Julyand ofKivu for thedistrictsofGomaand Rutshuru on
6November (26).
At the sametime thatCongowas facingvarioustroubles ata
local level, President Kasavubulost patienceat thepassivity ofParlia-
mentin thedraftingof anewConstitution. On 29September 1963, he
decided to dismissParliament untilanewConstitutionhad been adopted,
to establish (inviolationof the BasicLaw)aspecialcommissionfor the
draftingofthe newConstitutionand finally to rule throughordonnances-
lois until the latter had beenapproved. Thisdeprived thecountry of
parliamentary representationfor some two years (27). Simultaneously,in
viewofpossible troublesand in order to haveall the necessaryauthority
duringthatperiod, the governmentdecided:
- to establish for sixmonthsardgimemilitaire sp~cialand an
6tat d'exception in Ldopoldville;
- toexpel from the capital anyonewithout regularpapers;
- to forbid all activitiesofthe fourmainoppositionparties;
- to forbid nightnavigationon the river Congoarcund Ldopold-
ville;
- tosuspendpublicationofthe newspapers "Pr~senceCongolaise"
ani "Dipanda",as well as thedistributionof theBelgian
periodical, "PourquoiPas";
- to add newoffencesto the PenalCode; and
- to arrestvariouspersonalities (tradeunion leaders,journa-
lists, etc...) (28).
The justificationforthesemeasureswas the generalpolitical
and socialagitation inLdopoldvilleatthe time whichconstituteda
directmenace to theexistinginstitutions. Thiswas, indeed, thetime
when the oppositionpartiesweregainingstrength andhadcroatedin
Brazzavillethe ConseilnationaldeLibration,while trade unionswere
launchinggeneralstrikes followedbyten thousandsofpeopleinthe
capital.
Thus theyear 1963endedwithcent.al andprovincialinstitutions
alike beingputunder statesofexception.
Theyear 1964beganunderthe worstconditions as theMulele
rebellionbroke out inKwiluduringJanuary. Accordinglyandquite
logically, anCtatd'exceptionwas established inKwilu (29). This
firstmeasurewas not sufficientto dealwith therebelxion and,
accordingly, alawwasadoptedpermitting theestablishmentof special
militarycourts inregionswherean 6tatd'exceptionhadbeendeclared.
Ordonnance-loi no. 49, dated 29February1964,enabledaspecial court
martial to sit inplaceof the ordinarymilitarycourtsunderthe
- 379 -
r~gimemilitaire,withthe differencethat sentenceswere immediately
executedwithoutany appealor review (30). This increasedthe powers
of the r~gimemilitairewhich,aswehave seen,wasnotentitled to
suppress the rightof appealwhichwas protectedbyArticle 187ofthe
Ba ic Law. Obviously, the ordonnance-loiof 1964wasunconstitutional
asit deprivedthe citizensofaconstitutionalprotection. It is
true that the Congolesegovernmentwas thenconfronted withits most
serious crisis since independenceas its army wasfleeing in frontof
the rebels; yetone mayquestionthe constitutionalityof its
decision. The newlawwas immediatelyappliedto theKwilu regionby
anordonnance dated2March1964 (31). Noinformation isavailable
as to thenumberof personswho were sentencedby themilitarycourts.
In the meantime,theConstitutionalConferenceassembledin
Luluabourgconcludeditsactivitiesand the firstConstitutionof the
CongoRepublic came intoforceon 1August1964 (32). By then,rebels
were active allover thecountry and this justified anewset of
exceptional measures.
These wereof two sorts. One theonehand, under the new
Constitution,Article97 gavethe Presidentthepower to establishan
6tatd'urgenceand, if suchwas the case, tosubstitute, underArticle
124, military courts for ordinary jurisdictions.
Thisexceptional powerof the Presidentwas subjectedto
parliamentarycontrol. UnderArticle 97, thePresidenthad to summon
parliamentif it wasnot in sessionwhenthe6tatd'urgencewas
declared. In factnothingof the sort tookplace in 1964as parlia-
mentwasonleave andwas not summoneduntil latein 1965. Thus
parliamentarycontrolover theexceptional measureswas neverallowed
to takeplace. The sameis trueof the controlentrustedbyArticle
97 to the ConstitutionalCourtwhichdid not existat the time. Etats
d'urgenceweredecideduporor 14 Octoberin theprovincesof1,4ango,
Kwilu,NorthKatanga,i.e. thosewhererebelswere the mostactive and
constituted the greatestthreat (33). Atdawn on24 November,Belgian
paratroopslandedinStanleyville openingtheway for theCongolese
army andmercenarieswno liberatedthecityduringthe day. On the
sameday,PresidentKasavubuissued adecreeunderhispower to legis-
late whileParliamentwas suspended. Its purposewas to substitute
military courtsfor the ordinarycourts andto allow "arapidand
exemplaryrepressive actionagainstall these whohavecommitted
criminalactionswhethertheybelongto the rebellionorhavetaken
advantageof the disordercreatedbythe rebelsin order tocommit
offences" (34). Thedecree was similar toprevious textsin thatit
increasedvariouspenalties for seriousoffencesand deniedtheright
ofappeal to anyonesentencedby the militarycourts. Thiswas again
indirectviolationof Article124ofthe 1964Constitution,which
expresslyprovided thatwheremilitarycourts are substitutedfor
ordinarycourts andtribunals,rights ofdefence and ofappealcannot
be suppressed (35). Anotherdecree, dated28 November,gave the
Ministerof the Interior the powerto dissolvea.l associations,
groupsandpoliticalpartieswhichdidnot"respectthe principlesof
nationalsovereignty,democracyand the lawsof theRepublic" (36).
Oddlyenough,the regionofStanleyvilledidnot comeunder these
measures. There,repressionwas simplycontinuingandscoresof
"rebels"wereexecuted inpubliconce theircollusionwiththe
rebellionhadbeensummarily established (37).
- 380 -
The fightagainst the rebelswas carriedonduring theyear1965
andthis justifiedthe establishment of other 6tatsd'urgenceinvarious
provinceslikeHaut-Congo,Kibali-Ituri,U4I5,CuvetteCentraleand Maniema
(38). In these, as in others under the Constitutionof1964, committees
wereestablished to supervise the applicationof the6tatd'urgencebythe
armed forces. Theywere createdby adecree dated 14October 1964. which
vis issuedunder Article101 of the Constitution (39). In the sameyear,
on25 November 1965, the Army seizedpower in its second coupsince
independence, endingthe First Republic. In summarising the period1960
- 1965, it maybe saidthat:
- the legalmeasuresprovidingforstates ofexceptionwere
clearlyaheritage fromthe colonialperiod;
- they certainlywere neededinviewofthe successivecrises
which the youngRepublichad to meet;
- theseriousness of these crises, combinedwith their
acconpanying violence (e.g.inNovember 1964 inStanleyville),
led to an over-vigorous reactionby thearmed forcesandof
the militarycourts entrustedwiththe repression;
- whereverspecialmeasures were taken they seemtohave been
due to the existingsituation in the regionsconcerned rather
than to awish toeliminate politicalopponentsunder the guise
ofemergencymeasures. Nevertheless,it is alsoclear that
theexecutive frequentlydissolved theParliamentquite
illegally and, as aresult, removedaconstitutionalcheckon
its activities;
- inmanycases (forexample,in the capital in1962),
exceptional penaltieswereappliedexpostfacto to offences
committedbefore the emergencyhad beendeclared. Thiswas
theresultpartlyofadesire to retaliate againsteither
criminals orrebelswhowere considered "obviously"guilty,
and partlyof alackofperception oflegalprinciplessuchas
non-retroactivityof criminallaws; and
- finally,manyof themeasuresadoptedwere clearlyun-
constitutional. Thisunconstitutionality was ratherasign
ofthe times thanan exceptionduring the eventfulfive
years.
III. THESECONDREPUBLIC,1965- 1980
On 24November1965 a 'r~gimed'exception'was establishedby
the ArmyHighCommandwhichseizedpowerin the night (40). It is,
however, notveryclear i.,hat wasmeant exactlyby these words,whichwere
unknown to the 1964Constitutionwhich,as we have seen, spokeonlyof
an6tatd'urgence. Simultaneously,General Mobutuwas toexercise all
thepowersof thePresidentofthe Republic (41). He doesnot seemto
havemadeany use oi hispowers to declare an 6tatd'urgence in 1965but
usedthemextensively duringthe fightagainst the rebelsin 1966. On
the otherhand, inMarch 1966 he broughtto anendan 6tatd'urgencewhich
had beendeclaredprior to the militirycoup inaregionof Sud-Kasal (42).
The samewas donein 1966 and 1968for the 6tatsd'urgencewhichexisted
inCuvetteCentrale, Haut-Congo,Kibali-Ituri, Maniemaand U616 (43). But
seriousproblems hadnotyetbeenencountered.
- 381 -
The firstwas thatof theso-called WhitsunPlot (44) . It
involvedmembersof the armed forces (whowere however left in the
background,
theiridentities
notbeingdisclosed)
and fourprominent
politicians,
all of themfcrmerministers,
J.Anany,E.Bamba, E.Kimba
and A.Mahamba. The day after theconspiracy
(ifconspiracy
thereever
was)wasdiscovered,
anordonnance-loi
(45) madebyGeneralMobutu
underhis specialpowers, es'ablished
an exceptional
militarycourt.
Itwas composedof threehigh-ranking
officersappointedby him,
defined itsown procedure
and there was norightofappealor review
of itsdecisions.
Thetrial took place on31 May, lasted anhour and
ahalf, andafter five minutesof deliberation
the sentencewas pro-
nounced: death for all four accused. It was carried outonthe morning
of2June. It is obvious that the militarycourtwas "exceptional"
inmanyrespects:
it was established
after the facts, itsprocedure
was
quite summary, the accused werenot defended byalawyer, the President
often interrupted
the accused,stating that the courtwas there to
work fastand efficiently
andnot to listen to speeches,andfinally
therewas norecourseagainst its decisions.
The trialwas conducted
in the openwithahugeagitated andshouting crowdencircling
the
tribunal.
Finally, the lack of appealwas in directviolation
of
Article124 of the 1964 Constitution
whichwas still inforce. This
was theonlyoccasionwhenthe militaryregimeadoptedemergency
procedures
before the adoptionof the 1967Constitution
(46). Yet the
samecourt, beforeit wasdisbanded,
sentencedon 18Juneaformer
Minir.ter, C.Kamitatu,to five years' imprisonment
as anaccomplice
in
theWhitsun Plot. Unlike the otheraccused, Kamitatuwas tried in
secret, the press and the publicbeing excludedfrom the courtroom.
He was alsodeprivedof counsel and of course had norightofappeal.
The fact that the Presidentdid not takeadvantage ofhis
powers concerning
apossiblestateofemergencydoesnotmean that the
situationwasnormal. As we haveseen, the SecondRepublicwas, for a
considerable
time,characterized
by atotally new concept: thatof the
regimed'exception.
Under the latter, PresidentMobutu:
- conferredonhimself of 30 November1965, the powerto
decidebyordonnances-lois
all matterswhichwere normally
votedby Parliament
(47);
- receivedon7March1966 the fullpower of legislating
inall matters (48);
- restorcdthe legislative
powerofParliament
on
21October 1966 (49), butdid not losehis ownpowers
to legislateifneed arose; and
- dismissedParliament
in June1967, after the newCon-
Stitutionhad been adopted,anddid notreconveneit until
late 1970 (50).
Thus,during the firstfiveyears ofthe newregime,Parliament
wasas absentfromth( legislative
scene as it had beenduring the
FirstRepublic.
Moreover,systematic
attacksweremade againstan
institution
of which themembers wereconsidered
as "dead-weights"
by
theHead of State.
Article 54of the 1967 Constitution
providedfor astateof
emergency (6tatd'urgence)
whichcan be established
by thePresident
ofthe Republicafterhaving consultedtheBureauof the National
- 382 -
Assembly; itcannot last for more than sixmonths. Under it, thePresident
is free to take all measures justifiedby the circumstances, including,
underArticle 58, the substitutionofmilitarycourts for ordinarycourts.
Yet, under the same article, he cannot alter the rights of defence and
appeal. Since noelectionswere held inCongobefore the end of1970,
the Presidentwas free to act at his will for some threeyears. In the
1975 revision of the Constitution (51) the President had the same powers,
but under it he was not required to consult the Bureau of Parliament and
was completely free to declare an etatd'urgence (Article42) and to
establish military courts where he thought it necessary (Article 21). The
1.978 revision of the Constitution (52) has somewhat modified these pro-
visions. On the one hand, Article 48 requires that the President consults
the Bureau politique of the IMouvement populaire de la R6volution before
establishing the ttat d'urgence. On the other hand, Article 49 states
that, under the Otat d'urgence, the President may:
- take all measures justified by thecircumstances and among
others:
- restrictthe use ofindividual liberties;
- substitutemilitary courtsfor ordinarycourts.
Yet, as in allprevious texts, he cannotalter orsuspendthe
rights of defence and appeal.
From1966 onwards,if oneperuses the OfficialGazetteofCongo
and, later, ofZaire, one findsno reference to the establishmentof an
6tatd'urgence or to asubstitutionofmilita.ry courts for ordinarycourts.
Even when events were at their worst for the Republic, as during the Shaba
wars, no 6tat d'urgence was ever formally declared in the region. However,
one finds scattered and indirect references to an 6tat d'urgence in texts
like the ordonnance of 17 May 1978, which appointed General Singa as Head
of the Fiust Military Region and declared that "during the whole period of
military operations, the commander of the Military Region shall be entrusted
alone with all powers vested in the Regional Commissioner" (53) . This is
clearlyan applicationof the6tat d'urgencewhich substitutes military
authoritiesfor civil authorities. Yet nothingis said aboutmilitary
courts. Thisdoes notmeanthat since 1966 the countrywas leftwithout
special courts.
On 28 September 1972, aStateSecurityCourt (CourdeSrret6 de
1'6tat)was established (54). This text was amendedby an ordonnance-loi
dated 14 August1974, and finally insertedin the Codede l'Organisation
etde la Comp6tence judiciairesby alawdated 21 June 1976 (55), which
abrogated allprevious textsdealingwiththe StaLeSecurity Court. This
is clearly an exceptional court as its existenceis not providedfor in
Article 59 of the 1967 Constitution,whichsays that "courts and tribunals
altogetherincludeaSupremeCourtofJustice, Courtsof Appeal,military
courtsand tribunals" (56). At present, the organizationof theState
SecurityCourt is as follows:
- its seat is composedof three judgesselected fromthe
regular judgesof the court;
- there arepublicprcsecutors speciallyattachedto theCourt;
- it hasexclusive jurisdictionforsome tencategories of
offences,amongwhichare offencesagainstState security
- 383 -
as detailedin titleVIII of the PenalCode; againstthe
Headof State as regulated byordonnance-loi
no. 300, dated
16 December1963, and insults to the same as definedby the
PenalCode,Articles 74 and 76; offences assimilated
to
rebellion,armed robberyand murderwhen connectedwith
theft; offencesagainst the regulations
protectingminerals
and all offencesconnectedwiththem;
- there is no appeal against the decisions of the Court,but
the mattermay be brought to the SupremeCourtfor violation
of formsor of the law itself.
The StateSecurityCourt is accordingly
the onewhich has,
since 1972, handledall "plots" against the Republicand its govern-
ment.
Apart fromthe 6tatd'urgenceor the r(ginemilitaire,
occasionalmeasures havealso been takenagainst specificorganisations,
as, for example, in 1971 (57), against the Rose-Croix,
the freemasons,
the templars, and the CaoDal members; the justification
for thiswas
stated to be that they were a nuisance to public order. The measure
was rescinded insofar as freemasons were concerned in 1972 (58). These
restrictions
to the freedomof association
were imposed underArticle
18 of the 1967 Constitution
then in forcewhichprovided that: "Groups
ofwhich the aim or the activitywould be contraryto the lawor
dii-ected against public order are prohibited"
(59) . This, of course,
reduces considerably
the protection
guaranteed by the first paragraph
of Article 18.
The government of Zaire has ratified both the International
Covenants on human rights, that is the Covenants on Economic, Social
and Cultural Rights and on Civil and Political Rights, and it is one
of the rare Africancountries to have ratified theOptionalProtocol
to the latter covenant, recognising
the rightof individual
petition.
Some elementsof these covenantsare to be found in the new Con-
stitution of Zaire. At the endof 1979asymposiumonhumanrights
was held at Lubumbashi.
Whenregard is had to the realityof humanrights observance
in Zaire, all these gesturesare to be seenas littlemore than
window-dressing.
Politicalprisonershave no legal protection.
In the interro-
gationcentres of thepoliticalpolice (knownas theNational
Documentation
Centre - CND) and inothermilitary andpolicecamps,
political prisonersareoften beaten, torturedand livein appallingly
crowded conditions.
At times the authorities
announce to the families
ofprisoners whohave died in detentionthat they diedin hospital.
Usually, however,such deaths are not announced, the familiesbeing
informed neitherof the arrest nor the deathof thepersons concerned.
Prisonersawaiting trial almostalways remainwithout anycontact with
persons outside, and are unable to get in touchwith lawyersorinform
their families of theirwhereabouts.
In law, the CND areentitled to holdsuspectsfor onlyfive
days, but the legal procedures
for arrest anddetention areseldom
respected.
Suspectsarrestedeitherby the CNDorbyothersecurity
- 384 -
forces,such as the ordinarypoliceor the disciplinarypoliceof the
Youthof thePopular RevolutionaryMovement,simply remain in adminis-
trative detentionas long as the security forces decide,without being
able tocommunicatewithanyone outsideor to lodge an objection to
their detention. This constitutes a serious violation of Article 15
of the Constitution in force, as well as of Zaire's international
obligations under the Intern,,tional Covenint on Civil and Political
Rights.
Arbitrary arrests are frequent and it is often difficult to
tell who has been arrested for political reasons andwho for suspected
co non law offences (6).
Since General Mobutu seized power there have been a series
of trials against persons accused of plotting his downfall. Many of
them have been condemned to death or summarily executed without any
right of appeal. During the 1960's executions were often in public.
In May 1974, forty-eight prisoners condemned to death were, shortly
before their execution, brought before a large crowd in Kinshasa stadium
in the presence of nunerl Mobutu. In recent years executions have not
usually been in public, but in January 1978 fourteen of those held res-
ponsible for disturbances in the region of Kwila were publicly hanged at
Idiofa
Hundreds have been executed summarily without trial, for example
after the Shaba war in May 1978. In 1979, Amnesty International received
reportsof mass executionsof 'criminals'near the portof Matadi in the
provinceof Bas-Zaire.
Looking back over the 15 years of the SecondRepublic, onemay
reach the following conclusions:
- the decline of the parliamentary institution is obvious and
even clearer than during the First Republic. It was to cul-
minate in Article44 of the 1975 Constitution (63of the 1978
Constitution)which provide that the d6cisionsd'Etat adopted
by the Bureupolitigueof the singleparty,oftheMouvement
populairede la R6volution would ho binding onallcitizens
and onParliament,whowould onlyput themin the formal
mould of alegislativedocument;
- power is over-centralizedat the level of the Headof State
and onemay without hesitation speakof anabsolutemonarchy
inwhich theruler's will is practically without limits;
- in this context,constitutionalprovisions and forms tend to
lose their strengthand efficiency
whether they still have anysense;
- onemay evenquestion
- in this contextalso, astateofemergency is
need and, as one has seen, it was practically
at least, publicized;
not an absolute
never used or,
- indeed, with the end of the rebellions, which was a reality
by the endof 1966, order had beenrestoredwithinthe Republic.
Thus therewas really no needto declareemergencymeasures
in the course of the recentyears; the onlysituationwhere
theywereneededwere the two Shabawars of 1977 and 1979. In
these cases, the government wasconfrontedwithopenwarf;re
andit could notbe said thatexceptionalmeasureswerenot
justified;
- 385-
- the CourdeSOret6 del'Etat hashad manyoccasions
to sit
since it was established,
and it seems that its proceedings
have never been challenged
for irregularities;
- themilitary regime in Zaireis widelybelieved
to have
beenaccompanied
by graveviolations
of humanrights, such
as the existence
ofdetention
campswhere conditions
of
the detainees
re inhuman,
regular practices
of torture by
the secret police, brutalities,
not to mention outright
killings,
by the armed forces when cal led in order to re-
establish
orderin somepart or anotherof the country;
and
- these violations
of human rights may have been worse during
the periods of tension which have led to states of emergency
of one kind or another, but they are due not so much to an
abuse ofemergency
powersas to the normalpowersofa
dictatorial
regimewhich is not subject toany effective
check by an independent
legislature
or judiciary.
-0-0-0-0-
- 386-
N 0 TES
I Moniteurcongolais, 1960, p. 152'.
2 Ibidem.
3 Bulletin officiel de I'L<tt ind6pendant du Congo, 1889, p. 14
et Bulletin officiel di Congo bolge, 1917, p. 392.
4 Moniteur congohliis, 196), p. 1535.
5 Bulletin officiel du *ongo belqe, 1917, p. 392.
6 This text wei not n"idIi;;ho1 in the officiol Ga::ette. It can
be found irk 6!.ChPAD-LIHOI5 J. ind VERILAECEr B., Congo 1960, p. 702.
7 The text deli nq with the pes was only pu-li.shed in idem, 1968,
p. 960 (and ). 968 for fulbsidiiry leqis;htion adopted under that
text) , "i.ile t, t on moetines ind assoeiatioi is in idem, 1960,
p. 2493.
8 Bulletin Off iciLl dU 'ongo biUge, 1922, p. 818.
9 The Army proclariation of 14f Su--pt,- mher 1960 is puV ished in J.
GERARD-I.POIS and L. VERIIAi;E C, Congo 1960, Bruxe-les, C.R.I.S.P.
M.d., p. '613, which provides for that and subsequent years until
1967 th host and most detailed background reading to the
notitic",l history of Congo. After that year, no synthesis is
aw.'ilable hut thit ustabli: heC under the responsibility of
VANDERLINDEN J., under the title Du Congo beige au Zaire, Bruxelles,
C.R.I.S.i. , 198w .
10 Moniteur congolais, 1960, p. 2535.
11 Congo 1960, pp. 876-877.
12 Moniteur congolais, 1961, p. 39.
13 Idem, p. 66.
14 BulletinadministratifduCongobelge, 1940,p.427.
15 B.VERIIAEGEN, Congo 1961, pp. 123-124, wherespeechesby Prime
Minister Adoula are reprnuced.
16 Moniteurcongolais, 1961, p. 474 et BulletinofficielduCongo
beige, 1959,p. 2412.
17 Congo 1961, p. 398.
18 BulletinadministratifduCongobelge, 1959,p. 3269.
19 Supra, note 3.
20 This text was not published in the Official Gazette. Itcanbe
found in Congo 1962, p.82.
21 Congo1962, p.85.
22 This decision has not beenpublished.
23 Moniteurcongolais, 1962, p.279.
24 Congo 1962, p. 193.
25 Moniteurcongolais, 1962, pp.141 and 292, 219 and 278.
26 Moniteurcongolais, 1963, pp.76, 204 and465; 82 and 207;
467; 491; 205.
- 387-
27 Therelevantlegislation (ordonnancesnos.226 and 227) are in
Moniteurcongolais, 1963,pp. 422and 423.
28 Congo1963, pp.130-149,when allrelevantdocumentsare
published. See also,Moniteurcongolais, 1963, p. 483;
1964, pp. 21, 135, 136, 174, 175 and 2.
29 Mnniteurcongolais, 1964, p. 168.
30 Idem, p. 201.
31 Idem,p. 203.
32 Idem,special issuedated 1August1964.
33 Idem,pp.613, 614and 615.
34 Idem,1965, p. 15.
35 Idem, 1964, special issuedated1August1964,p. 21.
36 Idem, 1965, p. 16.
37 Congo 1964, p.532.
38 Moniteurcongolais,pp. 834, 327 and 1040.
39 Idem,1964, p.611.
40 Congo1965, pp.409.
41 The declaration read before Parliamentand whichrefers
to this newsituationcanbe found in Congo1965, p.413.
There is noreference to it in theArmyproclamation
establishing the new regimeand published inaspecial
undated issueof theofficial gazette. As for the attribution
of all presidential powers to General mobutu it results from
the latter proclamation.
42 Moniteurcongolais, 1966, p. 172.
43 moniteurcongolais, 1968,pp. 835, 133 and 376, all these
ordonnances being retroactiveones.
44 Congo1966, p.431.
45 Moniteurcongolais, 1966, p.489.
46 Idem, 1967, p.564.
47 Idem, 1965, speci undated issuealready citedabove
in note 41.
48 Idem, 1966, p. 158.
49 Idem, 1967, p.1.
50 Congo 1967, p.129.
51 Journal officielde la RpubliqueduZaire, 1975,
special issue.
52 Idem, 1978,special issue.
53 Idem, 1978, p.39 of no. 12 dated 15 June.
54 This textwas not published.
55 Idem, 1975, p. 185, and 1976,p.696.
56 See above, note45.
- 388-
57 Moniteurcongolais, 1971, p. 780.
58 Journalofficielde laR~publique duZaire,1972, p. 360.
59 Seeabove,note 46.
60 Arecent authoritativeaccount of the institutionalised
corruptionand brutalitiesof the regime willbe found in
Mobutuou 1 incarnationdumal Zalrois by NCuzaKarl IBond
(RexCollings,London 1982). quza isaformer Ministerof
ExternalAffairs (1972-74, 1976-77, 197H-80), Secretary-
General of the single party C 974-7V) and Prime Minister
(1980-81). charged with treason in 1977-78, he was himself
detained for some 12 months,during which h was tortured.
He was sentenced to death, tho setence being commuted to
life imprisonment. Subsequently released, under an amnesty,
he wasappointedPrime Minister. He resigned during a visit
to Belgium, stating that it he had not done so, he would have
been returned to prison.
- 389-
QUESTIONNAIRES
ONSTATES
OF EXCEPTION
AND ADMINISTRATIVE
DETENTION
In 1978, two questionnaires,
one on States of Exception
and
anotheron Administrative
Detention,
weresent to 158 countries.
Replies
werereceived
from 34 countries.
Of these, 29 (1)were received from
Government
departments,
"suilly theMinistry
of Justice or aLawofficer.
The remining
5 were (2) from individuals
and non-governmental
organ-
isations.
Summary of the rtolie; on States uf Exception
The qeneri. ter.m stoto of exception in used here to describe
the suspension
of ord-prture
from leqal normality
undersuch titles
as state of em.argensy,
state of exception
or state of siege.
The qutrstiomn-ilire
on stares of exception,
of which a copy will
be found in the Appendix,
dealtwith fourmajor area". The first dealt
with the dcl aati on of tstates of exception,
coverinag
such questions
as
whether the constitution
provided
for the states of exception,
whether
therewas -epnr. te 1eqi51tion
on the subject and questions
relating
the definition
Qi:statsof
to
excentlion
and procedures
for its proclamation
anddurition.
The secon., area covered wis the effects of states of exception,
in particular
f:octs on thr executive
leginlature
and judiciary,
the
possibility
of rh~11eni inq its validity,
and ncn-derogable
rights and
enforcement
Q.fundamental
rights durinq g state of en:ception.
The third series ofquntions related to past and present states
ofexception
and tneiref'euts. There was also aquestion
onwhether
0f
notice of ci state
exception
was given to international
or regional
organisations.
The fourtl major area dealt with the suspension
or abrogation
of the constitut
o under i state of exception.
Declaration
and Procedure
Of the 34 uountr:.,
2,0 (3)have constitutional
provisions
for
declaring
a state of except-ion,
five (4)have separate
legislation
in
(1) Antiqua,
Arqgntinl,
Austria,
Pol(ium, Belize,Cape Verde, Cyprus,
Denmark,
Fcderial Republic
of Germany,
Fiji, Finland,
France,
Gabarone,
mbia, I.;rael, Liezfi n-tmn , Luxembourg,
Malaysia,
Morocco,
Netherlands,
New Sealand,
Papua NewGuinea, Seychelles,
Singapuro,
Sweden, Th ii i. 1. U'nited Kingdom, Uited States of
A'erica , ":ent(ern simo:.
(2) Colombia,
Indi, Nnepal, Portugal,
Turkey.
India.n reply was sent
by a lawyer nomnited
for the )Cu rpseb.
1
y he then Attorney-General.
(3) Argentina,
,utria, Peli;e,
clombia,
'yprun, )iji, Finland,
Gabarone,
Gambia,
India, Malaysia,
Morocco,
Nepal, Netherlands,
Portugal,
Seychelles,
Sweden,Turkey, UnitedStates of America,
WesternSamoa.
(4) Antigua,
France,Papua NewGuinea, Sirgapore,
Thailand.
- 390 -
additionto constitutionalprovisions, and six (5)have nocon-
stitutionalprovisions but have legislationdealingwithstates
ofexception. Three cointries (6) have no provisions either in
their constitution or in their legislation.
None of the replies gave a definition of the conditions or
circumstancen- which constitute a state of exception, other than to
refer to the lirnal grounds for proc[aiming one. Of these, two (7)
referred to a 'public emergency' and 'a state of siego or public
emeirenhcy, and nie (8) referred to a 'state of war' Other replies
gave a variety of descriptions, which will hereafter be referred to
as 'internal disorder'. These included 'internal crisis' or 'public dis-
rer ' (0) , 'isption in thj'e supply of essentials to the public' or
'cvii rsis (1) , 'financial or economic crisis' (11), 'threat to
the republic or democratic functioning' (12), 'threat to national
!;ecurity' (13), 'st ito of siege' an1 'sotate of emergency'
Iihly t-c,-Ountries (1-1) stated that they distinguish between
sties of siege' .ard 'states of emergency'. For them i state of
S eje relt, 's t externl i(jgresFion or war. A state of emergency
relate; to ,i 'itu,t ien if internal disorder.
[ Iovvon c,,tntri-s (15) the proclamation ,.f a state of
ic't ua', ,ad' 1',' ths Prosident (with or without tihe advice of
i,r i nt two the C ii ). P1) Iprfcliims it- in countries (16). In
v c,-, nt ; (17) th(, prnclmit ion is made by the Crown on the
,ivic, he 'ineto. in one country (18) a military comnander has
the )ower t,7 proecIait orgoncy in the are,i of his command. In five
Unt t 0o'; (10) the Prim, Minister or the Council of Ministers have
the townr to 1nrocliim I ;tato of exception.
(5) 'pe Ver*, .'ederil Pepub]ic of Germany, Israel, Liechtenstein,
New Zen lan.I,U cd Fingdom. Yni
(6) Belg ium, Donrmtrk, Luxembourg.
(7) i el i-e, Portug ,I .
(8) Argentini, 'ypr,1!-, 1iji, Finland, India, Morocco, Netherlands,
Sweden, United States of America.
(9) Antiqun, Arg'entina, Finlrind, India, Nepal, Thailand.
(10) Fitlind, United Zitlgdom.
(lt) Fitnlird, !n|ii, Singapore, W'estern Samoa.
(12) I , ru!';, ,',-Ier.til P Ip l i( of Germany, Morocco.
(13) int':ai,,re, 'Thailand, Western Samoa.
(1 1) Co'onia, France.
(15) Ant i'i, Argent i, Finland, France, Gabarone, Gambia, India,
Portu. jI, S;oyohelles, Singapore, Western Samoa.
(16) Fedo:ral Republic of Germany, S;wecten.
(17) Ma].ys i, M1orocco, Nepal, Netherlands, United Kingdom.
(18) Thailand.
(19) Cyprus, Israel, Papua New Guinea, Thailand, Turkey.
- 391 -
In ninecountries (20)theproclamationhas tobesubmitted to
theParliamentfor approval.
Regardingthe role ofthe courts, inonlyone country (21)
does theSupremeCourthave toruleon thevalidityof theproclamation.
Onthedurationofastate ofexception, in elevencountries (22)
the durationisunlimiteduntil revokedby the Governmentor the
Parliament. In fourcountries (23) it is for anunlimitedduration
after an initialapprovalofthe Parliament. Consequently, in 15 of
the 31countries,astateofexceptionis unlimitedinduration,avery
highproportion. In tencountries (24) Parliamenthas toapprove the
proclamationwithinacertainperiodof time. This timeperiodranges
from48 hours (25) to 60days (26). Oftheseten, in three countries
(27) ithas tobe extendedby Parliamentevery sixmonthsto remainin
force.
Effectsof StatesofException
Onthe effectsof statesofexception,particularlyonthe
powers of the executive,legislature and the judiciary, onlythree
countries (28) stated thatthere is nochange in the separationof
powers. In 18 countries (29)thepowers ofthe executiveareenlarged.
Theincrease ofpowervariesgreatlyfromonecountry to another. In
twocountries (30) the Kingassumes thepowersofthe legislaturein
additionto thoseoftheexecutive. Thereplies fromonly fivecountries
(31) refer to changes in thepowersofthe legislature, ofthesefive,
two (32) stated thatduringastate ofexceptionthe legisloturecould
makelaws contrary totheConstitution.
(20)Cyprus,France,Gabarone,India, Netherlands,PapuaNewGuinea,
Turkzey, UnitedKingdom,WesternSamoa.
(21) Colon-bia.
(22) .:gencina, Colombia,Fiji,Malaysia,Morocco,Nepal,Netherlands,
Seychelles, Singapore,Thailand,Turkey.
(22) Gambia, India, PapuaNewGuinea,Portugal.
(24) Antigua,Cyprus,France, Gabarone,Gambia,India,Papua New
Guinea,Portugal, UnitedKingdom,WesternSamoa.
(25) Cyprus.
(26) India.
(27) Antigua,Cyprus, Gabarone.
(28)France,Gabarone, Netherlands.
(29)Antigua,Argentina, Belize,Colombia,FederalRepublicofGermany,
Fiji,Finland,Gambia,India, Israel,Malaysia; Papua NewGuinea,
Seychelles,Singapore,Thailand,Turkey, UnitedKingdom,Western
Samoa.
(30)Morocco,Nepal.
(31) Belize,FederalRepublicofGermany,Fiji, Malaysia,Singapore.
(32)Malaysia,Singapore.
- 392-
With regardto thepowersofthe courts, sevencountries f33)
referredto theircurtailment. Ofthese,five stated (34)thatthe
jurisdictionofmilitarycourts is extendedto cover civilians.
Noneof thecountrieshasaprocedure for enablingthe citizen
to challengethevalidityof aproclamationofstates ofexception.
Asregards fundamentalrights thatmay not bederogatedfrom
evenduringastateofexception, tencountries (35) statedthat all
rightsmaybe the subjectofderogation. In onecountry (36) onlyhabeas
corpus is suspended; all the other rightsremainunaffected. All the
othercountriesreferred to some rightor rightswhichcannotbe
derogatea fromandfour (37) includedthe righttolife as one ofthem.
Onlyone country (38) enumerated all the non-derogablerightsmentioned
inarticle 4of the InternationalCovenantonCivil and PoliticalRights.
Onlyone country (39) has provisionfor including inthe proclamation
itself the rights thatare to bederogated, and the rightto lifecannot
heone of them. In all but threeof the countries (40)proceedingsmay
be taken beforethe courtsin caseofviolationsof fundamentalrights
statedin theconstitution.
Pastand PresentStatesofException
At the time the replieswere sent,statesofexceptionwerein
forcein sixof the countries (41), and ofthese the proclamationhas
sincebeen revokedinone country (42). Inthe last20 years,eight
other countries (43) hadproclaimed statesofexception. Only one
country (44) saidthatithadgiven noticeto aninternationalorgan-
isation, namelytheCouncil ofEurope.
(3') Antigua, Colombia,FederalRepublicofGermany,Malaysia,Nepal,
Thailard,Turkey.
(34)Antigua, Colombia,FederalRepublicofGermany, Thailand,Turkey.
(35)Ccbombia,FederalRepublicofGermany,Gabarone,Malaysia,Morocco,
Nepal,PapuaNewGuinea,Seychelles,Singapore,Turkey. Inthis,
inSingapore, Muslimlaws and customsareprotected.
(36)UnitedStatesofAmerica.
(37)Cyprus, India, Netherlands,Portugal.
(38)Cyprus.
(39)Portugal.
(40)Morocco,Nepal, Thailand.
(41)Argentina,Colombia,Israel,Malaysia,Thailand,Turkey.
(42)Colombia.
(43)Antigua, Belize, India,Morocco,Nepal,PapuaNewGuinea,Portugal,
UnitedKingdom.
(44)Turkey.
- 393 -
Innocountryhadthe validityoftheproclamationof state of
exceptionbeenexaminedbythe courts.
The proclamation inone country (45)wasdue tonatural calamity.
One country (46)stated thatof the threeproclamationssofarmade,
itwas twicedue toreasons ofexternalwarand once to internal dis-
order. In onecountry (47) the proclamationsweredueto trade union
strikes. Another (48) country stated that its emergencywas due to
externalthreats and thatastate ofexceptionhad remainedin force
since 1948. In theother countries (49)the ,easongiven was internal
disorder.
Suspension and abrogationof the Constitution
All the countriesexcept one (50)have awrittenconstitution.
All the constitutionsprovide for fundamentalrightsin one formor
another.
Onthe questionof suspensionin whole orinpartorderogation
of theconstitution,in five countries (51) newconstitutionswere
enactedduringthe emergency. Onecountry (52) amendedthe constitution
todeletethe right to leave the country. In another (53) extensive
amendmentsweremade to the constitutionduringanemergency and after
the emergency therewere furthermodificationsofthese amendments.
In thereplies of theseven countries (54)whichhad suspended
orderogated fromtheir constitutior, nodetails were :ivenabouttheir
effectson civil andpolitical rights.
(45) Belize.
(46)India.
(47) UnitedKingdom.
(48)Israel.
(49)Antigua,Argentina,Colombia,Malaysia,Morocco,Nepal,Papua
NewGuinea,Portugal,Thailand,Turkey.
(50)UnitedKingdom.
(51) Morocco,Nepal, Portugal,Thailand,Turkey.
(52)Argentina.
(53) India.
(54) Argentina,India,Morocco,Nepal,Portugal,Thailand,Turkey.
- 394 -
Summaryof theRepliesonAdministrativeDetention
Thequestionnaire onadministrativedetention,ofwhichacopy
willbefound inthe Appendix,had twelve headings :
- constitutionalprovisionorlawordecree
- operationsof the lawor decree
- notice todetainee
- right toalawyer
- publicnotice
- notice torelativesorfriends
- interrogation
- judicial
review
- reviewcommitteeortribunal
- parliamentary control
- procedures regardingdetention
- conditionsofdetention
Thequestionnairedefinedadministrativedetentionas
follows :
"Forthe purposesof thisquestionnaire,administrative
detentionmeansthe deprivationof aperson'sliberty,
whether byorderofthe Head ofStateorofany executive
authority, civil ormilitary, for thepurposes ofsafe-
guardingnationalsecurityor publicorder,orother
similarpurposes, withoutthatper-9nbeing chargedor
broughtto trial."
Replieswere receivedfromthirty-fivecountries. Thirty
were replies byofficialgovernment (1)departments,and fivewere
fromindividuals (2)ornon-governmentalorganisations.
Ofthe 35 countries, 19didnothaveany provision (3)for
administrativedetention.
Ofthe countrieswhichhavelegal provisionsfor administrative
detention,13 have (4)provisionfor itin theirconstitution. In
sevenofthese(5)there arelaws governingadministrativedetentionin
additionto the constitutionalprovision.
(1)Antigua,Argentina,Austria,Belgium, Belize,Botswana,CapeVerde,
Cyprus,Denmark,Federal RepublicofGermany,Fiji,Finland,France,
Gambia, Israel,Liechtenstei Luxembourg,Malaysia,Morocco,Nauru,
Netherlands,Norway,PapuaNewGuinea, Seychelles,Singapore,
Sweden,Thailand,UnitedKingdom,UnitedStcAtes ofAmerica,Western
Samoa..
(2)Colombia,India, Nepal,Portugal,RepublicofKorea.
(3)Antigua,Austria,Belgium,Belize,CapeVerde,Cyprus, Denmark,
FederalRepublicofGermany,Finland,France,Liechtenstein,
Luxembourg,Morocco,Nauru,Netherlands,Norway,Portugal,Sweden,
UnitedStatesofAmerica.
(4)Argentina,Botswana,Colombia,Fiji, Gambia,India,Malaysia,
Nepal, PapuaNewGuinea,Seychelles,Singapore, Thailand,Western
Samoa.
- 395 -
(5)Fiji,Gambia, India,Malaysia,
Nepal, Singapore,
Thailand.
The
Indianconstitution
onlyauthorises
makingoflaws forpreventive
detention.
In threecountries
(6)there is no constit1'tional
provision,
butit is governed
by legislation.
Insevencountries
(7)adeclaration
ofastateofexception
is arrecondition
for implementing
administrative
detention.
In nine
countries
(8), there is noneed for proclamation
of astateofexception.
In15 countries
(9)the constitution
provision
ofthe relevant law
providing
for administrative
dctention
remainsin force indefinitely
unless it is revoked bythe Parliament.
Inonecountry (10) only the
lawdealingwith administrative
detention
has to be reviewedbythe
Parliament
eerysixmonths.
Tothequestion
whetherratification
byParliament
was required
for its introduction,
sixcountries
(11)didnot giveanyspecific
answer, and fivestated (12) that it wasnot necessary.
In another
five countries
(13) Parliament's
ratification
isneedCd inone formor
another.
The mostcommon groundfor preventive
detention
found in twelve
countries
(14), was athreatto publicsecurityor publicorder, or
terrorism.
Thereplyof twocountries
(15) wasunclear.
In one countr,
(16), itwasstated that the reasons for detention
depended
onthe dis.-
cretion ofthe detaining
authorities.
In another country (17), apart
fromreasons ofsecurity,
detention
was alsoauthorised
for prevention
of smuggling
andconservation
of foreignexchange.
(6)Israel, RepublicofKorea, UnitedKingdom. Ofthis, U.K.does
nothaveawrittenconstitution andpreventivedetention law
applies onlyto Northernireland.
(7)Argentina,
Botswana,
Fiji,Gambia,PapuaNewGuinea, Seychelles,
Western
Samoa.
(8)Colombia,
India, Israel, Malaysia,
Nepal, RepublicofKorea,
Singapore,
Thailand,
United Kingdom.
(9)Argentina,
Botswana,
Colombia,
Fiji,Gambia,India, Israel,
Malaysia,
Nepal,PapuaNewGuinea,Republic
ofKorea,Seychelles,
Singapore,
Thailand,
Western Samoa.
(10)UnitedKingdom.
(11)Fiji,Gambia, Israel, PapuaNewGuinea, Seychelles,
United
Kingdom.
(12)Colombia,
Nepal,Singapore,
Thailand,
WesternSamoa.
(13)Argentina,
Botswana,
India, Malaysia,
Republic
ofKorea.
(14)Argentina,
Colombia,
Fiji,Gambia,Malaysia,
PapuaNewGuinea,
Republic
ofKorea, Seycheiles,
Singapore,
Thailand,
Western
Samoa.
(15)Botswana, Israel.
(16)Nepal.
(17)India.
- 396 -
The authoritiesempowere6 to issueorders for administrative
detentionwece theNational ExecutiveorCouncilofMinistersor an
individualMinister in sixcountries (18), theH!ead ofState in four
countries (19), and the Secretaryof the HomeDepartmentin two
countries (20). In onecountry (21), AreaMilitary Commandershave
powers to authorisedetentionbut with aprovisionthat if thedeten-
tionexceedsone month thenonlyan advisorycommittee is authorised.
Replies of twocountries (22) wereunclearonthispoint.
Three countries (23) had aspecifically appointedcommittee
responsible for issuingdetentionorders. One hasacommittee (24)
consistingofthePrimeMinister,Security Officialsand Officials
of theintelligencedepartment. In another (25), the committeeis
appointedby the Parliament. The thirdcountry (26) hos cSecurity
CustodyCommittee consistingofthe ViceMinisterofJustice and five
membersselected fromamong judges, publicprosecutors, judge advocates
and lawyers. The Ministerorders detentionafter adecision taken
by the Security Custody Committee.
The implementation of the detention orders was generally done
bysecurityofficials, whowere eitherpolice ormilitaryofficers.
On thequestionofadministrativeinstructions relatingto
theexerciseof powersof administrativedetention,onlyone country
(27) referredto any specificinstructions.
Withregard to the notice giventodetainees, 12 countries (28)
stated that they have provisionsforprovidingacopy of the detention
order, noticeof the formal groundsofdetentionandnoticeofthe
facts and circumstances justifying the detention. Twocountries (29)
stated thatonly the formal rirounds ofdetentionare provided. In
twocountries (30) there is noprovisionfor providingnoticeof
detentionto the detainee.
(18)Argentina,Malaysia,Nepal,Republicof Korea,Singapore,
Thailand.
(19)Colombia,Fiji,Gambia,Western Samoa.
(20)India, UnitedKingdom.
(21)Israel.
(22)Botswana,Seychelles.
(23)Israel, PapuaNewGuinea,RepublicofKorea.
(24)Israel.
(25)PapuaNewGuinea.
(26)P,-public of Korea.
(27)Malaysia,whichhas mentionedInternalSecurityAct,
AdvisoryBoard Rules,1976.
(28)Botswana,Colombia,Fiji,India, Israel,Malaysia,
Nepal, PapuaNewGuinea,Singapore,Thailand,United
Kingdom,WesternSamoa.
(29)Gambia, Seychelles.
(30)Argentina,Republicof Korea.
- 397 -
Therewasnoclear cut answer to the questionaboutpersons
responsiblefor preparingthesenotices.
In only one country (31) was thereno procedurefor the detainee
tomakerepresentation
against theorderfor the detention. In two
countries (32) recoursewas to acourt. 12 countries (33) haveeither
acommitteeor atribunal to which thedetaineecanmake representations
andin one country (34) representatiom
could bemadeonly to the
detainingauthorities and not toacommitteeortribunal. Theperiod
duringwhich representations
canbe madebythe detaineeranges from
sevendays to onemonth.
In ninecountries (35) the detainees are informeduponarrest
oftheir righttomake representations.
In oneofthesecountries (36)
the SupremeCourtheld adetention illegalwhenthe detaineewasnot
informedofhis right tomakerepresentations.
Threecountries (37)
have statedthat theyhave noprocedurefor representations
bythe
detainee. Thereplies offourcountries (38) on thispointwerenot
clear.
On the right toalawyerand relatedquestions, ten countries
(39) statedthat the detaineehas arightto onsultalawyer immediately.
In two countries (40)thedetai.iee can seek alawyeronlyat the time
of his represt-itiation
to the tribunal. Two countries (41)statedthat
thedetainee is entitledto consultalawyeronlyif he is charged
withanoffence. Twocountries (42)didnot replyto thisquestion.
(31)Thailand.
(32)Colombia,Seychelles.
(33)Argentina,Botswana,Fiji,Gambia,India, Israel,
Malaysia,PapuaNewGuinea,RepublicofKorea, Singapore,
UnitedKingdom,WesternSamoa.
(34)Nepal.
(35)Fiji, Gambia,India, Israel,Malaysia,Papua NewGuinea,
Singapore,United Kingdc-, WesternSamoa.
(36)India.
(37)Argentina,Nepal,Thailand.
(38)Botswana,Colombia,RepublicofKorea,Seychelles.
(39)Argentina,Botswana,Co2ombia,Fiji,India,Israel,Malaysia,
RepublicofKorea,Singapore,UnitedK(ingdom.
)Gambia,PapuaNewGuinea.
(41)Nepal,Thailand.
(42)Seychelles,WesternSamoa.
- 398 -
Free legalassistance toadetaineewhois not able to employa
lawyerexists inonly fourcountries (43). Thereststated that theydo
not haveany suchprovision.
Regardingthe abilityof adetainee toconferwithhis lawyer
in private,ten countries (44) stated that thedetaineecan confer
withinsightbut out of hearing of the security guards. Fourcountries
(45) have answered in the negative.
Regarding the numberof visits that maybe madeby alawyer,
five countries (46) do not impose any limit. Two stated (47) that it
depends on the discretion of the authorities. Onecountry (48)permits
two visits of which the period is not mentioned. The repliesofsix
countries (49) were unclear.
On the question whether a lawyer may be present at interrogation,
all the countries answered in the negative.
Regardingpublic notificationand noticeto relativesand
friends, the answerswere as follows :ten countries (50) haveno pro-
visionforpublishing thedetentionorders in anofficial gazetteorin
the newspapers; in sixcountries (51) the detentionorders mustbe
publishedin theofficial gazettewithinfourteendays. Of thesesix,
onecountry (52) has aprocedurefor publicationat monthlyintervals.
Ofthe countrieswhichhaveprovisionforpublishingthe detentionorders
in the gazette,onlytwo have stated (53) thatnames ofpersonsdetained
and the plj..-e of detentionwill be published. Onlyone country (54) out
of the sixteen had provisions for publishing the namsof persons released.
On thequestion ofpublishing the nameof thedetainee, one country (55)
had commented that itmay be objectedto bythe detaineeas infringing
hisprivacy. This is n)t avery convincingreason inviewof the dangers
(43) Colonbia,Fiji, India,United Kingdom.
(44)Argentina,Colombia,Fiji,Gambia, India, Israel,Malaysia,
Papua NewGuinea,Singapore,UnitedKingdom.
(45)Botswana,Nepal,RepublicofKorea,Thailand.
(46)Fiji,Gambia, Israel, Singapore,UnitedKingdom.
(47) India, Thailand.
(48)Malaysia.
(49)Argentina,Botswana,Colombia,Nepal,PapuaNewGuinea,Republic
of Korea.
(50)Colombia, India,Israel,Malaysia,Nepal, RepublicofKorea,
Singapore,Thailand,UnitedKingdom,WesternSamoa.
(51) Argentina,Botswana,Fiji, Gambia,Papua NewGuinea,Seychelles.
(52) PapuaNewGuinea.
(53)Argentina,PapuaNewGuinea.
(54)Argentina.
(55)UnitedKingdom.
- 399 -
involved insecret detention. Only five countries (56) stated that
they have provision for informing relatives or friends of the detention.
One of these (57) stated that the notification may be delayed for
security reasons. In all these five countries, notification includes
tile place of detention. Only one country (58) specified the period
(seven days) within which the relativs should be infor-med. No country
stated that transfer to another place of detention was notified to
families or friends.
To the questrion on guidelines or administr ative instructions
regarding interrogation procedures, four countries (59)did notprovide
any answer. Seven countries (66) stated that they do not have any
guidelines. One country (61) stated that administrative detainees are
not subjected to interrogation.
Another (62) referred to the 'Judges
Rules' (which relate to the circumstances in which a confession is
admissible before a of Of the three
court law).
countries which have
guidelines, one country (63) did not provide any details, the other two
stated (64) that they are official secrets.
The absence of guidelines in some countries and the uninformative
answers provided by others are disturbing in view of the well-known
relationship between ill-treatment of detainees ind interrogation pro-
cedures.
Judicial review of detention is stated to be available in
allbut three (65) of the countries,byway eitherofhabeas corpus
or amparo. In only three countries (66)can thecourtsenquire into
the alleged facts and circumstancesconstituting the grounds for
detention. In the restof the countries, the courtscanenquireonly
intoprocedural irregularities.
(56) Cokmbia,Fiji, Israel,Papua NewGuinea,UnitedKingdom.
(57) Israel.
(58)PapuaNewGuinea.
(59)Argentina, Botswana,Papua NewGuinea,WesternSamoa.
(60)Fiji, Gambia, India,Israel,Malaysia,Republicof Korea,
Seychelles.
(61)Colombia.
(62)United Kingdom.
(63) Singapore.
(64) Nepal,Thailand.
(65)Malaysia,Nepal,Thailand.
(66)Fiji,Gambia,UnitedKingdom.
- 400 -
As to parliamentary control over the operationof.,i1i:;t cI-
tivedetention, in six countries (67) there is no such control. In four
countries (68) there is indirect control, in tht"-lcmbers; of Parliament
can raise questions on det,entions. It thrkee coustri ;(69) , the
administrative detention Act ha; to ho periodicko[lv>: e:.:t by o the
Parliament. In another eon-i[t ry (7o) , Parli,:ncnt rview! the !;tateof
exception unider which the idminic t.itivo Icteltion:; Ire ma,1.2. (51ly one
country (71) tte tht Ihe Plf-ll ,re w ease thee ais e; -"ecause
is thiI; country a oR1n i'*!"A' :; t in, II t iemlorl ,)fthe : IIment is
,IItlori ed to i;sue It .- lit ti :iu;.
r,'0; Lv .i.i:or" % ' c
lo]ur outS.; (73) riv. a :h;
ri LoIt (72) ,a re.'iv.i; I()rl" tribunal,
it. ri;o. , 2uir (74),
A IAtrd is ,ppoirit(c it th. ', r ,tt. ,. 5: ,t: .,!i Iasd ,,r;;
Ott),' attft that !,.,rioI .hc:; the, lard t,.'! cs.t h, Iet lJ 1s.n
: a
,intot.her
stust.-y (75) t i, b'rret ,ri: : ;' t]',,iS! : l. vi; t'' the rw; tivJ.;w.;
on~il,;,th t~s:,t;0 wi;:hill 11_1rt,,,(n ,Ih yw]a''.r
,1!ii t'.: ::ix 1111 ,'i.o- 111~
+ '.torti,,n.1 d','!; ,.,:
7
'
t.lh: n.]
Il f i~'.' <'ountr i,; (7,,) thie t itasi a a 1st 5 0 c;>1 1;
qual,1ifiud to IJO ilie :he ii.;h !I- 'ose hi'v.cthle
?'hief Just is'. ir t,,:r ,ut:trie:; (77) 1, ":ii 0t a .t. eI;,
y
b, rri ters or II citr;. Ii In %:;y -outtry (7H) ii; it hleddor by a
jiidqe-
IIIfive ountrie!n (79) the itetias h-; to be reviewed
initially by the triinrll within Irtont:A). Is three countrios (80) it
is within three, monthe;. In Ose country (il) it is withiin six months
Ind another country (82) (lidn tSstate any period.
(67) Col,,mbia , M>alyiysii, Nop .l,Reublic of Korea, Seychelles,
Thailand.
(63) Fiji, India, Israel, Sinqapore. In India, theAct is passedby
the legislature so there may be some control.
(69) Btsiwana, Jambia, United Kingdom.
(70) Argentina.
(73) Papua New';uinea.
(72)Botswana,Fiji, Gambia, India, Israel,Malaysia,Papua New
Guinea, Seychelles,Singapore, WesternSamoa.
(73)Argentina,ColameLia, Republicof"Zorea,Thailand.
(74)Nepal.
(75)United Kingdom.
(76)Indji, Malaysia,PapuaNewGuinea,Singapore, WesternScrmoa.
(77)Botswana,Fiji, Gambia,Seychelles.
(78)Israel.
(79)Botswana,Fiji,Gambia, Papua NewGuinea,Seychelles.
(80)India, Singapore,WesternSamoa.
(81)Israel.
(82)Malaysia.
- 4Ol -
In fivecountries (83)the conclusionsof the first revieware
reconsideredby the tribunalat six monthlyintervals.
In all the countries which have a tribunal, the detainee is
entitledto make oral orwrittenrepresentationsand to be represented
by a lawyer.
In two countries (84) the tribunal or the advisory body makes
its own rules. No clear answer on this question was provided by the
othercountries.
On the procedures regarding detention and conditions of detention,
the answers nay be summarised as follows :
All countries stated that the police was tile agency .mpowered
to arrest admii.stzative detainees, and in all countries there is
provision for maintainingarecordof the detainee'sarrest and
detention. In only three countries (85) are detention orders made
before arrest. One country (86) stated that if there is no detention
order, an arrested person cannot be held for more than 72 hours.
Anothercountry (87) stated that.detention orders are madebefore or
after arrest,varying from case to case.
In seven countries (88) an arrested person is initially held in
anordinary police :ration and later in aspecial campormilitary
camp or any place decided by the authorities.
Sevencountries (89)stated thatthere is noprovisionfor
producingtile detaineebefore amagistrate or a judicial officer te
establishthe legalvalidityof the detention.
All the countries exceptone (90) stated that thedetainee is
examinedby adoctorand recordsarekept. Medicalattention i usually
givenwhenthedetainee is admittedto the prisonorotherplaceof
detentionand the repliesdo not indicate the exact timeafterarrest
aithinwhichthedoctor'sexamination takesplace.
(83) Botswana,Fiji,PapuaNewGuinea,Singapore,UnitedKingdom.
(84) India,UnitedKingdom.
(85)India, Israel,Nepal.
(86)UnitedKingdom.
(87) Argentina.
(88)Argentina,Gambia,Malaysia,Nepal,RepublicofKorea,
Singapore,Thailand.
(89)Argentina, India, Israel,Malaysia,Nepal, Singapore,
Thailand.
(90)Thailand.
- 402 -
rn most of the countries, transferof the detainee from one
place to another is done under the authority of the Minister.
In three countries (91) the normil prison ordinance is not
applicable to de-tainees.
Six countries (92) have said that the Minister can modify the
rules for detainees as to nature of cunflner1Iltt., correspondence, etc.
All the cwuntries stated that they permit regular visits by
the Jetainee's lawyer, family or friends. The frquency of such visits
W.: not mentioned.
Si5ilatl y, tll the countries stated that writing materials,
newspapers anrd ixoks Ire avai lable to det~inees, thcy are allowed to
receive pncki ps on.t iininq re idin materil , periodical medical
checks irf- m.de and recurAs; of them maintained, and othier medical
treatment is tlso ava.ilable on request.
I:n only three countries (93) i'; there no provision for solitary
Soft1nemnee:;t of detainee,;. in six countries (94) solitary confinement
is qiven for prison of erces. No detiiils of rules qoverning solitary
confinement have been qivon iV the replies, save tNat in three countr.es
(95) the maximumnumberof days for solitary confinement is 90 days,
in Asother (96: , 30 days, in one country (97), three days, and in
mother (98) , o ly 48 hours.
In seven countr.as (99) there is provision for magistratesor
qualified inspectors to inspect the place of administrativedetention
and for such persons to be able to interviewthe detainees.
In six countries (lOG) the InternationalCommitteeof the Red
C.oss has been permittedto conductperiodic inspections.
(91)Malaysia,Singapore,Thailand.
(92) India, Israel, Malaysia, Nepal, Singapore, Thailand.
(93) India, Singapore, United Kingdom.
(94) Argentina,Fiji, Gambia, Israel, Malaysia,Thailand.
(95) Fiji, Y-alaysia, Thailand.
(96) Argentina.
(97) Gambia.
(98) Israel.
(99)Fiji, Gambia, India, Malaysia,RepublicofKorea,
Singapore, United Kingdom.
(l0O)Argentina,Israel,Malaysia,Singapore,Thailand, UnitedKingdom.
- 403 -
APPENDIX
QUESTIONNAIRE
ONSTATESOFEXCEPTION
1. Declarations
ofStatesof Exception
1.1. Does your Coniststitution
and/or legislation
provide for any
states of exception,
such as state of emergency,
state of
sieqe, state of martial law, state of internal war, etc. ?
(Please 5slpi .copie,1 of -eevant documents).
1.2. Is there a definit ion of the condit ions or circumstances
which
constitute
such ,i state of except ion ?
1.3. Itsuch states o)f exception are re0oori sed, please describe
the procedure by which they are declrel, including the role
of the court: and eqisl, tur,-, if any.
1.4. Is there an,. restriction
on the duration of a state of
tion ?
2. Effects
2.1. What ave
(a) the
(b)the
(c)the
excep-
If so, what is the procedure for renewal ?
of States of Excen :ion
the effects of
noirers of the
powers of the
powers; of thio
review leqislation
states of exception
executive ?
legislature
?
judiciary,
including
and decrees and the
the legality of .rrests and detentions
amparo, etc.) .
2.2. Is there an: wa,' the citizen can challenge
state
on
the power to
power to determine
(habeas corpus,
t!- " validity of a
of except ion, ,on. if so, by what proc:are
?
2.3. What fundamental
rights, if any, may not be derogated from
even durin; a state of exception
?
2.4. What procedures
are available to enforce such fundamental
rights durinq astate of exception ?
3. Past/Present
Stites of Exception
3.1. Is there aystate of exception in force at present ?
3.2. Have any other states of exception been in effect in your
country since 196, ?
3.3. In relation to any such state of exception
(a) what were the ,aces of declaration,
renewal and
expiration
?
(b)what circumstances
were invoked in explanation
of such
statesof exception? (P.easeprovidetextsofofficial
statements if relevant).
- 404 -
(c) what measures were taken pursuant to such statesof
exception ?
(d) did any court examine the validity of the declaration of
exception, or any of the measures takern pursuant to it ?
If so, what were the findings ? (Conies of or references
to important judicial decisions would be greatly appreciated).
(e)was notice of dero;ation given to ant, international or
toegional orqanisation, as envisagcd b., for example, article
4(3) of the International Covenant on Civil and Political
Rights or article 15(3) of the 2uropean Convention on Human
Rights ?
3.4. During an'y such otate of excepticn, were any provision- of the
Constitutio amended ? If so, by what procedure ? (Texts of
the amendmentn arid an.' official ex,lanatory memoranda would be
appreciated).
4. Suspension or 7Abrogation of the Constitution
4.1. Does your ci;rtry have a written Constitution ?
4.2. If so, what human rights n(! fundamerintal freedoms does it
qua;antee ? (If . copj of rhe Constitution is supplied, it will
suffice to irdicate the articles).
4.3. Ha- there been at an. time osince 1960 1 suspension in whole or in
part of the Constitution ? Alternatively, has there been in this
period any substantial increase it the powers of the executive or
suspension of the powers of the national leqislature, regional
government or the courts, other than under a declaratiun of exception?
4.4. If so :
(a)what were the dates of such occurrences ?
(b)what were their effects ?
(c)what circumstances were invoked in explanation ofsuch
occurrences ?
(d)were they -iuthorired by the previous law ? (If so, please cite
the authority).
(e)have the conurts examined the validity of these occurrences,
and if so, what were the findings of the court ? (Copies of
or references to important judicial decisions would be
qreatlyappreciated).
(f) have. these occurrernces been submitted to a representative
body or popular refererndum for approval, and if so, with
whatresult ?
4.5. In relation to any suspenstor or abroqation of the Constitution
(a) what civil and political rights have beenrestricted?
(b) what legalprocedures remain availablefor the enforcement
of such rights as continue ?
- 405 -
QUESTIONNAIRE
ONADMINISTRATIVE
DETENTION
1. Constitution
and the Lawor Decree
2. Operation
ofthe Lawor Decree
3. NoticetoDetainee
4. RighttoaLawyer
5. PublicNotice
6. Notice toRelatives
orFriends
7. Interrogation
8. Judicial
Review
9. ReviewCommittee
or Tribunal
10. Parliamentary
Control
11. Procedures
Regarding
Detention
12. Conditions
ofDetention
Definition
For thepurposes
ofthis questionnaire,
administrative
detention
meansthe deprivation
of aperson'sliberty,
whetherbyorder
oftheHead of State orofanyexecutive
authority,
civil ormilitary,
for thepurposes
ofsafeguarding
national
security
orpublic order,
orother similarpurposes,
withoutthatpersonbeingchargedorbrought
totrial.
1. Constitution
and theLaw orDecree
1.1. Does the Constitution
and/orlegislation
containprovisions
whichpermitorprohibit
administrative
detention
? (Please
supplycopiesofrelevantdocument(s)
).
1.2. If theConstitution
and/or legislation
permits administrative
detention,
is adeclaraticn
ofastateof exception
orsome
legal stepneeded before itcanbe implemented
?
1.3. Is there atpresent in forcealawordecreewhichauthorises
administratix
detention
? Ifso,is itoflimitedduration
?
(Pleasesupplycopyoflawordecree, reference
anddateof
enactment).
1.4. If bydecree, does itrequire ratification
byParliament
? Is
there arequirement
of Parliamentary
consent forrenewalor
extension
ofthe decree?
1.5. Haveany othermeasuresbeenin force since 1960authorising
administrative
detention
? Whenandunderwhatcircumstances
wasitintroduced,
andwhenardunderwhatcircumstances
was
itrevoked?
2. Operation
oftheLaworDecree
2.1. Onwhatgroundsmay apersonbe administratively
detained
?
(Unlessthis information
alreadysupplied).
- 406 -
2.2. Whois authorised to issueorders for administrativedetention?
Onwhose recommendationdoeshe act ?
2.3. If by acommittee,whichgovernmentdepartmentsare represented
onthe committee?
2.4. Who isresponsible for implementingthedetentionorder ?
2.5. Are thereany administrativeinstructionsrelatingtothe
exerciseofpowersofadministrativedetention? (Pleasesupply
copiesof relevantdocuments ifpossible).
3. NoticetoDetainee
3.1. Is the detainedpersonentitledtoreceive
(a)acopy of thedetentionorder ?
(b)noticeof theformalgrounds ofdetention?
(c)noticeof thefacts andcircumstances justifyingthe
detentionorder ?
If so,withinwhatperiod followingarrest?
3.2. Whopreparesthese notices?
3.3. Is thedetainee entitledto makerepresentations? If so,to
whomand withinwhatperiod followinginitialdetention? If
to atribunal, what is its composition?
3.4. Is the detaineeinformed of this right,and if so,when ?
4. RighttoaLawyer
4.1. Atwhatstageand howsoonafterarrestor afterthe detention
order mayadetainee consultalawyer?
4.2. If he hasno lawyer,what (ifany) steps aretaken to furnish
him withone?
4.3. Are the detaineeand his lawyerpermittedto confer inprivate ?
(i.e., not withinhearing,director indirect,ofpolice,
securityguards orinstitutionalofficials).
4.4. Whatis the limit, ifany, onthe number anddurationofvisits
by thelawyer?
4.5. May the detainee'slawyerbepresentat interrogations?
5. PublicNotice
5.1. Is theissue of detentionorderspublishedin anofficialgazette
and/ornewspaper ofgeneralcirculation? Withinwhatperiod
followingthe issueof theorder?
- 407 -
5.2. Areparticulars,
suchas namesofpersons,grounds fordetention,
date, circumstances,
place,durationordetention,included in
this notice? (Pleasespecify).
5.3. Are the namesofpersonswho arereleasedfromdetention
published ?
6. Notice to RelativesorFriends
6.1. Isthere arequirement
thatarelativeorclosefriendbe
notified ifapersonisdetained ? Doesthe detaineeselect
theperson to benotified? Where are these requirements
set
forth ?
6.2. Does thenotification
includeinformation
aboutwhere the
detaineeisheld?
6.3. Isthere any, and ifsowhat,periodwithinwhichthe relative
or friendmustbenotified ?
6.4. Intheeventofthe transferofthedetainee fromoneplace
ofdetentiontoanother, ishis family notified? Withinwhat
periodfollowingthe transfer ?
7. Interrogation
7.1. Are thereany guidelines oradministrative
instructions
regardinginterrogation
procedures ? (Pleasesupplycopies
ifpossible).
7.2. Whatinspection orotherproceduresare enforcedtoprotect
thedetainee againstill-treatment
duringinterrogation
?
7.3. Arerecords maintainedofthe :
(a)dateand durationofthe interrogation
sessions ?
(b)names ofinterrogators
present?
(c)names ofthe guardspresentduringinterrogations
?
8. JudicialReview
8.1. Bywhatprocedure (ifany)canadetaineeorhisrepresentative
challengethevalidityofhis detentionbeforean ordinary
court ?
8.2. Isthe courtable toenquire intothe allegedfacts and
circumstances
constituting
thegrounds for thedetention?
8.2. Are thereavailableany decisionsofcourtsrelatingto the
exerciseofpowers ofadministrative
detention ? (Ifso,
pleasesupply, ifpossible,copiesofthe decisionsorsummaries,
orcasereferences).
- 408-
9. ReviewCommitteeorTribunal
9.1. Isthe detaineeentitledto havethe detentionorderreviewed
by atribunal or committee? (Ifso,please supplycopy of
legislation- if any- establishingthis right).
9.2. Whatisthe compositionof the tribunal or committeewhich
reviews thedetentionorder,and bywhomare they appointed?
Isitapermanentbodyorappointedfor the specificcase ?
9.3. Howmuchtime elapsesfromthedateofinitial detentionuntil
the committee ortribunalreviews the order ?
9.4. Isthe detaineeentitled :
(a)tomakerepresentations,oral and/orwritten (andif so
which)to the reviewtribunalorcommittee ?
(b)to berepresented byalawyerbeforethe tribunal or
committee ?
9.5. Does the committeeortribunal determineits own rules ? If
not,whomakes them?
9.6. Isthe functionof the committeeor tribunaladvisoryonly?
Ifthe committeehas additionalpowers,pleaseexplain. Towhom
does itreportormakerecommendations?
9.7. Inhowmanycaseswithin the last fiveyears
(a)has thereviewtribunal orcommittee recommendedthe
releaseofadetainee ?
(b)hasadetaineebeenreleased followingsucharecommendation?
9.8. After whatinterval (if any)isthedetaineeentitledtoa
reconsiderationofhiscase bythe tribunalor the committee ?
9.9. Arethe reportsofthe committeeor tribunalmadepublicand,
ifso,how?
9.10. Isthere aprocedurebywhich thedetainee canchallenge the
proceedingsof the reviewcommitteeor tribunal inanordinary
court? (Pleasedesribe).
10. ParliamentaryControl
10.1. What (if any)parliamentarycontrolis thereofthe operation
ofadministrativedetention?
11. ProceduresRegardingDetention
11.1. Whichagenciesareempowered to arrestadministrativedetainees ?
Isarecord ofadetainee'sarrestand detentionmaintainedby
the agency?
11.2. Are detentionordersmadebeforeorafterarrest? Ifafter,
withinwhatperiodafterarrest?
- 409 -
11.3. Is an arrestedpersoninitiallydetainedin
(a) anordinarypolicestation ?
(b) anordinaryprison?
(c) amilitary anit ?
(d) someother,andif sowhat,premises?
11.4. Is thedetainee later transferred
to another and,ifso,
whatplace for interroqation
andunder whosecontrol ?
11.5. In whatplace,and under whosecontrol, is thedetainee
heldfor the remainderofhis detention; in
(a) anordinaryprison ?
(b) aspecial campor otherplace ofdetention?
If so, underwhosecontrol ?
11.6. Is thedetaineebroughtbefore amagistrateorother
judicialofficer toestablish the legal validityofthe
detention ? If so, withinwhatperiodoftime followingthe
arrest?
11.7. Is the detaineeexaminedbyadoctor ? If so,at what
stageand withinwhatperiodfollowingthe arrest? Is a
recordof thedetainee'sphysical andmentalconditionmade
and signed bythe doctor?
11.8. By whoseauthoritycan anadministrative
detaineebe
transferred fromoneplaceofdetentionto another?
.12. ConditionsofDetention
12.1. Is theprisonordinanceapplicable toconvictedprisoners
alsoapplicable todetainees? If not,whatrules or
regulations
governthe conditionsofdetention?
12.2. May the Ministerorprisonofficialsmodify therules for
detaineesas to natureofconfinement,
correspondence,
visitors,
etc. ? If so,pleasedescribe the conmnon modifications
for
detainees.
12.3. Is the detaineepermittedregularvisits from
(a)hislawyer?
(b)hisfamily and friends?
If so, howfrequently?
12.4. Whichofthe followingis available tothedetainee?
(a) writingmaterials
(b) newspapers andperiodicals
(c) books
(d) radio
andatwhatstage and afterwhatperiodfollowinghisarrest?
- 410 -
12.5. Maythedetainee receivepackages
containing
reading
materials
? Howoften?
12.6. Is medicaltreatment
available
to the detainee
onrequest ?
Arerecordskeptofrequests
formedical treatment
?
12.7. Is aperiodicmedical check-upprovided
? Arerecordsof
medicalchecksmaintained
?
12.8. Whatrules (ifany)governthe solitaryconfinement
of
administrative
detainees
?
12.9. Is there alimitto the time forwhich anadministrative
detaineemay be held in solitaryconfinement
?
12.10. Areplacesof
administrative
detention
inspected
bymagistrates
orqualified
inspectors
? If so,bywhom,and atwhat intervals
?
12.11. Are thesepersonsallowed tointerview
detainees,
and ifso,
do theyinterview
them alone ?
12.12. To whomdo theinspectors
submit theirfindings
?
12.13. Are periodicinspections
bythe International
Committee
of
theRed Cross (ICRC)permitted
?
- 411 -
OBSERVATIONSANDCONCLUSIONS
CONTENTS
Page
I. GENERALOBSERVATIONSANDCONCLUSIONS.................. 413
II. THEEFFECTS OFSTATESOF EMERGENCYON
ECONOMIC, SOCIAL,CULTURALANDPOLITICALRIGHTS ..... 417
TradeUnion Rights......................................
417
Freedomof Expression,Freedomof Informatio,
TheRight toEducationandCulturalRights ........... 419
Political Rights and Self-Determination............... 420
The Right to Development ...............................
422
III. THE RIGHTTODUE PROCESSANDTHE RIGHTS OF
DETAINEDOR IMPRISONEDPERSONS......................... 424
DueProcess .........................................
424
The Rightsof PersonsSubjectto any formof
DetentionofImprisonment...........................
429
IV. SAFEGUARDS IN DOMESTIC LAWAGAINST ABUSE OF
EMERCENCYPOWERS ....................................
432
Constitutional Safeguards.............................. 432
TheJudiciary .......................................
434
The Legislatureand Other Institutional
Safeguards...............................................
437
Other Limitations onEmergenoyPowers................. 438
V. SAFEGUARDS IN INTERNATIONALLAWAGAINSTABUSEOF
STATESOF EMERGENCY ..... ............................ 439
International Norms ConcerningStates
ofEmergency............................................
439
Modalitiesof InternationalControl.................... 441
SuccessfulAttemptsat InternationalControl : 442
Colombia .........................................
442
Uruguay ..........................................
445
Argentina ........................................
447
Greece...........................................
451
NorthernIreland.....................................
452
FailuresofInternationalControl...................... 453
VI. SUMMARYOFRECOMMENDATIONS............................. 459
-0-0-0-0-
- 413-
I. GENERALOBSZRVATIONSANDCONCLUSIONS
Statesof emergencyare encounteredwith surprisingfrequency
throughoutthe world. Thechaptersonstatesofemergency in India,
MalaysiaandThailandmighthave beenfollowedby chaptersonstatesof
emergency in Bangladesh,Pakistan,ThePhilippines,Singapore, South
Korea,Sri Lankaand Taiwan. In Africa,states ofemergencyhavebeen
reported recentlyin Kenya, Liberia,Madagascar, Namibia,Sierra Leone,
Somalia,The Sudan, Zambia,Zimbabweand partsofSouth Africa, in
addition toGhanaandZai::e; in the MiddleEast inEgypt, Israel, Iran,
Jordan,OmanandNorth Yemen, as well as Syria. Thefrequentrecourse
to statesofemergencyin LatinAmericais well-known, to the pointwhere
it issometimesmistakenly thoughtof as apeculiarly LatinAmerican
problem (1). The chapteron EasternEurope makesaspecialcontribution
to the literatureonthissubject,beingthe firstpublished summary of
contemporary lawand experienceand historical rootsofemergencypowers
in this region,which until recentlyhad oftenbeenthoughtof as some-
howexemptfrom thisphenomenon.
In short, the problemis of global importance. One study,pub-
lishedin 1978,stated that at that timeat least30of the150 states
whichcompose the community ofnationswereunder astateoferergency
(2). It is probablynoexaggerationto saythat at anygiven time in
recenthistoryaconsiderablepartofhumanity has beenlivingunder a
stateofemergency.
The authorofthe chapter onTurkeyhas madeavaluable con-
tributionto this subjectindistinguishingbetweenstatesofexception
and r6gimes ofexceptionononehand, andbetween "transiticnalregimes
ofexceptionwithdemocraticgoan" and "transitional r6gimes of
exceptionwithauthoritariangoals"on the other (3).
Statesof exceptionare definedas "extraordinarymodes of
governingprovidedfor by the laws ofthe countryand subjectto such
laws for their declarationand implementation",
whileregimes ofexcep-
tionare definedas "de facto situationsof apurelypolitical nature",
thatis, declarationsofastateofexceptionaccompanyinq "interventions
(ingovernment)whichcannothe justified in terms of the constitution
orpreviouslyestablished laws" (4).
Thesedefinitionsdrawattentionto anotheraspectofthe
problemwhich is sometimesoverlooked :recoursetoastateofemergency
corresponds to acertainrespectfor legalism,or at least thedesire
todemonstrate such respect.
On the onehand, asituationnot dissimilar to astateof
emergencyin terms ofthe extentto whichhuman rightsare restricted
may existwherethe governmentsimply assumes therepressivepowers it
considersnecessarl withoutregardfor legalorconstitutional formalities.
Thesesituationsmay be describedas defactostates ofemergency (5).
Onthe otherhand, astateof emergencyneed notentail gross
orexcessiveviolationsofhumanrights. The state ofemergencyis
tne counterpart in international lawofself-defence inpenallaw.
Thatit maybe necessaryto suspend respect for certainhumanrights in
order topreventthe nation fromfallingintochaos is universally
admitted. However, the veryconcept ofnecessity,whenrespected,pre-
ventq excessiveinfringements ofrights,justas thecodification,in
- 414 -
accordance withtheprincipleofnecessityandproportionality,of
alistofnen-derogablerights servesto preventgrossviolations
ofhumanrights. The problem,then,is to preventabuseofstates
ofemergency, and the formaldeclaration ofan emergencyis astep
in thisdirection.
Aseconddistinction,betweenr6gimesof transitionhaving
democraticgoals andr6gimesoftransitionhavingauthoritariangoals,
isespeciallyimportant, for itdraws attentiontoafundamental
principleset forth in thepenultimatearticle of the Universal
DeclarationofHumanRights, theprinciple thatall restrictions on
human rights, includingemergencymeasures,mustbe compatiblewith
the requirementsofademocraticsociety. Closely relatedis the
principlethat nothinginthetextmay be usedbyastatetoinfer
"therightto engage inany activityor toperformany act aimed at
the destructionof anyofthe rights and freedoms" setforth in the
declaration (6).
Without theseprinciplesand this distinction,determining
the legitimacyof astateofemergencywould remainanear-arithmetical
comparison ofthe threat to the publicorderon theone handand the
repressive capacityof the lawenforcementagenciesonthe other. These
principlesmove the issueoflegitimacy toanother levelby permitting
the quection "whatis thepublicorderwhichis beingdefended ?"
In the Greekcase, the EuropeanCommission onHumanRights
addressed the questionwhetherpublicdisturbancesafter themilitary
coupjustified the suspensionofhumanrights (7). Thishints at amuch
larger question :if theright to rebellionexists, in internationalor
nationallaw, wouldit notbeanomalous,insituations where theright
obtains, for the lawofhuman rights toconcedeto astate therightto
takeexceptional measures- that is to denycertainhumanrights- in
order todefeat alegitimate rebellion? Thesolutionof thisproblem
is facilitatedby recognisingthat theproblemofrebellion is addressed
on threedifferentlevels by threedistinctbranchesof international
law. Thequestionof themethods employedby bnth sides is the
particularcompetence ofhumanitarian law,whichaddressesthe legitimacy
of the modalitiesof the strugglebut not thelegitimacy ofthe struggle
itself nor the legitimacyof theparties. The legitimacy ofthestruggle
itself and the rightof the governmentand liberationmovementto inter-
nationalrecognitionare politicalquestionsaddressedboth by the
politicalorgansof internationalorganisationsand bilaterallybetween
the partiesconcernedandother states. The legitimacyof astate's
recourseto exceptionalmeasures todefend its existenceis adistinct
questionwithinthecompetenceof humanrightsbodies. Ahuman rights
body is notcompetentto findthat rebellionin agivensituationis
legitimateor that agovernment, byreason cfits humanrightspolicies,
is legitimate. It can,however, findthat byadoptingthepurposeof
establishinganundemocratic stateor of eliminatingcertainrightsit
has forfeitedits right to self-defence,ormoreprecisely, itcannot
claimjustificationfor its actionsunder the lawof humanrights.
Note thatthe constituionalityofar6gime is immaterialin theinter-
national law ofhumanrights; whether ther6gime tends torestore a
democratic systemofgovernmentor toeliminatedemocracyorcertain
rights is, incontrast,eminentlyimportantin the international lawof
humanrights.
- 415 -
In theGreekcase, thedecisionof theEuropeanCommissiondid
notrestonthesegrounds. The Commissionexpresslyrejected,however,
the government'sargument that itssuspension ofhumanrightswasso
linked to thesovereigndecision tooverthrowacertain formofgovern-
ment ('createarevolution') that it was necessarilybeyond the com-
petenceof the Commission. NotonlydidtheCommission rejectthe
argument, itevaluated the claimofaright toderogateand found that
the rightdidnot obtain (8).
This leads to anotherpoint, thedisturbing tendencyobserved
inmanyoftheprecedingchaptersforastate ofemergencyto become
perpetualor toeffect far-reachingauthoritarian changesin the
ordinarylegalnorms. In thechapteronZaire, the author states that
after an earlyperiodwhenemergencies wered~claredin response to
genuine national crises, formalemergencymeasureswereabandonedbut
othermethodsofcontroldevelopedto thepoint that "onemaywithout
hesitationspeak of anabsolute monarchyin which the ruler'swill is
practically without limits" (9). Syriahas beea under acontinuous
series ofemergenciessince the endofOttomar rule in 1920. As wa
notedin thatchapter,theMartial LawDecree of 1962,still in effect,
"in asensemay be consideredthebasic lawofthe country,notonly
becauseitsprovisionsoverride thoseof the constitution, but alsoin
that it has beenaconstant inaperiod vhen the countryhas knowna
successionof constitutions" (10). InM:laysia, therewas first a
drastic weakeningofconstitutional
safeguardsonemergency powers;
secondly, four declarationsofemergencyduringtha last 18 years,none
ofwhichhas been revoked;(Rdthirdly, aseriesofordinarylaws per-
mittingprolongeddetention, imposingdrasticsentences forsecurity
offences,restricting freedomof movement,freedomof associationand
expression,tradeunion rights, due processrights cndpolitical
rights. In Uruguay, afterabrief periodofrelianceonemergency
measuresprovided for in the constitution,an"institutionalisation"
(12) of the stat- of emergency began wiLh Lt.c csiidiish,,iiet, L; -:holly
unconstitutional
processes,ofnewlegal normswhichrestrictedhuman
rightsand increasedthepowersofthe executiveto anextentfar
greater thanunder the constitutionalstateof emergency (13).
Various explanations for thisphenomenonhavebeenoffered.
Theauthorofthe chapteronUruguayobserves that"peoplehave become
accustomedtotheemergency r6gime to the pointthat ithas become the
normalmachineryof government" (14).
Several authors havealsonoted that,wherethe state of
emergencywas imposedduringsocialunrestresultingfromgrave
deteriorationoftheeconomic situation,the governments'decision to
treat thesymptomswithout treatingthe disease tends to perpetuate
the crisis (15). As is stated inthe chapteronPeru :
"It is theacute social conflicts thatarise andwill
inevitablycontinue to arise in societies foundedon
deep-seateddisparities thatare at the rootofvarious
situationsofexception ...
Thecivilormilitarygroupswhichrule inthistype
of societyhave atendency touse statesofexception
as ameansofperpetuatingsituations thatare
inherentlyvolatileand explosive." (16)
- 416 -
In somecases,as in Thailand, excessiveuse of emergency
powersmay beexplained inpartby the persistanceofancientab-
solutistmoralvaluesand politicalhabits (17). In otlers, as
several authorshave indicated, it isdue to the emergenceof a
modernauthoritarianpoliticaldoctrine, thedoctrineofnational
security (18). Thisdoctrine,whose effects canbe seen in the
chapters on Greece, Turkey arid the four Loitin American countries,
canbe summarisedinthe followingtermt- (19) :
1.The world is di-rided into ,ocs, the East and West,
whosevaluef, int.. . re .econcilably
opposed.
2.The conflict between tlem i; riot only military, but
also "a struggle igrinst the ideolog,, culture and
traditions of the a.dversary" (20).
3.The conflictoccursnot only internationallybut also
intranationally.
4.The duty of the military authorities to defend the
nationthereforcextends to thecombat againstany
quasi-military, ideological,cultural or other
manifestationsof this enemywithin the country,making
whatever sacrifices in the rightsofcitizens or
alterations in the structureof governmentthismay
require.
Lestthis seemexuggerated, thechapter onArgentinacontains
anumberof quotations remindingus howseriouslythe ideaof internal
warhas been taken by the military authoritiesofArgentina (21).
Not onlydoes thisdoctrineexplainthe frequentmilitary
coups and suppressionof humanrights,but the concepts of the
internal enemy andof cultural, ideologicalandpsychologicalwarfare
inparticular,alsoexplainthe reluctance to permitareturn to
elections, civiliangovernmentand political and ideologicalpluralism.
The U.N.Special Rapporteur onstatesofemergency refers togovernments
whichhaveexpresslyadapted thepurposeoftransition towardsso-
called 'newformsof democracy', including"gradual", "limited" and
"authoritarian"democracy (22). The concept ofaregimeoftransition
towardsdemocracyrecognises that inextreme situations acertain
lapseoftimemay be necessary to prepare the groundforelected
government. However, apart fromdelay inpermittingareturn to
electedgovernment,whatcharacterises these"newforms ofdemocracy"
is the purposeof confining thepolitical processwithinnarrow
ideologicalparameters, thus limitingparticipationto aselectpart
of the population. This,ofcourse, is incompatiblewith the very
essenceofdemocracy.
Theser6gimes alsoillustratethe close linkbetweenthe two
above-mentioned limitationson st tes ofemergency, that theymustbe
compatiblewith ademocratic societyand not "aimedat the destruction"
ofany humanrights, for in pursuitofthe transitionto anauthoritarian
society and the intranationalcultural and ideologicalwarfare,they
adoptmeasuresand policieshavingthe expresspurposeofdenyingthe
rightof everyperson,withoutdiscrimination, toenjoy freedomof
opinion,of association,andofparticipationinpublicaffairs.
- 417 -
Afinal,generalobservation concerns the frequency withwhich
militarygovernments areresponsible for prolongedstates of emergency
orthe use ofastate ofemergencytoeffectatransitiontowards an
undemocraticsociety. In some cases the militaryinterventionis abrupt,
asinthe 1967 coup inGreece; inUruguayit hasbeenseen howthearmed
forcesprogressively
assumedcontrol of the higherorgansof government;
inColombiaindirectcontroloverthe decisionsofthe electedgovern.
mentwas exercisedbythreatofdirectintervention (23).
It has also beenseenhowabuse ofstatesofemergency is more
frequently duetodisregardfor constitutional
and legalsafeguards
thaninadequacies
in thelaw. Aprogramme for thepreventionof abuse
of statesof emergencies,therefore,cannotbe limited to the searchfor
flawlesslegal formulas. The realpotentialcausesof abusemustbe
confronted.
Therefore,inregions of theworldwhere authoritariangovern-
mentsconstitute
amoresubstantial andimmediatethreatto the nation
thanarmedconflictwithaforeignenemy,governments notalreadyheld
hostageby amilitary 'statewithin thestate' should considerthe
possibilityofeliminating this potentialthreatto democracy,as has
beendonein CostaRica. In nations wherethis is not apresent
possibility,becauseof externalthreats orbecausethearmed forces
alreadyhave the politicalstrength tovetosuch aproposal,the recruit-
ment,training,leadershipandorganisationof thearmed forcesshouldbe
studiedwith aviewtoadoptingpracticalmeasuresto reduce therisk
ofmilitaryintervention.
In the fieldoftraining,forexample, one
essentialstepwould seemtobe toadoptappropriatemeasuresto
inculcateappreciationofconstitutionalism,
democracyand human
rightsand to eliminatetheinfluence ofanti-democratic
doctrines
suchas the doctrineofnational security.
II. EFFECTSOF STATESOFEMERGENCYONECONOMIC,
SOCIAL,CULTURALANDPOLITICALRIGHTS
Some writershaveemphasised the effectsofstatesof
emergency onindividualrights, particularlytheright tobefree
fromarbitrary deprivationoffreedomand theright toafair trial
(24). This tends to createasomewhatfalseimageof statesof
emergency, for one oftheirmost fundamentalcharacteristics
is
precisely thebreadthoftheirimpactonasociety. Theytypically
affecttradeunionrights, freedomof opinion,freedomofexpression,
freedomofassociation,the rightofaccess to informationand ideas,
theright to aneducation, the righttoparticipate inpublicaffairs ...
notonlyindividual rightsbutalsocollective rights and rightsof
peoples,such as the right todevelopmentand therightto self-
determination.
What follows is abriefdescriptionofstatesof
emergency, ortheir abuse,onsome of these rights.
TradeUnionRights
Strikesby organisedlabour,orgeneralstrikesin which
tradeunions typicallyplay aleadingr~le, are notinfrequently
amongthe causesofstatesofemergency. In theprecedingchapters
wehavethe examplesofthe 1961 dockand railworkers'strikeand
the 1978wave ofstrikesinGhana,the 1969public employees'strikes
inUruguay and the 1976strike inthepublichealthcare systemin
- 418-
Colombia (25). However,restrictionson tradeunionrightsare
amongthemostcommonattributes of statesofexceptionevenwhen
suchstrikes arenotamong the statedcauses ofthe emergency.
InArgentina, the state ofemergency resulted in verybroadsus-
pensionof tradeunionrights even thoughterrorismand thealleged
incompetence of the electedgovernmentwere thereasons given for
the 1976militaryintervention.
The preceding chapters showthatrestrictions of trade
union rights takemany forms :the legal dissolutionoftrade unions,
the prohibitionofstrikes, interference with the rightofunion
members to elect the officersof theunion, interference with a
union's rightto affiliatewith international tradeunionorganisations,
and retroactivecriminialisation
oftrade unionactivities. Workers
in certain industriesmay be inducted into the armed forces or par-
ticipationin tradeunionactivitiesmade a ;ecurity offence,with the
result that participationin prohibitedactivity becomes subject to
prosecution in specialcourts, frequently withenhancedpunishments.
Suchactivitymay also be punishedby summary dismissal anddeprivation
of the usual social benefits. In addition,tradeunionactivistsare
oftensingled out asone of the firstcategoriesofpersonsto be sub-
jectedto administrativedetentionduringastate of emergency.
The resultof thesemeasuresis thatalargepart of the
populationmaybe effectivelydenied theright todefend its economic
interest, as well as the right toorganisefor anddemand the social
and political conditions necessary for effective tradeunionism.
It has alsobeenobservedthatrestriction of tradeunion
rights deprivesthesocietyofakeymechanismfor resolvingsocial
and economicconflictsand promotingdevelopment. In the ILOpublica-
tionFreedomofAssociationand EconomicDevelopment,ProfessorG.Caire
states :
"Therole oftrade unionismis to serve asachannel
for workerdiscontentbyhighlightingits social sig-
nificance, that is to say by encouragingits collective,
open andrationalexpression ... It is questionable
whether (restrictionsontheright to strike)are really
effective inachievingthedesiredobjectiveandwhether
strikeactiondoes notin factserve as ameansof
regulating conflict" (26)
ProfessorCairealsoquotes theICFTUpublicationEconomicDevelopment
andFreeTrade Unions, whichnotes :
"Tradeunions, providedtheyare givenafullpart in
developmentefforts onavoluntary basis, canbe themost
important socialinstitutionforpromotingmassparticipation,
whereasun-organised,illiterateand ill-informedworkers
contributevery little tothe development oftheirsocieties"
(27)
- 419 -
FreedomofExpression,PreedomofInformation,The
Right toEducationand CulturalRights
Theeffectofstatesof emergency onthe complexofinter-
relatedrightssuggestedby this titled varies significantly fromone
stateofemergencyto another. WhileColombia continuedtoenjoy a
relatively free and vitalpress duringits longstate ofemergencyand
thestate ofemergencyinNorthern Irelandhas scarcelyaffected these
rights, otherchaptersamplydemonstrate how 1estructiveof these
rights astateofemergency- oritsabuse - can be.
In moststatesofemergency censorshipis introduced. The way
it is applied,however, variesgreatly withthe natureof the emergency
itselfand the attitudeofthe government. In somecases only statements
orprintedmateriallikely to exacerbate theproblemswhich led tothe
state ofemergency- revolutionaryliterature, for example - are pro-
hibited. In others criticismof the stateofemergencyitself is pro-
hibited. In still others, there is near total ban a on criticism of
the government and critical comnent on social or political problems (28).
Ifsuch rules areapplied systematically, the vitalityand relevanceof
radio, televisionand the press, to which vastnumbersofpersons look
for "access to information and ideas"andevenas aformofaccess to
culture,may suffer seriousdamage.
Censorship,however, isonly oneof the perilsposed by states
ofemergencies to this complexofrights. Newspapers, magazines and
publishinghousesmaybe closedor expropriated. Theymay suffersuch
irreversiblesetbacks,including financiallosses from temporaryclosures,
denial ofnewsprint, seizureor destruction ofproperty or arrest,exile
or assassinationofstaff, thatit becomes impossible to operate.
Smaller institutions aremore likely to succumbto such pressures,so
that the media tend to becomemoremonopolised and lessdiverse (29).
Another indirectconsequenceof severe censorshipis that it
becomes increasinglydifficultforgovernment officials themselves to
be adequatelyinformed about the extentof abuseofauthority, the
gravityof social problemsandothermatterswhich cannot be freely
reported.
Purgesofthe curriculaand staffof schoolsanduniversities
are commonduring statesofemergencies, especially thoseof long
duration (30). In extreme cases, theeducational systemis brought
underthe direct controlof the armed forces, withgivenschools and
universitiesbeingentrusted to the tutelage of anofficerwhosesole
qualification,moreoften than not,is loyaltyto the government.
Intolerance in the liberal arts may alsoresultfromstates of
exception. As with other fors,af censorship,its effuctsvary
significantly fromone stateof emergencyto another. Insomecases
onlyliteratureor artisticworks, including theatreand musicwhich
expressopinionsor aphilosophy closely linkedwith the problemwhich
led to the stateof exceptionareaffected. In othercases, itmay
extend to all works byauthorsorartists simply associatedpublicly
with social orcultural positionswhich havefallenintodisfavour,
orworks which treatthemes - suchas repression,povertyor resistance
toauthority- which have becomeuncomfortable for thegovernment, even
ifwritten in acompletelydifferent context. This typecf censorship
may also be extendedto thesocial sciences,such as history,economics,
- 420 -
education,politicalscience,psychologyand sociology. Themore
extendedformsofcensorshipare encouragedby the conceptof the
international and internalsocio-culturalwarwhich ispartofthe
DoctrineofNational Security,but it occurs inothercontexts as
well. TheArgentinemilitarygovernment,togivebutoneexample,
banned, interalia, the worksoftwoofLatinAmerica'sNobel
Laureates, thepoetPabloNerudaand thenovelistGabriel Garcia
Marquez, the works of Freud and the Swiss psychologist Jean Piaget,
aswell as celLainencyclopedias (31).
Theconsequencesof this intoleranceor distrustofcultural
pluralismare two-fold. In the firstplace, it deprives the population
ofaccess to elementsof theirownnational cultural legacy andinter-
nationalauthorswhoseworks formpartofthe commoncultural heritage
ofmankind. In addition,the lackof access to suchworks andthe
atmosphereof culturalobscurantismhandicapsthe creativeefforts
of living artists and writers, thus further impoverishing the national
culture. This intolerance,culturalconformism and narrowcultural
nationalism,may also have adverse effects for the right of minoritias
to their ownculture, religionand language (32)
PoliticalRights and Self-Determination
Suspension orrestriction ofpoliticalrights, as the pre-
cedingchaptersshow,is frequentlyone of the firstconsequences
ofastateof emergency. It takesvarious forms.
One is the prohibitionofpolitical activities. Thismay
involve nomore than aban onpublicmeetingsor demonsuiations,which
perhaps even are limited tospecificplacesand dates. In other cases
it takes the formof abroaderbanonactivities, includingthe
banningofpoliticalnewspapers andspeeches, the 'suspension'of all
activitiesof politicalpartiesorthe dissolutionofsuchparties,
the prohibitionofthe advocacyofspecified ideasor simplya
categoricalban in termsofall politicalactivity.
Suchmeasuresmayaffect not onlypoliticalpartiesor
organisationsbut also 'popularorganisations', that is, groups
whichdo notadhere to any particularpoliticalideologybut are
created to defend the interests of specific sectors of the society
such as youth, women, the rural poor or residents of a certain area.
One would expect that with the suspension of rights for
some time the threat to the nation woula be eliminated or brought
under control, permitting theresumption ofpolitical activity.
However, in some countriesthe restrictionofpolitical partiesand
activitiesis increasedrather thandiminishedwith the passageof
time. The restrictionsareoften enforcedbymeasuressoharsh-
includingretroactivecriminalisation,the impositionofexceptionally
heavy sentencesof imprisonment,lengthydetentionwithoutchargeand
even systematic tortureofpoliticalprisoners- thatonecan only
concludethat the goal is not to overcomeaparticular crisisbut
rather to eliminatepermanently the politicalopposition. This
particularabuseof statesofemergency is linkedwiththe use ofa
stateof emergency asar6gimeof transitiontowardsan undemocratic
society, and the purposeofeliminating thepoliticaloppositionis
sometimes openlyadmitted.
- 421 -
In additionto interference
with the activities
ofpolitical
partiesand 'popularorganisations',
the infringement
ofpolitical
rights frequently
involves denialof ".he right to takepartinpublic
affairs ...throughfully electedrepresentatives"
and "the right to
vote and beelectedatgenuine periodicelections"
(33).
Three patternscan be observed.
Themo't common,and most
drastic,is the coup d'6tatinwhich the elected leadership
of the
executive
branchis dismissed,
the elected legislature
suspended
or
dismissed
and, typically,
elections
arepostponed
indefinitely
orto
somedistantdate.
In othercases, the right toparticipate
inpublicaffairs
through electedrepresentatives
is affectedbyusingemergency
powers
against selectedmembersof the national legislature
orlocal officials.
In India, for example, the legislature
remainea insessionduringthe
stateofemergency
butmore thantwentymembersof the parliamentary
opposition
were detainedwithoutcharges.
Theelections
werealso
twicepostponed
(34).
Apart fromthe problemof fAudu]2nt elections,
which is not
particularly
relatedto statesofemergency,
the state of emergency
whichserves as atransition
towardsan authoritarian
societydoes
frequently
involve the holdingofelections
whichare not freeand
genuine.
Uruguayprovides
illustrations
ofhowan electionmay be
so conditioned
tlatit doesnotpermitagenuine determination
of the
willof the electors.
The1980draft constitution,
whichwasnot
a pted, envisaged
apresidential
electionwithasinglecandidate
who
would need to receive the approvalofthe armedforcesprior to the
election
(351 . The draft constitution
having been rejected
in a
national referendLm,
elections
for members of the controlling
bodies
ofthe parties wereheld in 1982. Onlythree partieswere allowedto
presentcandidates
in this election.
Citizensdeprivedoftheir
political
rights by Institutional
ActNo.4 (about8,000) could not
participate.
Also, any personhaving beenacandidate
ineitherof
the immediate
past elections
(1966 and 1971) was precluded
from present-
inghiscandidature,
regardless
ofhis political
affiliation,
andthe
candidates
were prohibited
from making anycriticisri,
of the ruling
military government
(36).
Although the plain refusal to permit elections
which disen-
franchises
the entirepeopleis the mostcommonviolation
of theright
tovote; suspension
ofthe political
rightsof categories
ofpersons
byemergencydecrees has alsooccurred
(17).
Adistinctpolitical
rightrecognised
byinternational
human
rights instruments
is therightof access topublicservice.
This
rightis often infringed,
againinprolonged
statesofemergency,
by
purgesofthepublic administration
pursuant
to emergency
decreesas
well as political
discrimination
in hiringand advancement.
InGreece,
for example,apolitical
purge affectednot onlythe staffofvarious
ministries
and publicoffices,
but alsothepolice andmilitary,
the
judiciary,
professors
in publicuniversities,
teachers in public
schools and eventhe administration
ofthe GreekOrthodoxChurch (38).
The Universal
Declaration
statesin article 23, "Thewillof
thepeopleshall be the basisof the authority
ofgovernmeni;
this will
shallbe expressed
inperiodicandgenuineelections
... ". It has been
- 422 -
argued thatprolonged suspensionof electedgovernment anddenialof
politicalrightsconstitutes arupturebetween the governorsand the
governedsoprofound thatit is comparable to the domination ofa
people byaforeignpowerand violates the right to self-determinat.Lon,
aright sohigh in the hierarchyof legalnorms that itis considered
jus cogens (39). Inarecentpaper,Dr. SalvatoreSenese expressed
thisargument in the following terms :
"But thereis an evenmore radicalcontradictionof
democraticprinciples ...since the Doctrine ofNational
Security attempts to set thesupreme goals ofpolitical
life independent of and in opposition to all that
individuals ... think on the subject. The imperatives
of security and development are imposed from outside the
social body. Thy are prosented_as the result of
scientificobservation/andgiven/aveneerof inevitability
... The people are, therefore, dispossessed of the right to
create and fashion the patterns of their existence and to
choose the path of their common destiny. Sovereignty is no
longer limited to the people, their will, to ... the
participation of all. Consequently, the political power
no longer drawsits legitimacy fromthepeople'ssovereignty ...
In such circumstances, the individual as a historical and
natural entity and as a depository of inviolable rights is
effaced. In tie same way, the principle of the political
freedomofcitizensas ameansof ...self-determination
is effaced. These two concepts underlie the entire system
of human rights recognised by the international community." (40)
Although Dr. Senese's analysis is based on a study of the
Doctrine of National Security, his observations are equally valid for
r6gimes in other areas of the world in which implementation of an
official ideology has priority over the right of the people freely
to choose and determine the economic, social, cultural and political
system under which it will live.
The Right to Development
The content and implications of the right to development, whose
existence was recoqnised by the UN General Assembly in 1979, is the
subject of considerable debate (41). It seems likely to remain so
for some time. An early conception of development, now largely dis-
credited, focused almost exclusively on economic growth. More
recently, the 'basic needs model' has broadened the concept of
development to include improvement of other socio-economic indicators
s;uch as literacy, life expectancy, infant mortality and employment (42)
Still othes contend that the concept of development includes fulfil-
ment of spiritual as well as material needs, the provisionof full
opportunity for participation and recognition of the human being as
the subject rather than the simple object of the development process (43)
More than ordin,,ry caution is indicated in approaching this
complex topic. However, giventhe not infrequent attempts to justify
suspension ofhumanrights by reference to an economic crisis or the
exigencies ofdevelopment, the greater errorwould be not to try to
reach some tentativeconclusions about the implicationsof statesof
eme.gency for this right.
- 423 -
In Uruguay,during 10 years ofemergency rule thepurchasing
powerofwageshas fallen 50%, the valueof thecurrencyinternationally
has fallenfrom240 to 45,000pesos to thedollar (44). There also
existsan importantstudy,undertakenby the NewYorkAcademyof
Sciences, togetherwith theAmericpnMedical Association,theAmerican
CollegeofPhysicians, theAmericanAssociation for theAdvancement of
Scienc, and theNationalAcademyofSciences, onthe effects of the
stateofemergencyon themedicalprofession inUruguay (45). Aswe
haveseen, adequatehealth careservices is oneelementofdevelopment.
Withinthe first threemonths afterthe armed forcesassumed
controlof thenationaluniversity,accordingto this study, 61 members
oftheFacultyofMedicinewere dismissedand 35 arrested for security
offences. Atotalof 54 casesofimprisonment ofmedicaldoctorswas
verified.
The teachingofsocialmedicine,ethics andpsychoanalytical
techniqueswere forbidden,and the departments of socialmedicine,bio-
physics and forensicmedicineeliminated. The neurology departmentwas
reduced from7full-timepositionsto2. Advancementand thegranting
ofcontracts werepoliticised,resulting inaloweringof academic
standards. Funds previouslyprovidedto the Faculty ofMedicineand
its hospitalwere divertedto the ArmedForcesHospital, and grants from
international agencies allowed to lapse. All newresearchproposals
requiredthe approvalof themilitaryauthorities.
Medical librarios have been forced to curtailsubscriptionto
foreignmedical journals,and thequality cf nationalmedicalpublications
has deteriorated. The annual medicalcongresseshave been stoppedby
themilitaryauthorities, and travel to internationalmeetings restricted.
Manyof themostexperiencedcliniciansand researchers havebeenforced
into exile.
Tile study concludes that thesedevelopmentsmustinevitably
resultin "thelesseningof the skillsofthemedicalpractitionerand
ultimately in thedeteriorationofthe qualityofthe medicalcare
available" (46).
ThechapteronArgentinagivessome indication of theeffects
of theprolonged state ofemergencyoneducation, anotherelementof
development (47). Additionaldetails aregiven intwo studiespublished
inIndexonCensorshipin 1978, TimeofSilencebyNissaTorrents, and
Clearingthe TeachingAreabyN.Caistr (48). Theyreport that,as the
resultof themilitary 'int-rvention'in theArgentineuniversities,
10,000books wereconfiscated fromteachers and studentsin oneuniversity,
in another17 teachers werechargedwith 'plottingto implantMarxist
ideology' as aresultof their academicactivities, and 50%of the
staffweredismissed for securityreasons in athird.
Financialsupport for publiceducationwas reduced, and the
real wagesof teachers fell drastically. Therewas acorresponding
increasein teaciher resignations, leadingto the closureofmany
primaryschools,particularlyin ruralareas (49).
InUruguay, scientific researchwas also affected. Amongthe
thousandsof personsarrested,dismissed,exiledor 'disappeared'under
the stateof emergencywere 8membersof theAt-micEnergyCommission,
approximately 100members ofthe NationalCouncil forTechnologicaland
- 424 -
Scientific Research,and600fromother institutessuch as theNational
Research InstituteforAgricultureandCattleBreeding (50). In sum,the
lossofacademic freedom,substitutionofpoliticalfor professional
criteriainadvancementand hiring,the purges, arrestsandwhat the
authorofthochapteronArgentina refers to asgeneral 'legalinsecurity'
has led to awaveofexiles- anew typeof 'braindrain'generatedby
abuseof emergencypowers. Valuable technicians,researchers andskilled
professionals are lost.
Theuse ofashort-livedstate of emergencyinresponse to a
grave and suddeneconomiccrisis, orto permitimplementationof specific,
urgently-neededreforms, cannotbeevaluatedhere. Evenbythe narrow
definitionofdevelopmentas economicgrowth,however,prolongedstates
ofemergencyhave notbeenshown to be effective. If we take abroader
viewof thisright and assume that lavelopmentmeans assuringthat the
basicneeds of the entirepopulationare met,or participationindecision-
makingand the fulfilmentof the non-material needsof the individual,
the failureof statesofemergencybecomes evenmoreevident.
III. THERIGHT TODUE PROCESSAND TME
RIGHTSOFDETAINEDORIMPRISONEDPERSONS
The effects of statesofemergencyonthese rightshas been
the subjectofmuch concern,owing, interalia,to the frequency with
which state- of emergency are accompanied by infringements of these
rights, the grave consequeces of denial of these rights for the
individualconcerned, theirclose relation to violationsof otherrights
suchaspoliticalor tradeunionrights, and the frequency with which
denial oftheserights is associatedwithgross violationssuchas the
torture ormurderofprisoners. Thatapersonshouldbe convicted
withoutafairchanceto defendhis innocence,ordeprivedofhis
freedomwithoutbeingchargedwith acrime,shocks the conscienceand
seems the epitomeof injustice. The followingis abriefsummary of
the dangersof the abuse of the rightto afairtrialduringstates
of emergencyandsome suggestionswhich may help topreventsuch abuse.
DueProcess
The rightof aperson triedfor criminaloffencesto due pro-
cess oflaw or to afairtrial is not in factoneright but rather
acomplexofrights, or at least arighthavingmanydistinctelements.
*\n examinationof the definitiongiven this rightby the international
humanrights instrumentspermitsthe identificationofat least 20
distinct rights :
1.The rightto be informedpromptly and in detail ina
languagewhichhe understandsof the nature andcause
of thecharge againsthim. ICCPR,article 14.3(a) (51).
2.The rightto defend himselfinpersonor through legal
assistanceof his own choosing. Article14.3(d).
3.The rightto beinformedof theright tocounsel. Article
14.3(d).
- 425 -
4.The rightof an indigentdefendant
to have free legal
assistance
"inany case wherethe interests
ofjustice
so require".
Article14.3(d).
5.The right tohaveadequatetimeand facilities
for the
preparation
ofhis defey.ce and tocommunicate
with
counsel.
Article14.3(b).
6.The right to be presentat trial. Article14.3(d).
7.The rightto be tried "without
undue delay".
Article14.3(c).
8. The right to be presumedinnocent
until proved
guiltyaccording
to law. (Article14.2.
9.Theright not to becompelled
to testify against
himselfor toconfessguilt. Article14.3(g).
10. Theright to afair hearinginatribunalwhichis
"competent,
independent,
impartial"
and "established
bylaw". Article14.1.
11. Aqualified
rightto apublictrial. Article14.1.
12. The right toexamine,or have examined,
thewitnesses
againsthim. Article 14.3(e).
13. The right to obtain the attendance
andexamination
ofdefence witnesses
underthesame conditions
as
prosecution
witnesses.
Article14.3(e).
14. The right to equalitybefore the court. Article14.1.
15. Theright to the free assistance
ofan interpreter,
ifnecessary.
Article 14.3(f).
16. The rightnot tobe tried orpunishedagainfor an
offenceforwhich he has alreadybeenfinally convicted
oracquitted.
Article 14.7.
17. The rightto apublished
judgment.
Article14.1.
18. Theright, if convicted,
toappealthe conviction
or sentence
to ahigher tribunal.
Article 14.5.
19.Theright 'ot tobe chargedwith acrimeonthe basis
ofan actoromission
whichdidnot constitute
an
offencewhen committed.
Article15.
20.The rightofapersonunjustly
convicted
to
compensation.
Article 14.6.
Violations
ofalmost all theserights are commonduringstates
ofexception,
as the preceding
chapters
show. In Northern
Ireland,for
example,
confessions
whichhavebeencoercedmaybe admittedinto
evidenceprovided
onlythat they are nottheproductoftortureor
ill-treatment
(52). InTurkey,military courtsinwhichsecurity
- 426 -
offencesare triedduringstates ofemergency lackessential
guaranteesof independence and impartiality (53). The lack of
independence of such courtsis also analysedin the chapteron
Uruguay (54), and the author of thechapteronThailandconcludes
that there is certainlysomaexecutive interferenceand somede-
greeof influenceonthe judiciary in the martial lawcourtsof
that country (55).
In Turkeyand Northern Ireland, apersonmaybe convicted
onevidencegivenby awitness who is notidentified anddoesnot
appearduringthe trial, but whosetestimony is summarised for the
court by alawenforcementofficer (56).
Other elementsof dueprocessoften suspendedunder astate
ofemergency include the right to be informedpromptlyof the
charges, the righ, to counsel of one's choice, the right to have
adequate time for the preparation of the defence, the right to be
tried without delay, the right to a public trial, the right to
appeal, the right not to be retried after a final judgment, and
non-retroactivityofpenal laws.
Themostexhaustivecatalogueof violations ofdueprocess
in agivencountryduring astate ofemergency is to be found in
the series ofdecisionsconcerningUruguay issuedby the Human
RightsCommittee,wherethe Committee findsviolations of the
principle of non-retroactivity of penal laws, the right to counsel
of one's choice, the right tocommunicatewithcounsel, the right
to be promptly informedof thecharges, theright to have adequate
time and facilities for the preparationofthe defence,the rightto
trialwithout delay, the rightnot to be forced to incriminateone-
self, the right to apublictrial and the right to apublic judgment
(57).
Thequestionof derogationfromthese rights haslongbeen
the subjectofcontroversy. Whenthe derogationprovisionsofthe
International Covenantwere beingdrafted.France argued thatthe
right todueprocessas awholeshould be non-derogable (58). This
viewdidnot prevail and,with the exceptionofthe principleof
non-retroactivityset forth in aseparate article,the entirecomplex
of rightswas madederogable, leavingthe dooropento abuse.
Althoughin theorythe principleof 'strictnecessity' should
minimise the effectof emergencypowers onthe rights ofpersons
on trial, the weaknessof international reviewmechanisms deprives
this theoretical limitationofmuch of its force.
What is neededmuchmore thanaretrospectiveexaminationof
thenecessity forparticularmeasuresin particular circumstancesis
apreventiveapproach,clearly indicating inadvanceofastate of
emergencywhichelements of the rightto afairtrial shouldbe con-
sidered essentialand non-derogable.
Someprogress in this directionhas already beunmadein
international law (59). On various occasionsthe Inter-American
CormissionofHumanRights has stated thatthe righttodue process
may notbe derogatedfromduring statesofemergency, despitethe
fact that the correspondingprovisions of the AmericanConvention
arenotclassified as non-derogablebytheConvention (60). In
- 427 -
addition,humanitarian lawprovides thatevenin timesof armedconflict
withinanation,civilianstried oncriminalchargesrelated to the
conflictareentitled to respectfor fundamentalelementsofdue process.
Specifically,article6ofProtc-olII to theGenevaConventionsof
1949concerning theprotection ofvictimsofnon-international armed
conflictsprovidesthatsuch personsareentitledto the following
1.Theright to be informedpromptlyand in detailof
thecharges. Article 6.2(a).
2.The right to "all the rightsand meansofdefence
necessary". Article6.2(a).
3.The rightto be presentat trial. Article 6.2(e).
4.Thepresumptionof innocence. Article6.2(d).
5.Theright not to be forced togive incriminating
evidence or toconfess. Article 6.2(f).
6.The rightto atribunal "whichoffers theessential
guaranteesofindependence and impartiality". Article 6.2.
7.The right to appeal. Article6.3.
8.The principleofnon-retroactivityofpenal laws.
Article 6.2(c).
AsDr. JimdnezdeArechaga,former Presidentofthe Inter-
AmericanCommissionofHuman Rights, hassuggested,guarantees that
are considered non-derogablein time ofwarmust afortiori becon-
sidered non-derogablein times of lesser threats to the nation (61).
ThatProtocolII makes theseparticular rightsapplicable to anarmed
conflictoccurringwithinthe national territoryand to "penaloffences
committed in relationwiththe armedconflict" (Protocol Iprovidesa
somewhat more complete list ofdue processguarantees for civilians
chargedwithcrimesduringaninternational armedconflict)is com-
pellingproof that infringementsofthese rightsduringstatesof
emergencycan not be "strictlyrequiredbythe exigenciesof the
situation". Thisshould be formallyrecognised bycompetent authorities,
bothnational and international,in establishingstandards related to
the possibleeffectsof future statesofemergency. It is ahopeful
signthat no restrictionofdue processhas yet been upheld by either
the HumanRiqhts Committeeor Europ2anCommissiononHumanRightson
theground thatit was 'strictlyrequired'. Whatis required,however,
is apreventive approach, and nationaland international human rights
authorities should formallyrecognisethat atleast thedue process
rights contained in article6of ProtocolII are apriori non-derogable.
Leavingaside, for the sake ofbrevity,theright to apublic
judgment,rightto afree translator, the right tocompensation for
unlawfulconvictionand the general principleof equalitybeforetae
courts,we find that according to the standardsofProtocol II a
significantnumber of rightsmight stillbe suspended :the rightto a
public trial,the right toatrial withoutunduedelay, therightto
examineprosecutionwitnesses, the right toobtainthe attendanceand
examinationofdefencewitnesses, the rightnot toDeretriedafter a
final judgment, theright to alawerof one'schoice,andthe right to
free legal assistanceif necessary.
- 428 -
It is submittedthat, by virtueof generalprinciplesregard-
ingderogation,all but tile firstthreeof these rightsshouldalsobe
consideredaprioriorat leastpresumptivelynon-derogable.
Withregard to the right to alawyerof one's choice,the only
known justificationfor suspendingthis right is the fear thatsome
lawyerswill smuggle contraband toimprisoned clientsorcarrymessages
which representadangerto security. To theextent thatthis is a
legitimateconcern, it wouldseemto be fairly easily controlledby
other measures. At the limit,alist of lawyers notpermitted to visit
prisoners chargedwithsecu;ityoffences could beestablished, adrastic
measure tobe sure, but considerably less drasticthanrequiringsuch
defendants to acceptassignmentof amilitarylawyer as counsel. It is
worth recalling thatthe appointmentofmilitarycounsel, theusual
consequenceof suspension ofthis right,hasbeencriticisedonthree
grounds. First,military lawyers are usually unqualifiedand inexperienced;
secondly, they cannotbe reliedupon toprovidethe vigourous,independent
defencewhichevery defendantdeserves; and,thirdly, their appointment
serves to eliminate whatthe authoron Uruguay refers to as the "awkward
witness" (62) ofabusesoccurringeitherbeforeorduring trial,thus
facilitating further violations of therights of thedefendant, including
physicalabuse and torture.
The reasonswhy the right to freelegal assistancewhennecessary
should be considered non-derogablecan be statedbriefly. Firstly,itis
unlikely that the state'sability to finance legal assistancewill be
directlyaffected by athreatto the lifeof the nation; secondly,where
the right to legalassistance obtains, it is unthinkablethatdiscrimina-
tiononthe basisof abilityto payshould bepermittedbecauseof astate
of emergency, whenthe importance oflegal assistanceis enhanced by
increased penaltiesand lessenedsafeguards againstwrongful convictions.
In Protocol II, as well as in the human rights treaties (63),
the right to examine prosecutionwitnessesand to obtainthe attendance
and examination ofdefencewitnesses areset forth inasinglepro-
vision. As we have seen, the right toexamineprosecution witnesses
is sometimesderogatedfrombecauseofajustifiablefear that terrorist
organisationsmay take revenge againstwitnesses, or that this possibility
will intimidate potentialwitnessesandprevent themfromgivingtestimony.
However, there is no plausiblereason for suspending theright ofa
defendantto obtainthe attendanceand examinationof witnesseson his
behalf. Similarly, no convincingexplanationhas ever beenadvanced
for derogating,duringastate of emergency, fromthe rightof aperson
finallyacquitted or convictednot to be tried or punishedagainfor the
sameoffence.
Withrespect to the requirementofProtocolII thatcourts enjoy
"essentialguarantees ofindependence and impartiality", it issubmitted
thatthis be interpretedas requiringthatcourts be structurallyor
organisationallyindependentfrom the otherbranchesofgovernment. This
would bar the creationof ad hocspecialcourts, such as thatdescribed
in the chapteronZaire (64), whichnever haveany justificationother
thanpolitical expediency,and themorecommonphenomenonof trialof
civiliansbymilitaryor martial lawcourts.
- 429 -
The trialofcivilians
inmilitary
courts,
it is submitted,
is
never 'strictly
required'
so longascivilian
courts remainfunction-
ing (65). Thereasons invoked
for transferring
jurisdiction
from
civilian
tomilitary
courts are neverof sufficient
gravity
topreclude
less onerous
alternatives;
while thepreceding
chapters
have demonstrated
thatmilitary
trials are alwaysaccompanied
by the infringement
ofa
hostofdefence
rights.
The experience
ofNorthern
Ireland
proves that
evenwherethere is ahighlevelofterrorist
activity,
withproper
precautions
civilian
courts can continue
toexercise
jurisdiction
over
security
offences.
It is to be hoped thatbefore long the international
community
will be able to agreethat the entire complex
ofdue process
rights
shouldbe considered
non-derogable.
Until then it is suggested
that
derogation
fromdue process
rights duringastateof emergency
should
belimited
essentially
to three types ofmeasures,
assuming,
ofcourse,
thatthey are shownto be 'strictly
required'
in theparticular
situation
1. Suspension
of the right to apublic trial.
2. Permitting
larger delay thannormal inproceeding
totrial.
3. Admitting
the testimony
ofprosecution
witnesses
whodonot appear in the trial,whilemakingall
possible
efforts
topermitthe defence to test
the veracity
ofsuch testimony
andpreserving
the
right toexamine
allwitnesses
whodoappear.
The RightsofPersons
Subject
to Any
FormofDetention
orImprisonment
As the preceding
chapters
show,administrative
detention,
i.e.
detention
without
criminal
charge,
is oneofthe mostfrequent
measures
takenpursuant
to statesofemergency.
The numberof persons
detained
is oftenin the thousands
or tens ofthousands.
The official
figure
for
persons
detained
diringthe 1981-82 emergency
inPolandis 6,300; at
the beginning
ofthe 1967 emergency
inGreece,
7,000persons
were
detained
inAthensalone; Amnesty
International
estimates
that 77,000
persons
were detained
during the 1975-77
emergency
in India, and it is
reported
that35,000persons
weredetained
duringtheAugust-October
1982 emergency
inPeru (66).
Depriving
an individual
ofhis freedom
without
evidence
of
criminal
conduct
andwithout
the prospect
ofatrialinwhichhis guilt
or innocence
willeventually
be established,
is initself aserious
denial ofhumanrights,
justifiable
onlyin extreme
circumstances.
Whenit cannotbe avoided,
care mustbetaken to avoid allunnecessary
prejudice
to other rightsofthe detained
person,
including,
interalia,
the rightofaccess to alawyer,
the right tovisits bymembers
ofone's
family,
theright tomedical
care and adequate
nutrition,
therightto
physical
integrity
and the right to be treated
"withhumanity
andwith
respect
for theinherent
dignity
ofthe humanperson"
(67).
- 430-
Unfortunately,experience hasdemonstratedthe tendency for
evengraverinfringements of humanrights to followwhen, as sooften
occurs, thisessentiallypreventivetemporarymeasure is transformed
intoasystemofprolonged incarcerationwhich is entirelyadministrative,
i.e. beyondthe control of the courts. The installationofsuch a
systemconstitutes amajorelementof whatseveralauthorshave
describedas adualor two-tracklegal system,where full or reasonably
fullguarantees aremaintained onone side,but aseparatesystemexists,
to be used at the discretion of the executive, whichduplicates the
purpose of the firstbut differsfromit in thatit is devoidofguaran-
tees. The Inter-AmericanCommission has remarked that theuseof prolonged
detentionmay bp the equivalent topunishmentwithout the slightest
semblanceofdueprocess,withouteventhe formalityof asentence (68).
Detention is alsodeliberatelyused insome cases to circumvent
or frustrate the functioning of the courts,as forexample whenan
individualis madethe subject ofadetentionorder atthe expiration
of asentenceof imprisonmentorwhen an application for habeas corpus
reliefhas been granted (69).
In additionto legislationwhichpermits detention for an
indefiniteperiodor aperiodwhichis unconscionablylong,theprincipal
factor implicated inabuse ofdetentionpowers is the suspensionof the
right tochallenge the legality ofdetentionin acourtof law. Other
factors include denialofaccess to alawyer, failure to assurefree
legal services to indigentdetainees, distributingthe power toorder
detentiontoo broadlyamong low-rankingofficials, andsuspendingthe
individual rightof actionagainstofficials guiltyofwilful violations
of his rights.
In additionto prolongeddetentionperse, two otherabuses
associatedwithdetentionwarrantmention. One is extra-legaldetention
in clande-stine prisons orjails, theotheris torture and inhuman
treatment. Insofar as legally authoriseddetention is concerned,the
principal conditions whichfacilitate or encourage ill-treatmentand
torture are non-publication
of the names ofpersonsdetained,denial
ofaccess to acourtor to alawyer,denialofvisitsby familymembers
and lawswhichgive immunity to securityofficials orprovidethat
chargesagainst thembe held in militaryor martiallaw courts. An
additional factorwhichcomes intoplaywhenaperson is facingormay
eventually facecriminalcharges, is changes in the lawof evidence
whichencouragegreater relianceon confessionsor limit thedefendant's
right tocontestevidencecollectedduring the investigatorystage of
proceedings.
Efforts topreventtortureand mistreatmentduringlegally
authoriseddetentionshouldinclude threeprincipalcomponents. First,
the detaineeorarrestedpersonshouldhaveasmuch contactaspossible
with 'theoutsideworld'. Inparticular,visits byhis lawyerand
familyshouldbe facilitated. Second, no legal incentives to torture
should be created. Strictlegal accountabilityofall officialsinvolved
in detentionand interrogationshould bemaintainedand the lawof
evidence shouldnot create additionalincentives toobtain confessions.
Third, practicaladministrative measuresreinforcingthesupervisionand
accountabilityofpersons involvedindetentionand interrogationshould
be adopted.
- 431 -
Themethodsadopted inNorthernIrelandafter publicexposure
ofseveral casesof tortureor inhuman treatmentare instructive (70).
Theyincluded :the policythat awomanofficershould alwaysbe
presentwhenfemale detaineesarebeing interviewed; placingone way
windowsin the doors of all interrogationrooms; givingrankingofficers
the dutyand authority to interruptany interrogationtheyobservewhich
seems excessive; requiringamedicalcheckeachtime asecurityprisoner
ordetainee is transferred fromone placeofdetentionto another.
Othernoteworth elementsof thisprogrammefor the preventionofmis-
treatment include fixingalimit onthe hours inwhich interrogation
may takeplace and the numberof personswhomayparticipate,requiring
thatofficerswhointerrogatebe rotatedbetween thatduty andgeneral
assignments, and educationof personshavinginterrogationdutiesabout
their legalresponsibilities. Two recommendationsmadeby the Inter-
AmericanCommission in distinctcontexts also areworth repeatinghere
one is thatacontralisedregisterofall person- detainedbe main-
tained, and the other is that all persons participating in interrogation
beproperly identified (71).
significantly, the EuropeanCommissionbased its finding that
administrative detention as practiced in Northern Ireland was justified
under the state of emergency not only on evidence of the need for
detention, but also on the measures adopted to prevent abuses from
occurringduringdetention (72). Perhapsevenmore significantly, a
patternof physicalabuseof securityprisoners in 1977was broughtto
lightand stopped becauseof the actionof doctorsresponsible for
providing the mandatory medicalchecksofprisoners (73).
Unauthoriseddetention,being illegal by definition,is more
difficult tocontrol. Indeed, itseems insome cases to bemotivated
by the purposeof avoidinglegal scrutinyof the groundsofdetention
and 'reatmentgivendetainees, as well as the desireto avoidres-
ponsibility beforenationaland worldpublicopinionfor defateof
personsso detained. In short, the verypurposeof suchdetentionis
toviolatethe rights ofdetaineeswithabsoluteimpunity.
In some cases,however, extra-legaldetentionis transformed
intolegaldetention. After aperiod oftimeof clandestine inconuni-
cadodetention in the hands ofunidentified authorities, duringwhich
time theperson is invariablytorturedorabused, thedetaineeis
mysteriously transferredto the custodyof acknowledgedlawenforcement
authorities,brought before ajudgeand thedetentionis publiclyrepor-
ted. When thisoccurs, it doesprovidean opportunity for legal inter-
ventionand the lawenforcementauthorities whoreceive thepersoninto
their custody,orjudgeswho takecognisance ofthe situation,commit
agrave breachofduty ifthey turn ablindeyeto this abhorrent
practice. The full rigourof The lawshouldbeapplied inany cases
ofextra-legal detentionwhich come to light.
Afinal commentonthis subjectis that,whetherin authorised
orextra-legaldetention, themost acuteviolations ofhumanrights,
suchas the torture and 'disappearance'ofdetainees, are clearly
encouraged by the ideathat the individual is not simply acriminal
- much less asuspectenjoyingthepresumptionof innocence - but an
implacable enemy. Equatingthepoliticalor ideologicalopponent
withanenemynotentitledtorespect for the "inherentdignityofthe
humanperson",but whoseonlyentitlement is to acombatwithout
quarter, isperhapsthemostdestructive legacy of thedoctrineof
nationalsecurity.
- 432 -
IV. SAFEGUARDS INDOMESTICLAWAGAINSTABUSEOFEMERGENCYPOWERS
ConstitutionalSafeguards
Statesofemergency are almostalwaysprovidedfor inconstitu-
tions,in termswhichspellout,with varyingdegreesofspecificity,
the circumstancesinwhich theymay bedeclared, the procedureforso
doing,and their effects. Aswehave seen,violationof these con-
stitutionalrestrictionsare regrettablycommon. Whileviolationof
the constitution is per seofno significance ininternational law,such
violations oftenresultin the infringement ofinternationallyrecognised
humanrights.
Notwithstandingthefrequency withwhich they are violated,
constitutionalrestrictions onstatesofemergency servetwopurposes.
Real emergenciesdooccur, andmanygovernments resortto emergency
powers ingood faith. To the extent thatthis is so, it isessential
that theproperoccasionsfor invokingemergencypowers and their
maximumscopebe fullydebatedanddecidedin advanceofrather than
duringacrisis. Since nothingless thanthe balanceofpower between
the branchesofgovernment and thewebofrights anddutiesbetweenthe
governors andgovernedis at stake, itis only appropriate that these
rules be giventhe highestpositioninthe hierarchyofdomestic legal
ncrms.
Secondly,wheregovernmentscome intopower that arenotdis-
posed to respect limits ontheir authority,these constitutionalpro-
visionsprovide objectivecriteriaby whichthe conductofsuchagovern-
mentcan be judged. They representafreelydeterminednational con-
sensuson the degree ofdissentwhich may be tolerated, the valueswhich
are so fundamental that theymay inno circumstancesbeviolated,and on
the limits to the powerofalegitimategovernment.
In bothof these functions - servingas guidelinesand legal
constraints for governments respectful ofthe ruleof lawand as a
basis for criticismof lawlessgovernments- constitutionalprovisions
complement the n'rms established in internc.tional law,whichare, of
ccirse, minimumstandards. Constitutionalnormsoften surpassinter-
nationalones, for example, in limitingtheeffects of astate of
emergency. Thus thePeruvianconstitutionof 1980precludesthe
exileofcitizens and the trialof civilians inmilitary courts; the
Malaysianconstitutionprovides that states ofemergency may not affect
constitutionalprovisions concerninglanguage or citizenship,and the
Ar'gentine andUruguayan constitutions recogniseadetainee's "rightof
option"to chooseexileoverdetention (74).
Althoughconstitutionalprovisionsshouldbe tailoredto the
formof government,legal tradition,socialand culturalvaluesand
historicalexperience ofeachnation,certainbasicprinciplescan be
recommended :
1. The effectsof states ofemerqencyonthe rights of
citizensand the powcrsof the variousbranchesofgovernment shouldbe
clearlyspelled out. The vaguenessofEasternEuropeanconstitutions
in this respect is one of the major weaknesses in the efforts made thus
far in the developmentof "socialist legality" (75). The Malaysian
constitution,providing thatemergency legislationcan beinconsistent
withanyprovisionof theconstitutionexceptthose concerning religion,
- 433 -
citizenship
and languageis anotherexampleofaconstitution
wholly
inadequate
inthis regard (76).
It issuggested that,as aminimum,constitution
sshould
specificythat emergencymeasuresmay not affect those rightsrecog-
nisedas non-derogable
in internatiohal
law. Theadvisability
of
placingadditional
limitson the effectsofstatesofemergencies,
eithertoprecludederogations
ofrights whichare considered
derogable
ininternational
lawor to protectrights notrecognised
in international
law,suchas therightto ajuryorthe right toacourtwhichincludes
lay assessors,
shouldbe studiedbyeach country in orderto give effect
to itsvalues and legal traditions.
2. The constitution
shouldenumerate anddefine the situations
whichjustify departurefromthe normal legalorder. Various typesof
emergencies
shouldbedistinguished
:aneconomiccrisismay notcall
for the sameemergencypowersas civildisorders.
It is particularly
important,
as the authorofthe chapteron
Colombiaadvised,to distingaish
betweenwarwith aforeignenemy and
domesticdisturbances.
Inaninternaldisturbance,
he states "there
isnoenemy todestroy,but an order to restore" (77). Asthis ob-
servationsuggests, thesecurityproblemsposedby warorthe threatof
war andthose posedbydomesticdisturbances
arequitedistinctand the
lawshouldtake intoaccountthese differences.
The legalpowers needed
to facevarious typesofemergencies
aredifferent,
and muchofthe
valueofdefining theeffects ofstates ofemergencyin advance is lost
ifall threats to thenation areaccordedidentical treatment.
As the training andpreparation
ofthe armed forcesis
essentially
forwarfarerather than lawenforcement,
theiruse in
situations
fallingshortof armedconflictincreases theriskof
excesses (78). Theyare also, as we haveseen, morelikely than
ordinarypolice forces toescapefromcivilian control.
As is shown in the chapteronGreece, thepsychological
attitude
ofthose chargedwithdefendingnational securitymaybe evenmore
importantthan their legalpowersin explaininghuman rightsviolations
(79). Distinguishing
betweenwarand lesserthreats to thepublicorder
alsohelps avoid the creationof awarmentality,
which inevitably
under-
mines respectfor t.-.c humanityof the 'enemy'and forthe rule oflaw.
3. Theprocedure fordeclaringastateofemergencyshouldbe
constitutionally
defined,givingprimary responsibility
to the legisla-
ture. As wehave seen, thereis atendencytousestatesofemergency
for politicalpurposes,e.g.to repressapartofthepopulation,
to
imposepolicieswhichdonotenjoypopularsupport,orto defendan
unpopulargovernment's
holdonpower. Forthis reason,the ultimate
decision to imposean emergencymustbeentrustedto the bodywhich
normallybestrepresents
the interestsof allsegmentsofthe national
community,
the legislature.
In manyconstitutions,
this is accomplished
byprovidingthatthe presidentmaydeclareastateofemergencywhich
will cease to have effectif notratifiedbythe legislature
within a
definedperiodof time. Insome countries hecandeclare astateof
emergencyonlyif thelegislature
is not insession. Giventhe con-
sequencesofthe decisionto impose astate ofemergency,
it is often
thoughtthat itshouldnot be takenunlessthere is abroadconsensus
infavourof it,andforthis reason approvalby an enhancedmajority
of
thelegislature
is required.
- 434 -
4. Thedurationof statesofemergencyshould bespecified.
Withrareexceptions, threats to the lifeof the nationare inherently
of limitedduration. It is universallyadmittedthat, to justify
departure fromthe normal legal order,athreatmusthave anappreciable
degreeofimmediacy and substance. The UNSub-Commission's Special
Rapporteurrefers to this as "the principleoftheexceptional danger"
and explains thatitrequires, first,thatthe dangerbe "presentor
at least imminent", and second, that it be "so substantial that the
measuresand restrictions /onrights/normally authorised ...manifestly
are no longer adequate to maintain the public order" (80).
Review of the need for emergency measures must thus occur at
regularintervals. The legislatureshouldplay aprincipalr6lein
this review, for the same reasons that it should play the decisive
rle in the original decision. The best method for assuring this is
to provide that no declaration of emergency shall have legal force for
longer than a fixed period of time, which should not exceed six months.
Failureto reviewthe need for emergency measures may encourage,
as the author of the chapter on Northern Ireland described it, use of
emergency measures after they are no longer strictly required because
rule by emergency measures is more "convenient" than respect for the
rights of individuals and the normal processes of law '81) . Evenif
emergency measures fill into disuse with the passage of time, as some-
times occurs, the fact that a declaration of emergency formally remains
in effect gives tile executive discretion to resort to emergency powers
at any time without complying with the normal formalities.
Constitutional safeguardis concerning the effects of states of
emergency on the judiciary and on the legislature will now be discussed.
The Judiciary
Even in times ofpeace, thepowerof the judiciaryvaries
greatly fromonecountry to another,particularlywithrespect tothe
power to determine the constitutionalityof laws. In allsocieties,
however, itassumes animportantr~le inprotectingthe rights of
citizens.
Restrictions on tne jurisdictionofthe ordinarycourts almost
invariably accompany states of emergency. iere emergency powers are
employedin good faith toconfrontareal emergency,restrictionofthe
powers of the courtsrenders moredifficultthe taskofdetecting abuses
of emergencypowersand eliminating unnecessaryrestrictions ofrights.
As was stated in the chapter on Northern Ireland, "If wider powers are
granted to the executive and the police, then these powers should be
subject to, if anything,strictercontrol to ensure thatthey areused
only for the purpose for which they were introduced" (82).
In other countries one has the distinct impression that the
jurisdictionof the courts is restricted for the verypurposeofprevent-
ing judicial 'interference'in illegal practices. Judicialreviewduring
astateof emergency isessential to theconceptofastate ofemergency
as thesubstitutionofan exceptionalstate oflaw for the normal state
of law, rather than as the substitution of therule of law by lawless
government. It is alsoessential to prevent the accumulativeconcen-
trationofpowers of government inone branch,the executive,which in
the process acquirespracticallyunlimiteddiscretionarypowers.
- 435 -
It is axiomaticthat, for the protectionof human rights, the
greatestpossibledegreeofjudicial control shouldbestriven for.
However, it is widely thougit that the executive and legislature, the
political branchesof government,are entitled todiscretion in
determining theexistenceandgravityof athreatto the nation,i.e.
theneed for astateofemergency, and the necessityfor recourseto
specificemergencymeasures. Whether judicialreviewofthese two
decisions is advisableis, therefore,another issuewnich mustbe
decided in the light of the legal traditions of each country. There
are, however, a number of recommendations which are universally
applicable and which, if applied, would be of great utility in
moderating the effects of states of emergency. They are as follows
1. Normal judicial remedies should remain in effect for all
rights which are not limited by the state of emergency. One of the
distinct advantages of the American Convention on Human Rights is that
it requires that, during a state of emergency, the "judicial guarantees
essential for the protection of" (83) non-derogable rights may not be
suspended. The Inter-American Commissicn has often drawn attention to
the importance of this principle, especially to the importance of
preserving effective j-" cial remedies for the protection of the right
to life and physical integrity of prisoners and detainees. The principle
should not be limited to non-derogable rights, but should apply to all
rights which, in any given emergency, remain in force or are only
partially curtailed by measures adopted pursuant to the state of
emergency.
2. The ordinary civilian judiciary should retain jurisdiction
to review individual cases of detention in order to ensure that the
stated grounds are within the purposes of the emergency legislation
authorising detention orders, that proper procedures have been followed
and to ensure that the conditions of detention comply with the law.
The importance of this point has been recognised by various international
bodies. In its 1974 ;inual Report, the Inter-American Commission
recommended :
"That the necessary rules be issued in all the States ...
aimed at specifying the scope of the writs of habeas corpus
or amparo with respect to persons detained in the exercise
of specialpowers, exceptionalpowersor stateofsiege,
prescribing that the interposition of one of these remedies
toajudge obligatesthe arrestingauthority inallcases
tobringthe detaineebefore the judge, todeliver to the
judgeacopyofthe arrestorder, to informhimspecifically
where the personis beingdetained,and toshowthe
documentation proving the correctness of th2detention and
informthe judge immediatelyofany transfer toanother
place." (84)
The Freedom of Associatior Committee of the International
LabourOrganisationgoes even further, recommendingthatthe courts
retain jurisdiction to examine the merits of the detention :
"Therequirement ofdueprocess would not appearto be
fulfilledifunder the national lawthe effectof astate
of siege is thatacourt towhich application ismade for
habeascorpus cannotmakeand doesnotmakean examination
of themeritsof the case." (85)
- 436 -
Althoughsecurityreasons are ofteninvoked to justify
non-disclosureofthe factualbasis fordetention,this isnot
areasontodeny the courtsjurisdictionoverthe factual issue.
In appropriatecases,the exceptional procedureofanincamera
exparte reviewof the factspurportedlyjustifyingdetention
couldbe resorted'o.
3. The ordinarycourts shouldretainjurisdictionover
chargesofabuse ofpower by security forces, sinceentrusting
jurisdictionover suchoffences tomilitaryor securitycourts
has proven ineffective in preventing such abuse, and may even
amount to a de facto grant of immunity which encourages human
rightsviolations.
The anecdote inthe chapteronGreece ofacomplaintconcern-
ing death under torture which lingered in the drawer of a military
prosecutor until after the fall of the military government typifies
this phenomenon (88). Another illustration can be found in a
decision of the Human Rights Committee concerning the killing of
seven persons by police during the search of a house (87) . A complaint
having been made by relatives of the deceased, criminal proceedings
against the police were begun in the same military court which had
authorised the search. The preliminary investigation was entrusted
to the head of the police unit which had conducted the operation,
thit is, the direct supervisor of the men who comnitted the killings.
The Inspector-General of Police, J.n his capacity as judge of the military
court, ordered the proceedings discontinued on the ground that the
killings were justified. The ruling was overturned on appeal and the
case ordered to trial A trial was conducted - presided by the Inspector-
Gener-al - and all 11 defendants acquitted, on the same ground.
Whore the ordinary courts make findings of torture or ill-
treatment it is essential that these be given full publicity. On
recent occasions in Zimbabwe an order has been issued forbidding
publication 'onsecurity grounds', e.g. Guardiannewspaper 9and 10
July 1982. There is nothing more likely to ensure, repetition of
torture practices than the knowledge by the offenders that an official'
veil of stecrucy will be drawn over their crimes. The Zimbabwe govern-
ment has also approved retrospective legislation indemnifying members of
the security forces fromprosecutionincaseswhere theybelieved .ction
was warrantedin preservingstate security. The legislation covers
theprisonserviceaswell as the army and police (Timesnewspaper,14
August 1982). Such legislation is almost an invitationto torture.
4. Thecivilianjudiciaryshould retainjurisdictionover
trialsofcivilians chargedwith securityoffences, for thereasons
explained in the precedingsectionon DueProcess.
5. Theright to appeal criminalconvictions shouldbe retained.
When trialcourts functiontinder exceptionalpressuresanddefendants
face moreseriouspenalties, the needfor appellatejurisdictionis
reinforced. The appellate levelnot onlyoffersthe hopeof correcting
individualinjustices,but moreimportantly servesto defeatand
correctfaultypracticesat the trial level. Knowledge thatdecisions
are immunefromappealfavours laxity in theadministrationof justice.
- 437 -
6. The independence
ofthe judiciary
must bepreserved,
for
asubservient
judiciary
cannotbe reliedupon to accomplish
the
difficult
taskofprotecting
humanrights and therule oflawduringan
emergency.
Ashas beenseenin preceding
chapters, restrictions
on
theindependence
ofthe judiciary
mostfrequently
take the formof
purgesof the judiciary
(88), althoughactual restructuring
of the
judicial branchalsohas occurred
in somecases (89). Otherwaysof
undermining
judicial independence
is to postrecalcitrant
judges to
remote areas, as wasdone inChile,orsimply tosuspendsecurityof
tenure,as inArgentina.
Theuse of emergency
measuresin these ways
shouldbe expressly
prohibited
in the constitution.
Although"excessive
deference
to theexecutive"
and "unwarranted
self-restraint
in the face ofabuse of humanrights" hscharacterised
judicial behaviour
in many states of emergenc.y
(90), the judiciary
has
playedacourageous
and useful r6le inother cases. The Zamorano
habeascorpus decisioninArgentina,
the decisionof the Supreme
Administrative
Tribunal
inGreece,holding the purgeofthe judiciary
illegal, and the refqsalofPolishcourts to applypost-waremergency
statutes to the 1956workers'protestsarebut afewexamples (01).
Providing
additional
guarantees
oftheir independence
and jurisdiction
will surelyencouragemore courtsto followin this tradition.
The Legislature
and Other Institutional
Safeguards
More impoitant
thanany list offormal restrictions
onthe
power of the executive
during anemergency
is to maintain
governmental
and social institutions
able to counterbalance
its powers. The most
important
governmental
institutions
areobviouslythe legislature
and
anindependent
judiciary;
non-governmental
institutions
whoserale is
important inclcde thefree press,tradeunions, professional
organisa-
tios,popular organisations
and the churches.
Wichrare exceptions,
themostsysteriatic
abusesof human rightsoccurwhen all institutions
able to bringpressure
to bearonthe executive
torespect the formal
limits ofits power have beeneliminated.
Apatternwhich is unfortunately
familiaris oneinwhich the
executive
has assumedall legislative
authority,
purgedand intimidated
the judiciary,
forbidden
all criticism,
bannedor assumed controlof
professional
organisations
and tradeunions - inshort,has eliminated
mostor allof the mechanisms
of government
by consent.
In contrast,
evenwherethe emergency
is notof shortduration,
thepreservation
ofvital institutional
counterweights
has helpedlimit
the adverseeffectsof emergencies.
In NorthernIreland, the combined
effectofparliamentary
debateand questioning
ofministers,
freedomof
the pressand the activity ofnon-governmental
organisations
and
interest groupshas encouraged
continuing
reviewofgovernment
policies
and their effects.
Abuseshave beenpubliclydebated andsafeguards
designedtoprevent their recurrence
havebeen introduced.
A1978
reportby AmnestyInternational,
forexample,led tothe appointment
ofagovernment
commission
cninterrogation
practices
and the adoption
ofacomprehensive
setofsafeguards
against torture andmistreatment
(92). Similarly,
inColombiaactions by human rights organisations,
professional
organisations,
groupsofparliamentarians
and freedomof
thepress resultedinrepeated
denunciation
of tortureandotherabuses,
andcontributed
in somedegree to the 1982decisionto lift thestate
ofemergency
(93).
- 438-
Two concreterecommendationsmay bemade, the firstwith respect
to the legislature. There is no convincing evidencethat theexistence
ofanelected legislatureis incompatiblewith alegitimate stateof
emergency. Nations haveretainedalegislatureevenin timesofcivil
or internationalwar (94). In the rarecaseswheredismissalorsus-
pensionofaparticularlegislatureor national assemblymay bewarranted,
it shouldberestoredwith the briefestpossibledelayunderconditions
which ensurethat itis freely chosenand representativeor theentire
nation.
Secondly,duringastate ofemergency, priorityshould begiven
to preserving the viabilityof institutions such as the free press,
trade unions,professional organisationsand popularorganisations.
Whateverparticular restrictions onrightsmay bewarranted, their
cumulative effect shouldbe weighedcarefullyagainst theirpropensity
to underminethese legally recognised institutions,whose existenceis
necessary to prevent the executivefromacquiring,whether inadvertently
orby design,ade factomonopolyonpower. Aformal legalnormto
this effectshould beadopted,declaring thatthe government'srightto
suspendor restrict legal rightsunder astate of emergency isin turn
limited by the duty notto take anyactionwhichwill threatenthe con-
tinued existenceof afree press, tradeunions,and so on.
Other Limitationson EmergencyPowers
Two further recommendationsmaybe made. The firstis basedon
the exceedingly importantprincipleannouncedbythe EuropeanCommission
on Human Rights in Ireland v. The United Kingdom : the validity of
emergency measures depends not only on the existence of a legitimate
emergencyand the need for the measuresin question,but alsoon the
efforts made to ensurethat the measuresemployedwill notbeabused
(95). The principleshould beestablished indomesticlaw thatwhen-
ever ameasuresuspendingor derogatingalegalright is introduced,a
deliberate effort should bemadeto identifyand implementsafeguards
whichwould help to prevent its abuseor compensateits adverse effects.
When securityprisonersaredetainedor arrested,for example,the safe-
guardsdescribed in PartIII above shouldbeimplemented to prevent
tortureor mistreatmont. If there are compelling reasons for suspending
thedefendant's rightto cross-examineadversewitnesses,aprocedure
for testingthecredibilityof thewitness by in cameraquestioning by
the judgecould be adopted. If censorshipiq required,aboard of
indepenrdent personalitiescould be created to reviewitseffects on
freedomof the press, academicand artisticfreedom.
The second and f.nal recommendationconcerns the termination
of astate ofemergency. The terminationofastateof emergency
should automatically luad to full restorationofsuspended rightsand
freedoms. In addition,as soon as feasibleafterastate ofemergency
areviewshould bemadeofcontinuing consequencesof theemergency
measureswithaviewto identifyingand correctingorcompensating
continuing injustices. Exampleswould includeasystematicreviewof
sentencesimposedbycourtswhere fullconstitutionalguarantees were
notin effectorareviewof the possibilityofreinstatingpersons
wholostpostsonpoliticalgrounds.
- 439-
V. SAFEGUARDS IN INTERNATIONALLAWAGAINST
ABUSEOFSTATESOF EMERGENCY
International publicopinionand the international
humanrightsforawhich constitutean essentialelement ofthe
same, functionas asortof courtof last appeal withrespect
to grossviolationsofhumanrights. Where statesofemergency
havesubjugatedor sweptaway theessential safeguardsof the
ruleoflawandguarantees ofademocratic formofsociety,
particularly the independentjudiciary and elected legislature,
recourse to thecourt ofinternational opinionmay be the only
remedyavailable. The question which arises, then, is whether
international humanrights foraare capableofprovidingan
effective remedy. More concretely, for purposes of this study,
the question which arises is to what extent have international
forabeensuccessfulin controlling statesofemergencyand
whatsuggestionscan bederived from theexperienceof the countries
included inthis studywith regard to improving internationalcontrol
and supervision.
This questionmust be approached with realism. Withthe
exceptionofoccasionalpaperor technicalstates ofemergency,
whetherit is ademocraticgovernmentfacedwithan armed insurrection
oramilitarydictatorshipdependentuponforceratherthanthe
consentofthegoverned for survival, the mostpowerfulof motivations
is at work. In addition,the enforcementofthe international law on
emergenciesmust be evaluatedwithan awarenessoflimitations inherent
inthepresentst:age ofdevelopmentof the international legalsystem,
includingageneral preferencefor conciliationorpoliticalrather
than juridical methods for settlinqdisputes,ageneral lackof
effectiveways of applyingsanctionsand ageneral shortageof
materialresources.
Abecondexplanatoryremark is alsoin order :it is nct
possiblewithin the confinesof this chapterto considerin any detail
the jurisprudence ofthe relevantinternationalbodies. To pursue the
analogywithdomesticcourts, wewillnotseek to examine herewhether
thedecisions of theinternational tribunalare 'correct'oreven
whether the lawhas beencorrectlyapplied, butrather whetherthere
has been effective accessto the courtand the extenttowhich the
processofadjudicationhas helpedto vindicate therights ofthose
concerned. Specifically,four criteriawill be employed- theprompt-
ness of the review,the extenttowhichtherelevant norms ofinter-
nationallawwereapplied, theextenttowhich the factual situation
wasdocumented,and any evidenceof effectivepressureon thegovern-
mentto improve protectionofhumanrights,orcompensatepast abuses.
Internctional Norms ConcerningStatesofEmergency
Beforeattempting toevaluate theeffectivenessofinternational
mechanisms,the relevantinternationalnorms shouldbesummarised
briefly. The primaryinternational humanrightsinstruments that
expresslyrecognise the rightofstatesto derogate fromtheir
obligationsto protecthumanrightsduringtimesofemergency are
theEuropeanConventiononHumanRights, whichenteredintoforce
in1953,the InternationalCovenantonCiviland PoliticalRights,
whichentered into forcein 1976, and the AmericanConventiononHuman
Rights,whichenteredinto force in 1978 (96).
- 440 -
These threetreatiesdefine the right toderogate in
similarterms. Thecormmon elements are :
1. that the emergencybe onewhich "threatensthe lifeof
the nation" (97);
2. thatthe measureswhichderogate fromthe state's
obligations "be strictlyrequired by the exigencies
ofthe situation" (98);
3.that specifiedrightsnot be derogatedfrom (99);
4. thatderogationsnot beinconsistentwithanyother
obligationunder international law (100);and
5. thatpromptreports regardingderogationsbemade (101).
Allthreeof thesetreatiesalso contain the principle,whose
significance for tile right to derogation was conunented upon in Part I
of this chapter, that nothing in the treaty "may be interpreted as
implyingfor anyState ...any right toengage in any activity or
performanyact aimed at the destruction of any of the righ 3 or free-
doms recognised /therein/or at their limitation to agreaterextent
than is providedfor" in the treaty (102).
Twoofthem, the AmericanConventionand International Coven-
ant, also prohibitcertain formsofdiscriminationin emergency
measures (103).
Inmostrespects,the commonprinciplesprovide adequate
guidance togovernments concerningtheir obligationto respecthuman
rightsinemergency situations. Tile term"public emergencywhich
threatens the life of the nation"adequately conveys the exceptional
nature of circumstanceswhichare required in orderto justify
derogation (104). The term "strictly required by the exigencies
of the situatior' convoys clearly theobligation to weigh carefully
the need foreachemergencymeasure adopted and to abandonemergency
measuresand restore full respectfor humanrights as soonas possible
(105).
One recommendationmightbe made, however,with respect to
these substantivenorms. The instruments classifyas derogablea
number ofrightswhichreasons suggestsshouldnot be derogatedfrom
evenin time ofemergency. One of these is theduty of statesto
prohibitpropaganda forwar and "advocacyofnational,racialor
religious hatredthat constitutesincitementto discrimination,
hostilityor violence" (106). Therecansurelybe no typeof national
emergency in whichadvocacyof national, racialor religioushatred
shouldbe permitted. Indeed, the importance ofprohibiting this type
ofpropaganda is enhanced in times of emergency, as history is replete
with emergenciesmarkedbydiscrimination, if not actualviolence,
againstracial,religious and nationalminorities. Classificiationof
theprohibitionofwarpropagandawouldalso seemappropriategiven the
prohibitionofwar in the UNCharter (107).
Statesofemergencyalso sometimes resultinrestrictionson
the rightsofreligious, culturalor linguisticminorities (108). In
retrospect,these restrictionsinevitably appearexcessive,tile product
- 441 -
ofxenophobic fears. It maybe that additionalregulationofthese
rightswouldbe necessary in rare instances,butderogationfrom the
obligation torespect these rightsdoesnot seemtobe warranted.
As the preceding chaptersmakeexceedingly clear, itwould be
desirableto makenon-derogable the principlethat "Allpersonsdeprived
of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person". Similarly, as explained in
detail in Part III of this chapter, it is important to clarify that
a large part at least of the due process rights should not be derogated
fromunderany circumstances.
While it is understandable that freedom of expression be
considered derogable, there can be no valid reason for derogating from
the right to hold opinions without interference. It is sometimes
argued that there :an be no infringement of the right to hold opinions
unless the opinion is first expressed. However, the better view is
that when an affirmative effort is made to discover the individual's
beliefs, to classifypersonson the basis of their 'reliability'or
pIeU1Ld a'Z'',a Z' .,Pic U l deutor tons of thousands of
persons in Uruguay (109), then what is at stake is the right to opinion.
Similarly, although emergencies may require interference with the
privacyof one's home orcorrespondence,it is difficult to conceive
of reasons which might warrant arbitrary or unlawful attacks on one's
honour or reputation. Yet, as we have seen in the chapter on Colombia,
such attacks do occur during states of emergency (110).
The relative weakness of international mechanisms, as we have
said, highlights the importance of establishing clear prospective guide-
lines as to what rightsmay be affected byastateofemergencyrather
than relyingonretrospectivereviewof the necessityofmeasures
employed. Considerationshouldbegiventoestablishingmore compre-
hensive guidelines as to thoserights fromwhichderogationshould never
be permitted.
Suchguidelines could takeone of several forms :protocolsto
existinghuman rights treaties, abodyofprinciples adoptedby the UN
orregionalorganisations,oranadvisorystatementor setoflegal
presumptionsadopted by the bodieswhichsuperviseimplementation of
thepresenthumanrights treaties, the HumanRights Committeeand
European andAmerican Human RightsCommissions.
Threeprincipleconsiderations shouldbeborninmindin
draftingmorecomprehensive guidelines :the need toestablish the
non-derogabilityof the rightsmentionedin the immediatelypreceding
paragraphs; the need toestablishclear guidelines fortheprotection
ofdue processrightsin tires ofemergency; and thedesirabilityof
recognising in theUNand Europeansystems thenon-derogabilityof
all rightsrecognised asnon-derogable in theAmericanConvention,
notably the rightsofthe child, the rightsofthe family, theright
to nationality and the right to participateingovernment.
ModalitiesofInternationalControl
In approachingthisquestion,it willalsobe useful tobear
inmind thefour basic ways inwhichinternationalnormsregarding
statesofemergncymaybe applied :namely, throughinter-state com-
plaints, throughindividualcomplaints,throughthe generalsupervisory
- 442 -
powersofbodies entrustedwithreviewingtheimplementationof
treaty obligations, andthroughwhatmay bedescribedas political
processesin bodiesofmore generalcompetence. Inter-state com-
plaintsare governedby article24 of the EuropeanConvention,
article 45 of the AmericanConventionand article 41 of the Inter-
national Covenant,and the rightof individualpetitionis provided
for in article25 of theEuropeanConvention, article44 of the
AmericanConventionand theOptionalProtocol to the International
Covenant.
The general supervisory powers cf the HumanRights Committee
consist of periodicreviewof reports submitted byStates Parties
on themeasuresadoptedwhichgive effectto rights recognisedinthe
Covenant on the progress made inthe enjoymentof those rightsand
on "factors and difficulties,if any, affecting the implementation
of the Covenant" (111). Such reports are normallydue everyfive
years, but the Committeealsohas the right to request supplementary
reports "wheneverit deems appropriate" (112), a power which might be
employed when a State Party declares a state of emergency which might
involve derogation from the Covenant. In the Inter-American system,
the Inter-American Conission on Human Rights undertakes comprehensive
studies of the humanrightssituation in specificcountrieswhenever
informationreceived fromany reliablesourceindicates the need for
such a study. Technically, although the Inter-AmericanCommission is
one of the two bodies entrusted with supervising implementation of
the nerican Convention, the general supervisory powers used in the
preparation of these "country reports" are derived not from the Con-
vention but from the Statite of the Commission and the OAS Charter.
However, the Commission's exercise of this function has more in common
with the Human Rights Committee's general supervisory function under
the Covenant thanwith the politicalprocessesdescribedbelow. There
is nosuch general supervisory functionin the Europeansystem; the
Commission andCourt can actonly after receiptofaninter-stateor
individualpetition.
The fourth basic typeofinternationalcontrol is thegeneral
supervisory control over human rightsquestionsexercisedbybodiesnot
expresslyentrustedwith the responsibilityofreviewingthe observance
of humanrights treatiesby StatesParties. Examplesinclude the
investigations into humanrightsviolations in Chile,IsraelandSouth
Africaauthorisedby the UNGeneralAssembly,the procedure for
investigatinggross andsystematichumanrightsestablished byECOSOC
Resolution1503, or thedebates onthehumanrightssituationinTurkey
which have beenconducted inthe EuropeanParliament. Forthesakeof
brevity,this type ofcontrolwillnotbe consideredhere.
SuccessfulAttempts at InternationalControl
COLOMBIA :
Of the twelvecountries included in thepresentstudy, itmay
be saidthateffortsto applyinternationalnorms regardingstatesof
emergency have metwithadegree of successin fivecases :Argentina,
Colombia,Greece,NorthernIrelandandUruguay.
The effortsofthe HumanRights Committeetoencouragecom-
pliancewithobligations under the InternationalCovenanthavebeen
relatively successful - withinvery considerablelimitswhich willbe
describedbelow - in the casesofColombiaandUruguay.
- 443 -
Promptand thorough reviewof thestate ofsiegein Colombia
was preventedinitially by the government's
reluctanceto cooperate
fullywith theHumanRightsCommitteebyproviding timely anddetailed
information
as required by articles4.3 and41 ofthe International
Covenant. Although the stateofsiegewas declaredinOctober1976,
noticeofderogationwasnot made untilJuly 1980 (113). Its'
"statereport",due
inMarch 1977, was submitted inNovember 1979 (114).
Neitherwas as comprehensive
as the Covenant requires.
Thenotice of
derogationreferred onlytomeasures affectingfreedom ofexpression
and assembly,although the actualeffects ofthe stateofsiege were
much broader (115). Therelevant portionof the state report,inter
alia, makesno attempt topresentevidence oforeven explainthe
existence in1979of athreat to the lifeof thenationnor the
necessityfor particular emergencymeasures.
Nevertheless,
theCommittee's
records of its July 1980meetings
with the representative
of Colombia reveal an awareness that a series
ofstatesofexceptionhad beenin effect for thirtyyears, and aseries
of questionswereput to the government's
representative
aboutabroad
range of mattersactually affectedby the state ofemergency,such as
theexpansionofmilifary jurisdiction,
thesuspensionofhabeas corpus,
the due processrights ofcriminal defendants,
the independence
ofthe
judiciary, and the availability
ofaneffectiveremedy forpersons
whoserights havebeenviolatedbypublicofficials.
The representative
of the government
made a number of impol-tant
pledges to the Committee,
including a promise that the state of siege
wouldbe lifted"soon", thatthe qDvernmentwould submit alawof
amnesty to the legislature
and thjt unspecified
reforms in the judicial
systemwould beundertaken.
This undertaking
is unique in thehistory
of the Human Rights Committee, and probably unique in the history of
international
human rights.
TheCommittee's
efficiency inexploring factual and legal
issues related to the emergencywas undoubtedly
due in larj. partto
individual communications
pendingat the time Indeed, the disturbing
information
contained in one of themaboutalawgivingsecurity feces
widelatitudein the useof lethal force apparently
contributed
to 'he
Committee's
decisionto givepriority to its consideration
of Colombia's
report, once itwas received.
One also suspects that the final decisionofthe individual
complaints
wasdelayedin order to give thegovernment
sufficient
opportunity
to carryout thesepledges and obviate th" n-dforacon-
demnationby theCommittee in the sensitive individualcoats. Only
after thepassageof nearly twoyearswithout fulfilmentof these
promisesdid the Committee issuedecisionsin two ofthe fourpending
communications.
In one, the Committeefound aviolationoftheright
tolife, anon-derogable
right,and took the unusualstepofmakinga
direct recommendation
that the relevantlawbe amended (116). Inthe
other case,whereaviolationwas foundoftheright to appealagainst
criminalconvictions,
the Committeedecided thatthe governmenthadnot
submittedsufficient factual information
topermit theCommittee to
makeanindependent
evaluationoftheexistenceofa"threatto the
lifeof thenation" (117).
- 444 -
Duringthese two yearseffortswere made to fulfil thepromises
madeto the Committee. InJuly1980, thesame monththe government
representativesmetwiththe Committee,aproposedlaw ofamnestywas
submittedtothe legislature. Thepresidentmadeapublicpromise that,
if the amnesty was asuccess,"the nextstepwouldbe lifting thestate
ofsiege and in consequencereturn tocomplete normalcy" (118). However,
the lawmadeexceptionfor certaincategories ofpoliticallymotivated
offences and the implementation of the amnesty was conditioned upon the
surrender of arms, within the space of four months, by those involved
in armed groups. The conditions were not accepted by the groups in
question and the amnesty law failed at that time to achieve its purpose.
In June 1982, following discussions with the leaders of the
principaloppositionguerrilla force, the state ofsiege was lifted
(119) abrogating inter alia the two decrees judged inconsistent with
the Covenant and fulfilling, albeit after considerable delay, the
piomise made to the Committee in 1980. Some months later, in November
1982, an unconditional lawof amnestywaspresented to the legislature
and adopted (120). With regard to the pledge to undertake judicial
reforms, the lifting of the state of siege ended the trial of civilians
in military courts, thus eliminating with a single stroke many of the
abuses complained.of (121).
In April 1980, the government of Colombia invited the Inter-
American Comission on Human Rights to undertake A mission in loco and
investigate the humanrights situqtion prevailing in the country. The
invitationwas unique in that itwas motivatedin part byaprior
investigation by Amnesty International, which denounced the practice
of torture in Colombia, and also in part by the demands of a guerrilla
group which demanded the Commission's investigation of certain humian
rights problems as a condition for releasing a group of hostages (122).
An extensive report on the hiuman rights situatirn was published
by the Commission in June 1981. In it, theCommission is more cautious
than usual in drawing legal conclusions (123) and unusually reticent
inpublishingthe factualdetails of allegations ofgraveviolations
of human rights (114) . Nevertheless, the Commissiondidinclude, inter
alia, thatthere had beenviolations of the right to lifeand practices
oftorture, andthatgovernment investigationsof these criminalacts
hadbeen inadequate.
It is seldompossible to determinewith anycertaintythe
reasons whichcause agovernment to modifyor abrogateastate of
emergency,or the relativeimportanceof the factors whichenter into
its decision. In the caseofColombia, thefreedomofthe press,the
existenceofanelectedgovernmentand legislature and an independent
judiciary, the freedomofactionenjoyed by humanrights activists and,
of course, the existenceof considerablepublicopposition to thestate
of siegewere factors of primary importance. However,the distinction
between internationaland domesticfactors can beoveremphasised;inter-
nationalpressuresdonot exist in isolationfromdomesticsocial and
politicalprocessesand mayplayaconsiderabler6le in contributing
toor reinforcingdomesticpressures for accordinggreater respectto
humanrights. Thiswouldseemtohavebeenthe case in Colombia,where
thereport ofAmnesty International, the activities of the Inter-
AmericanCommission and the decisionsofthe HumanRightsCommittee
receivedconsiderablepublicity. As for thegovernment's sensitivity
to internationalopinionper se,there is abundantevidenceof it,
- 445 -
rangingfromthe government's
mentionofAmnesty International's
report
as afactorindecidingto invitethe Inter-American
Commission,
to the
repeatedreferences
in the government's
communications
with the Inter-
AmericanCommission
and the Human RightsCommittee
to Colombia's
reputation
as ademocratic
countryrespectful
ofhuman rightsand to
the promises made before the Human Rights Committee.
Thus, despite
the government's
initial reluctance
to be forthcoming
with international
bodiesregardingthe stateof siege, the slownessof thedeliberations
of the international
bodiesand their failure to resolvemore than a
fewspecificissues regarding
the legalityof emergency
measuresin
international
law- despite these academicobjections
the Colombian
casemust be considered
asuccessful
instanceofinternational
review,
first becauseof tile substantial
pressurewhichwas generatedfor major
changesinpolicy,and second becausethe changes actuallyoccurred.
URUGUAY :
The review of the state of emergency in Uruguay by the competent
international
foracqnalso be considered
aqualified
success tothe
extentthat itmade known in anauthoritative
way the factsconcering
Uruguay's
violations
of international
law. However, its effectupon
the government
appears to ha-,e beennegligible.
The Inter-American
Commission
adopted its firstreporton
humanrights in Uruguayunder the stateofemergencyin early 1978,
aftermore than four years ofserious humanrights violations.
Sub-
sequentreports werepublishedin 1979, 1980and 1982. The reports
are not as comprehensive
as others the Commission
haspublished,
as
Uruguayhas never givenpermission
to conduct anonsite investigation.
Althoughthe inclusionofaminiature
'countryreport'offifteento
twentypages inthe Inter-American
Commission's
annual report tothe
OASGeneral Assembly does not have the same impact on public opinion
as the publication
of areportlike that onArgentinaorColombia,
this maybe compensated
toadegree bythe repeatedattentionto human
rightsviolations
in the country yearafteryear. Similarly,
what the
Commission's
decisions
lackin termsofcomprehensiveness
and judicial
rigour is compensated,
inpart,by its c'earand detaileddescription
ofsomeaspectsofthe human rightssituationand the candourof it-
analysis.
In 1980,for example,it recommended
that the government
"amendor repeal the lawsof exceptionwhich,as has beenpointedout
in this report,oftenplace serious limitations
onhumanrights in
Uruguayand in somecases have led to manifestabuses,as for example
the limitations
on the rightof freedomof association
and assembly,
politically
motivated
cancellation
of retirement
privileges
andrefusal
to issuepassports
tocertain Uruguayans"
(125). Note that inthis
paragraph,
theCommission
qualifies as "manifestabuses"the effects
ofthe stateofemergency
oncertain rightswhich arederogable
in
international
law. TheCommission
has alsocriticised
notablytorture
andviolations
ofthe rightto life, kidnapping
ofcitizensabroadand
theabsence
of representative
democracy.
TheHumanRights Committeehas alsohadmany occasionsto
review theUruguayan
stateofemergency
andits effectsonhuman rights,
bothinconsidering
individual
communications
and in considering
Uruguay's"statereport"underarticle40ofthe International
Covenant.
Tobe sure, seriousobstacles
have beenencountered
in the Committee's
effortsto promotecompliance
with thenorms of the Covenant.
With
respect to individual
communications,
the government's
replies havebeen
- 446 -
tardy andhave notcontainedasageneralrule evidentiarymat-
erialrequested by the Corrmittee, suchas courtrecordspertaining
toimprisonedpersons. Moreimportantly, thegovernment hasnever,
as far as is known, compliedwith the Committee's recommendations
(126)whereafinaldecision adverse to ithas been reached,
althoughin one case themattercomplainedof wasresolved before
reaching a decision on the merits (127).
With regard to the general supervisorypowersof the
Committee,Uruguay'sreportunder article 40, due in 1977, was not
receiveduntil 1982 and containedlittleinformationabout the
effect of the state of emergency on human rights (128). No notice
ofderogationwas madeuntil 1979, andeventhen itdid not contain
the informationrequiredby article 4(3) of the Covenant (129).
Mostimportantly, the state ofemergencyhas remained inforce
and theprotectionafforded fundamentalrights has not improved
appreciably (130).
In whatsense,then, have theCommittee's activitiesbeen
productive? Fromits firstdecisionunder the OptionalProtocol
in 1979 toApril 1982, theCommitteehas publishedsome twenty
decisionsin individualcases concerningUruouay. Fvery case
decided thus far hasbeen related co the state of erergency. With
its habitual careful legal analysis, the Committee has found viola-
tions of awidevarietyof rights, includingtheprohibitionof tor-
ture and inhuman treatment, freedom of opinion, expression and
association, the rights to a passport, the righ to take part in
publicaffairs andvote inelections, theprisoner's right to have
visits by his family, the prohibition of retroactive application of
penal laws, the right of an arrested person to be brought promptly
beforeajudge, the righrto challenge the legalityof imprisonment,
the right to counsel of cne's choice, the right to communicate with
counsel,the right to be promptly informed of the charges, the right
to adequate time and facilitiesin the preparationofacriminal
defence, the right not tobe forcedto incriminateone's self, the
right to atrial withoutunduedelay, theright to bepresent at
trial, the right toapublic trial, the rightto apublicjudgment
and the right to be released fromprisonwhenthe termofimprison-
menthas beenservedor whenacourt hasorderedone'srelease.
Important as the Committee's pronouncement of these legal
conclusions is, itshouldnotobscure the independent value of the
subsidiary function of fact-finding. TheCommittee'sdecisions on
Uruguay, by reasonof theirfaithfuldescriptionoffactual allegations
and directapproachto factualissues, constitutearichand irreplac-
able sourceof information on the repressivepracticesprevailing in
that country. Sinceinternationalmethods for enforcingcompliance
withhumanrights norms remain in anacute stage ofunderdevelopment,
the fact-findingfunctionassumes additionalimportance,especially
whenthe facts are set out insuchdetail withaclear resolucionof
the issues.
WhenUruguay'sreportunder article40was finallymade in
early 1982, the Committeedecided toconsiderit immediately at its
next session. The recordsofthesemeetingsshowthat theCommittee
waswell informedaboutlaws andpractices relatedto thestateof
emergency,and confronted the governmentrepresentativessquarely
withquestions or. all themostimportantinternational legal issues
- 447 -
the justificationforastate ofemergency perse, the necessityfor
specificemergencymeasures,violationsof non-derogablerights and
non-compliancewith noticeofderogationrequirement (131). This
diaiogue presumably constitutesadegreeofpressure for the lifting
of the emergencyand improvedprotection ofhuman rights, justas
Uruguay'sparticipationin thesemeetingsand the procedureconcerning
individual complaints - as wellas the failedconstitutional referendum
of 1980- are evidenceof adegreeof sensitivity tointernational
pressure.
Despite the shortcomingsdescribedabove,it may be said that
the Committee, in its review of the state of emergency in Uruguay, has
been as effective as an international tribunal can be in the circum-
stances, i.e. given the absence in international law of effective
enforcement machinery, the lack of subs;tantial commitment on the part
of the government to the protection of human rights and the lack of
domestic opposition capable of forcing a drastic change in human rights
policy. However, one suggestion Ls to how the Committee's effective-
ness might be improved will be made below.
Apart from the efforts of the Inter-American Commission and
Human Rights Committee, the state of emergency in Uruguay has been dis-
cussedonmany occasionsby the ILO and thepressureresultingfromILO
procedures has been responsible for somemodificationsofadraft law
ontradeunionrights (132).
ARGENTINA :
Like Colombia and Uruguay, the human rights situation in
Argentina was reviewed by the Inter-American Commission on Human Rights.
As in the caseof Colombia,this reviewtook the formofavoluminous
'countryreport' based onan on-siteinvestigation
by acommitteeof
personsserving intheir individualcapacities. Applying the same
criteria employed above - the promptness of the review, the extent of
documentation of tha factual situation, the extent to which relevant
international legal norms are applied and evidence of effective
pressure for change - one might conclude that this review should be
consideredonly relatively effective.
Although there was ast-te ofsiegeineffectpriorto 1976 and
humanrightsviolations were reportedduring thatperiod (133) the
appropriatepointof referencefor judgingthe promptnessofinter-
national reviewshould be theMarch 1976 military coup which resulted
indrastic transformationof the legal, socialandpolitical situation.
The Commission, in its Fourty-thirdSession (January- February1978),
decided to make anin-depth investigationof the humanrights
situationinArgentina. Permission ofthe governmentto realisean
on-site investigationwasreceived inDecember 1978,the on-sitevisit
occurred inSeptember 1979and the reportwas adopted inApril1980.
However, the conclusionsofthe committeewhichmadethe on-site
investigationswere, it is understood,communicatedto theMilitary
Juntabefore thecommittee leftArgentina. This is slowin comparison
with the reactionofthe internationalcommunity tothe 1973 emergency
inChile- where the Inter-AmericanCommission's initialreportwas
completed withinoneyear ofthe eventand theUN's initialinvestigation
withintwo years- and it iscertainly slowviewedfromtheper-
spectiveof thevast numbersofpersonssufferingseriousandoften
irreparableviolations oftheir fundamental rights. Unfortunately,it
- 448 -
cannotbeconsideredslowfromthe perspective ofthe normalresponse
timeof internationalbodies, as the othercases included in this
study illustrate.
It is suggested that the time withinwhich the Inter-American
Commissionreplied to the Chi-leanemergency, i.e.approximately six
monthsbeforedecidingto undertakean investigationand afurther
sixmonths to completean initialreport, shouldbe adoptedas a
standardby all internationalbodies exercising thistype ofsuper-
visory function, at theleast whererepeateddpnunciationsofviolations
of torture, theright to life orothernon-derogable rights have been
received.
TheCommission's success in applyinginternational norms
governing the protection of human rights in time of emergencies
mustbeviewedin the lightof Argentina's failure toratify or
accede toeither the AmericanConventionor the International Coven-
ant, which containprecisestandardson the matter. Thus the principles
set forth in these instruments (and others) are applicable only to the
extent theyare consideredcustomaryinternational law.
Thequestionof whatncrms are applicableis addressedrather
obliquely insub-chapterI.Eof thereportonArgentina,entitled
"HumanRights,Subversionand Terrorism". In it, the Commission
seems to adopt twoprinciples which correspondroughly to two of the
most fundamentalnorms recognised inthe relevantinternational instru-
ments :the principle that derogationis justified only inspecified
circumstances of exceptional nature,andthe principle thatcertain
rights maynever be derogated from. The firstprincipleisexpressed
in these terms :"In the life of any nation, threats to the public
order or the personal safety of its inhabitants, by persons or groups
that use violence, can reach such proportions that it becomes necessary
temporarilyto suspend the exerciseofcertain humanrights".
The secondprincipleis expressedin the followingterms
"However, it is equally clear that certain non-derugablerights can
neverbe suspended,as is the caseamongothersofthe rightto life,
thu right to personalsafety orthe right todue process". It is
interestingtonote the inclusionofdueprocessas anon-derogable
right,as it is not sodesignatedby the threeprincipal international
human rights treaties, i.e. the Americanand EuropeanConventions and
the InternationalCovenant.
Not mentionedin theCommission'sdiscussionsof the
principlesconcerningderogation fromhuman rightsobligationsare
theprincipleof strictnecessityand theprincipleofnon-discrimination,
,or certainqeneralprinciples set forth in the UniversalDeclaration
an.1 particularly relevant tostates ofemergency,namely, that all
restrictions on humanrights mustbe establishedby law,consistent
with the requirements of ademocraticformofsociety, andnot "aimed
at the destruction"ofany recognisedhumanright.
More important for assessingthe effectivenessof theCommission's
reviewof the stateofsiege inArgentinais theextenttowhichthe
actions ofthegovernment are actuallymeasured,implicitly or
explicitly, againstinternationalnorms.
- 449-
Themost strikingomissionis the failure to apply the first
principlespelledout bythe Commission itself, thatis, that (i)
temporary suspensionof the exercise ofcertainrights may be justified
by (2)athreat to the publicorder or the personalsafetyofthe
inhabitants (3)bypersonsor groups usingviolence (4)if the threat
reaches certain unspecified "proportions".
Rather than apply this
four-part test oflegitimacy, the Commissionnotes noncommitally in
Chapter I. Ethat it "has come to have an adequate understanding of
the violence and social unrest that devastated Argentina during the
years inundiately prior to the government takeover by the current
authorities, as well as of thesporadic terroristacts that still appear
to persist". Afootnote listsanumberof terroristincidents, only
three of which, involving a total of five deaths, occurred after the
yearin whichthe coup tookplace. The formal conclusions do not
address the legitimacy of the state of emergency per se and the
recommendations
do nomore thansuggestdeferentially that the govern-
ment"considerthe possibilityoflifting tile stateof siege,in view
of the fact that,accordingto repeatedstatementsby theArgentinegovern-
ment, thereasons forwhich it was imposed no longerexist" (134).
Withrespect toderogablerights, the Commissiondoesexamine
the effectof the state ofsiege on anumber of such rights, butdoes
not apply the principleof"strict necessity" (135) nordoes it in
factexamine the necessityfor any oftherestrictionsdiscussed in the
report. While the criticisms ofrestrictionson personal libertyare
fairlyharsh, and rightfully so, tile Commission's commentson the
restrictions imposedon otherderogablerights are undlymild (136).
Religious discrimination
is also examined, the Commissioncon-
cluding thattile governmenthad nodirectresponsibility
for anti-
Semitic incidents, but suggestingthat thegovernmentdidhave an
obligation to take moreaffirmative steps to preventandpunishsuch
discrimination.
TheCommission's finalomissionin tile applicationofinter-
nationalnorms concernsnorms applicableto all restrictionsonhuman
rights,including those resultingfromstatesof emergency, thatis,
theprincipleof legality,ofcompatibility
withdemocracyandthe
illegitimacyofacts "aimedat the destruction ... of humanrights"
(137).
Althoughthe unconstitutionality
ofthe entirestateofsiege,
the completeincompatibility
ofthe presentformofgovernmentwith
principles ofdemocraticgovernment, the lackofplans torestore elected
government,evenoncenditions dictatedbytheCommandersof the armed
forces, and thegovernment'savowed intentionofpermanentlyeliminating
fro:n the nationcertain ideologies andpoliticalformations are
obvi-uslyiocompatiblewiththese fundamentalprinciples,theCommission
avoidsdiscu.;sion ofthe significance in internationallawofthese
basiccharacteristics
of thepresentrdgime.
The singlemostoutstandingaspect of thereport,however,is
its extensivedescriptionofviolations ofcertainnon-derogable
rights,
particularlydeaths,disappearances
and torture. Since the illegitimacy
ininternational lawofany violationofthese rightsis self-evident,
thedistinctionbetweenestablishingviolations ofthese rightsand
discussing therelevantprinciple is immaterial. TheCommission's
descriptionofviolationsofthese rights, includingreproductionin
- 450 -
extensoofmovingpersonal testimonyand frankdiscussion ofgovern-
mentresponsibility, the magnitudeofthe problemand the unavail-
abilityof judicialremedies alone marksthe Commission'sreportas
an importantaccomplishment. The accomplishment isthat muchmore
impressive in that the government concernedis one of the most
influential inthe Organisationof AmericanStates.
TheCommission's reporton Argentina, like thatonUruguay,
gives avery full andauthoritative accountof theviolationofhuman
rightsoccurring in thecountry, butwithoneexceptionit appears to
have had littleorno effect uponthe general situationofhumanrights
violations in the country S)The exception, however, is one of outstanding
importanceandprobably constitutes the greatestsuccessyet achieved
anywherein the intendedprotection ofhumanrights.
Theexceptionrelates to thepracticeof 'disappearances',a
euphenismfor illegal kidnappingbyor with the connivance ofthe
security forces, leadinginmostcases to torture and
execution. Forsome yearsprior to the Commission's report,disappear-
ances had beenoccurringat arate ofwellover1,000peryear.
Numerousinternational non-governmentalreports had describedthese
disappearancesand attributed themto the security forces and topara-
militaryorganisations workingin leaguewith the security forces.
Thegovernment dismissedthese reports as 'Marxist'propaganda. The
reportsdid,however, serveto stimulateinternational interestwhich
led to the investigationand Leportby the Inter-AmericanCommissionon
HumanRights. Whenthis reportmade the same findings, withdetailed
documentation,the governmentcould no longerdismiss them. The effect
was immediateand in theyear followingthepresentationofthe findings
to the government, i.e.in 1980, thenumber ofdisappearancesdropped
to under60, and thereaftercontinuedtodwindleuntil thepractice
appearsnow to haveceased.
Superficialconclusions maybe drawnfromthis case. Among
these are that :
- reportsby inter-governmental humanrights bodiesare
likely to carrymoreweightthanthoseofnon-governmental
organisations;
- non-governmentalreportscan beofgreatesteffectwhen
they stimulateinvestigationandreportsbyinter-
governmental bodies;
- inter-governmental bodies are likelyto bemosteffective
when theyare composedofpersons appointedandserving
intheirpersonalcapacity;
- it is not necessaryfor inter-governmentalbodiesto be
constitutedbyor tooperate underthe terms ofan inter-
nationalconvention. Indeed,there can be advantages in
the greater flexibilityandsimplicity ofprocedures
establishedin aless formalmanner.
- 451 -
GREECE
Twostatesofemergency consideredby theEuropeanCommnission
onHumanRights,Greece andNorthern Ireland,mustalsobe considered
successful examplesof the applicationofinternationalnorms. The
jurisprudence of theEuropeanCommissionandCourt on theseandother
caseswhere the rightofderogationhas been invokedhas been analysed
exhaustively elsewhereandwill only bedescribed brieflyhere.
TheGreekcase maywell be consideredthe high-watermarkof
internationaljurisprudence concerningstatesof emergency, first
because itis the onlytime that ajudicialorquasi-judicial inter-
national tribunal applyingthe provisionsofahumanrights treatyhas
madeafindingthat the emergencypurportedlyjustifying derogation
from the treatyaid not in factexist (139);secondly,becauseitcon-
stitutes the only timean internationalbody has come closeto applying
aneffective sanctionagainstagovernmentviolatinghuman rights under
pretextofastate ofemergency.
Asstated above, the complaintallegedviolationsofboth
derogableand non-derogable rights. Indetermining whetherviolations
on the formermight be justifiedby virtue of thestate ofemergency,
theCommission reliedon the testannouncedpreviously in the Lawless
case :
"the natural andcustomarymeaningof the words 'other
publicemergency threatening the life ofthe nation'is
sufficiently clear; theyrefer toan exceptional situation
of crisisoremergencywhich affects thewholepopulation
and constitutes athreat to theorganised lifeofthe
community of which the state is composed" (140)
Although thesame basictest was employed, newelements were
added. First, the Commissionstressedthat the governmenthad the
burden ofproving theexistenceofthe right toderogate. Second,it
relieduponevidenceofthe efficiency of thepoliceinmakingarrests
as evidence thatthere was no presentor imminentthreattothe life
of the nation, thus lendingits supportto the oft expressedviewthat
anemergencymustbeemployed as alastresort, i.e.whenno less drastic
measuresare aveilableorsufficiently effectiveto copewith the
specificdanger threatening the society.
The relative speed withwhichthe internationalcommunity
intervened is anotherpositiveaspectofthiscase. The initial com-
plaintby four Europeangovernment was -ado in September 1967, five
monthsafter the coup. After hearingnumerouswitnesses, conducting
an on-siteinvestigationand conductingaseries ofdiscussions aimed
atproducing a 'friendlysettlement', the Commissionproduced acom-
prehensive report in November1969,just overtwoyearsafterbeing
seizedof the complaint. TheCouncilofMinisters' meetingto con-
sider sanctions,whichresultedinGreece'sself-imposedexclusionfrom
theEuropeanCommunity, tookplace thefollowingmonth.
Althoughtheeffectofinternationalpressureonhumanrights
policies is seldomclearand uncontroverted,it doesseemreasonable
to believethatGreece's isolationfromthe EuropeanCommunitywas an
importantstartingpoint for themountingpressureswhich eventually
led tothe military'sdecision fiveyearslater to surrenderpowerto
civiliangovernmentandpermitareturntodemocracyand fullrespect
for humanrights.
- 452 -
NORTHERNIRELAND
The emergencyin NorthernIreland has come beforethe European
Commission byvirtue ofone inter-statecomplaintandmorethan three
hundredindividualcomplaints (141). Considerationofmostofthe
individualcases was suspendedpendingresolutionof theinter-state
case. Thedecisionof theCommission in Urelandv.TheUnitedKingdom
was announcedinFebruary 1976, after morethan four years ofdel-
iberationsand attempts to reachafriendly ;ettlement. The judgment
of the Courtcame twoyears later, inJanuary 1978.
Although the existence of an emergency threatening the life
of the nation was not made an issue by the complainant government,
the Commission examined the issue and made its own finding of fact
that such an emorgencydidexist. As in theGreek case,it examined
in greatdetail the chronologyof events, including statistics
regardingacts of violence atdistinctperiods oftheemergency, the
political, social and even psychological dimensions of the emergency
and the r~le played at each stage of the crisis by all the parties
involved : the governments of Northern Ireland and of the United
Kingdom, the Protestant and Catholic communities of Northern Ireland
and the various par,-military organisations. Observing that "the
violencewas ...of extraordinary dirrensions" and "there has been
nothing precisely comparable in the nistory of the Convention" (142)
it concluded that the existence of a threat to the life of the nation
was proved. The Court, without substantive discussion of the issue,
agreed.
Passing by the issue of whether certain emergency measures
were "strictly required", the Commission again inquired, as it had in
theGreek case, whetherordinarymethods for maintainingpublicorder
were ineffectual. For example,it concludedthat detainingindividuals
for purposesofinterrogationwas necessarybecause of (1)the acute
lack of intelligence about the Irish Republican Army, (2) the lack of
cooperationby the population,and (3)the physicaldangerto the
securityforces in conductinginterrogations in the streetor other
publicplace.
Ofparticular importanceis the Commission's statementin
this case that, evenwhere there is aprovenneed for emergencymeasures,
"obligationsunder theConventiondo not entirelydisappear"andthe
limitationofcertainrights "may requiresafeguards againstthe
possibleabuse, or excessiveuse,ofemergencymeasures" (143).
Apart fromthese contributions to jurisprudence onstatesof
emergency, the overall effectsof thecase onrights of personsliving
under the emergencycan beevaluatedpositively. Duringthecourse of
proceedings, compensation had been awarced to nearly all the victims
of inhumantreatmentand thegovernment hadmadeaformal undertaking
never again to resortto the "five techniques". In fact,therehadbeen
alargepublicoutcry against the fivetechniques as soon as theiruse
wasdisclosedin 1972, and the emergency had neverrestricted the
individual'sright to seekcompensationfor violationsof hisphysical
integrity. It is perhapsnot insignificant,however, thatofall the
casesofphysicalabuse inthe interstate complaint,compen-
sationwas awardedin the vastmajority withoutajudicialawardof
damages.
- 453 -
Changes in the treatmentaccorded imprisonedmembersofpara-
militaryorganisations
as aresult ofamorerecent individual
complaint
hasalso beendescribedin Chapter above (144).
As in othercases, it is notpossibleto saywith certaint. the
,
extent towhichinternational
supervision
has encouraged
orinfluenced
the government ir.itsefforts - whicharequiteevidentin this case-
torefine continually
the emergencymeasures,to find waysofpreventing
theirabuse andto compensate
their victims. The government's
coopera-
tionwiththe international
authorities
suggeststhat, in this case, its
influencewas considerable.
FailuresofInternational
Control
We shallnowproceed to examinethosecaseswhere attempts to
inducecompliancewith international
normsonstatesofemergencies
havebeenentirelyor relatively
unsuccessful,
to attemptto identify
the reasons for the failureof international
controland to extracta
seriesofrecommendations
foi uu::bjting abusesofstates ofemergency
on the international
level.
The mostfundamental
failure is the totalabsenceofinter-
nationalconsideration
of statesofemergencies
in fourofthe countries
included in this report - Ghana,India,MalaysiaandThailand- for the
simplereasonthat theywerenot partiesto anyof the basichuman
rights treaties at the pertinent times. Thepointis too obvious to be
belaboured,
butin formulating
acomprehensive
programme forpreventing
abuses ofstatesofemergency, the importance
of promotinguniversal
ratification
of these treaties should notbe overlooked.
It is not
fortuitous
that such alargepercentage of the countriesincludedinthis
study remainoutside the scopeof thesehumanrights treaties and the
mechanisms
created to promotetheir implementation.
Numerousother
examples come to mindof instanceswherestates ofemergency have
eluded international
controlfor this reason, for instance,Brazil,
Bangladesh,
Egypt, Israel,Pakistan, thePhilippines,
Somalia, South
Korea,Spain,SudanandZimbabwe.
Inothercases, the issue has not beenpresentedto the compe-
tentinternational
body even though oneof the human rights treatieshas
been ratified. None of the numerousstatesofemergencydeclaredin
Turkeyduringthe 1960's and 1970'swasevenbroughtbefore the European
Commission,
even thoughTurkeywas apartyto theEuropean Convention
(145). Turkeycould neverhaveenjoyed this immunityfrom international
scrutinyhad itacceptedthe right of individualpetition.
Similarly,
thestateofemergency in Polandhas notreceivedthe attentionofthe
HumanRightsCommittee eventhoughPolandratified the International
Covenantin 1977. Not havingaccepted the rightof individualpetition
undertheOptional Protocol, itappears thatPoland'sinvocation
of the
right to derogatewill notbe examineduntil its nextperiodicreport
is duein 1984. Althoughobviouslynot designedfor thisparticular
purpose, acceptanceof the rightofindividualpetitiongreatly enhances
the probability
ofrelatively
promptand thoroughreviewofaLeateof
emergencyby thecompetent international
authority.
Arelatedreason for the failureof international
reviewis
ignoranceof and failureto usethe rightof individualcomplaint.
Of
thecountriesincludedin this study,Colombia,Peru,Uruguay andZaire
recognise the rightof individual
petitionunder theOptionalProtocol.
- 454-
Uruguayans havemade extensiveuseof this right,submittingnearly
halfofall the complaintsreceived by theCommittee (146), with the
resultsdescribedabove. Incontrast,very fewcommunicationshave
been received Wi01 respecL Lu rhe other three countries. Although
the Covenantand rightofindividualpetitionentered into effectfor
Colombiain 1976, only four communicationswere receivedin thefollow-
ing five years (147). onlyone communicationhas beendeclared
admissible with respect to Zaire, and at the timeofwritingit has
not proceededto afinaldecision (148). Nocommunications have been
receivedwithrespectto Peru (149;. This suggeststhatanother
elementof aprogramme forpreventionof abuse of statesofemergency
is effectiveeducationofthe population, particularly lawyersand
human rightsadvocates,concerning applicable international norms
and the mechanisms available for challengingviolations.
The drafters of theInternational Covenant believedthat the
obligation toreportpubliclyrecourse to emergencypowerswou'dbe
an effective deterrenttounwarranted recourse to them (150). Thisview
has notbeenborne outby experience,for two reasons. First,none
of the human rights treaties provide for any substantive action by the
competent international body upon receipt of notice of derogation. The
Human Rights Committee has taken the lead in discussing the need to
definean appropriate r~le for itselfupon being informedofreceipt
of anoticeof derogation (151). Thesediscussions havefocused on
the ideaofcalling for asupplementary reportoneffortsmade,progress
realisedanddifficultiesencountered in implementing theCovenant,
in partbased onthe idea thatdeclaiingastate ofemergency maymean
that informationpreviously reportedto theCommitteenolongerobtains,
inpartbecause of thedrasticchanges in the human rights situation
whichmay accompanyastateofemergency. Mine NicoleQuestiaux, the
UNSub-Commission'sspecial rapporteur onstatesofemergency,has
recommended that thepowersof thedepository beexpandedto permit
them to "seekadditional informationandexplanationswhichwould be
transmittedto the StatesParties and to the specialist bodiesso that
the internationalsurveillanceauthorities have sufficientmaterialon
which to reachadecision" (152). While examining the conformity of
emergency measures with the requirements ofinternatinal lawis atask
whichcan be betterperformed,wherepossible,in the examinationof
individual orinter-state complaints,it wouldbe usefulfor the compe-
tentbody uponlearningofnoticeofderogationto require full and,if
necessary,periodicreportson thecircumstancesnecessitatingderogation,
the exactmeasurestaken and theireffectonthe enjoymentof human
rightsand the prospectsfor areturnto full respectfor the state's
obligations under the relevant treaty.
Secondly, the noticeofderogationrequirementis oftendis-
regardod. Duringthe first five years thatthe Covenantwasinforce,
for example,at leastfifteenStatesParties,includingColombia,Peru
and Uruguay, failed to givetimely noticeof statesof emergency (153).
Thus it is incumbentuponthecompetent international bod~es,notonly
tosolicit informationuponreceipt ofnotice ofderogation,butalso
when it appearsthatastateparty is disregardingthe noticerequire-
ment. Informationregardingstates ofemergencyis available froma
varietyof sources,includingthe OfficialGazetteofthe stateparty
itself,publishedreports ofinter-governmental bodies such as theILO,
press reportsand reports ofnon-governmental humanrightsorganisations.
It is worth recallingthatmore thanoneState Party has attemptedto
excuse non-compliancewiththis treatyobligationbysayingthatits
stateofemergencywas'matterofpublic record'.
- 455 -
This leads to consideration
ofanother
problem,
difficulty
in
obtaining
information
sufficiently
detailed
and complete
topermit
meaningful
reviewof asuate's
compliance
with international
norms.
Theproblemis peculiar
to theHuman Rights Committee's
exercise
of its
generalsupervisory
powers.
Itdoes not arise in the European
context
becausethe Commission
has no suchfunction,
acting as it does only
uponreceiptof an individual
or inter-state
complaint.
The Inter-
American
Commission
is deluged
withmore information
than it can pro-
cessefficiently,
since it receives
and acto upon information
fromany
credible
individual
or organisation
with norequirement
that they be
orrepresent
an actualvictimof ahuman rights violation.
Reports
concerning
Colombia,
Northern
Ireland,
Syria and
Uruguay came before the Human Rights Committee
while states of
emergency
were in effect.
The Committee's
relative
success
in its
encounter
with the representatives
of Colombia
and Uruguay was in large
part due to information
obtained
by the Coirunittee
in its handling
of
individual
cases.
its consideration
of the reports concerning
Syria
and Northern
Ireland reveal how lack of information
about the situation
actually
prevailing
in a country can weaken efforts to encourage
respect
for the relevant
provisions
of the Covenant.
The Human Rights Committee's
report reveals
only threequestions
addressed
to the representative
of
the United Kingdom on the subject
of the emergency
in Northern
Ireland
concerning
the application
of emergency
measures
one
outside
Northern
Ireland itself,
one concerning
"the judicial
considerations
that had
injluenced
the decision
to make the derogations"
and
asking one
whether
the UnitedKingdom
was considering
lifting the emergency
measures.
The povertyof thequestioning
on this subject
is surprising.
The notice ofderogation
only refersingeneral
terms topossible
deroga-
tions from specified
articles
of the Covenant
and thereis no disruption
of the emergency
measures
themselves.
Although
the notice refers to
sevenspecific
articles
which'.orrespond
to avery largepartofthe
totality
of rightsone expects
to enjoyit,ademocratic
society,
no
information
was soughtontheexact nature of the emergency
measures
noron their actualeffects
onthe enjoyment
ofthe rightsin question.
Withoutknowing
themeasures
taken, ofcourse, there canbe no inquiry
into the requirement
thatthey be "strictly
required".
Similarly,
there
wasno substantive
exchange
ofviews betweenthe Committee
and
StateParty on the existence
of athreatto
the
thelife ofthenation.
Major limitations
ontheright toderogate,
therefore,
were simply
overlooked
by the Committee.
Whyshouldthe Committee's
failure toshowmorevigourin
questioning
the State Party about this emergency
be attributed
to lack
of information
? Thereare three possible
explanations
:the existence
ofa 'doublestandard'
orareluctance
to scrutinise
closely
the actions
ofacountryenjoying
agenerally
positive
imagewithregard tohuman
rightspractices;
anunspoken
desire todefer tothe judgment
ofthe
competent
regional
human rightsbody; and thelack ofinformation
sufficient
topermit andencourage
the posingofappropriate
questions.
The first hypothesis
mustbediscarded,
notonlybecause
it
wouldbecompletely
inappropriate
to imputesuchmotives
to theCommittee
withoutconvincing
evidence,
butalsobecause
the Committee's
willing-
nessto askprobingquestions
onothermattersand thediversepolitical
and ideological
allegiances
oftheCommittee
members
renders
the
hypothesis
improbable
in the extreme.
The secondhypothesis
is also
- 456-
difficultto reconcilewiththe facts. The mainEuropeancaseon
the NorthernIrelandsituation, Irelandv.The UnitedKingdom,con-
cerned allegationsof political-religious discriminationin the
applicationofemergency measures,of torture and inhuman treatment
andofviolationsof personalliberty and the rightto afairtrial
by reasonofdetentionwithouttiral,all occurringduringthe period
1971 to 1975. Thestate ofemergencywhichthe Committeecould have
inquiredinto in 1978was substantiallydifferentfromthat pre-
vailingin 1971-1975. In particular, thegovernmenthad shifted
fromapolicyofdetentionwithouttrial to apolicyof prosecution
in special courts. Moreover, the criticismwhich someaspectsof
theEuropeanCourt'sdecisionhas received, in thedissentsofsome
members of the Courtandacademically, suggeststhatathorough
acquaintanceof thedecisions of the regionalbody mighthave
stimulated the Human Rights Committee to ask more rather than fewer
questionsregardingthe state of emergencyin NorthernIreland. In
sum,whileacertaindeferenceto theUnitedKingdom'sreputation
for human rightsand its cooperationwith the regional human rights
systemcannotbe precluded, the factssuggest that greaterawareness
of the thenprevailing situation inNorthernIrelandand the details
of litigationbefore the Europeanauthoritieswould haveencouraged
the Committee to play amore active rleinpromotingcompliancewith
the relevant international norms.
The Committee'sexaminationofSyriaalsohighlights the
importanceof this factor. At the Committee's firstmeetingwith the
StateParty in 1977onlygeneralquestionswere asked as to the
existenceofany derogations, theirnature and effects ofapublic
emergency inSyrian law. AtSyria's secondappearance in 1979, its
representative,apparently in response to thequestions posed in1977,
madeathoroughlyconfusing statementon the existenceof astateof
emergency in Syria (154). Thisprovokedevenmorequestions fromthe
Committee, includingarequest for anexplanationof "theexact nature
of the state ofemergency, if any existed" (155)and questionson the
jurisdiction andprocedures of securityor military courts,the pro-
tection given to the rightsof the accused and theapplicationof the
deathpenalty. Apart from ageneral replydescribingDecree No. 51
of 22December 1962 (156), the representativesimplyinformed the
Committee that "hewould transmit itsrequestfor further clarifications
to the government" (157). No furthercommunications from the govern-
menthave beenreceived.
Thus, on the two occasionson whichSyriaappearedbefore the
Committee, the Committeedid not get beyondinquiringwhetherastate
of emergencyexisted,and, ifso, what wereits effects. Lackof
information preventedanyquestionsfrom beingposed aboutthe con-
formity of specificemergency measuresto the requirementsof the
Covenant,or evenabout the existenceof a"threat to the lifeof the
nation". Under existingguidelines onthe periodicity ofreports,
Syriawill not be scheduledto reappearbefore the Committee for a
periodoffive years.
The questionagain arises, towhatextentcanthe failure to
establishagenuinedialoguewith the State Partybeattributed to
simple lackof informationabout thesituationprevailing there? In
fairness, the Committee's inefficiency in this casemustbe attributed
in largepartto essentialshortcomings initsworkingmethods;
includingits failure topronounceitselfclearlyandunequivocably
- 457 -
when itbelieves aquestionhas notreceivedasatisfactoryanswer,
thelackof aprocedure tofollowupunansweredquestions, its failure
todevelopaprocedurefor indicatingwhen it believesthat aState
Partyhas not compliedwith its obligationunder article 40 toprovide
informationsufficient to permitthe Committeeto fulfil the functions
ascribed to it by theCovenantand its failure to developaprocedure
orcriteriafordetermining wheninformationshould be requestedapart
fromthe periodic fiveyearreports.
These shortcomings originatein the factthat the Covenant
itselfpresumescomplianceby the State Partieswiththe reporting
requirement, the Covenantis silentas to the appropriatecourse of
action inthe eventofnon-receipt ofastatereportor receipt ofa
patently inadequatereportand noprovision ismade for receiving
information from sourcesotherthan the StateParties. Initially,this
led somemembers ofthe Committeeto take theview thatthedialogue
betweenthe CommitteeandStatePartiesmust be based exclusivelyon
informationprovidedbythe StateParty and thatcompliancewith
requestsfor additional informationwas entirelywithinthediscretion
of theState Party. The experienceof non-provisionofreportsor
providingwhollyinadequateormisleadingreports hasbeenso dramatic
(158)that this viewhas beenabandoned. Thereis nowaconsensus that
theCommitteecantake cognisance of informationfromother UNbodies
whichsupplements orevencontradicts informationprovidedby the
State Party (159) and - whatmightat first glanceseemobvious - that
Conmitteemembers can takeinto account any informationin their
possession regardlessofits source. Similarly, whilemaintaininga
preference for informalpressure andvoluntarycompliance,the Committee
isgradualllyproceedingtoaddress theprocedural shortcomings whose
impacton theCommitte's efficiencywereso evident in theSyriancase.
Apartfromthe resolutionoftheseproceduralproblems,however,
it is clearthat the dialoguebetweenthe Committeeand Syriawouldhave
beenmoreefficientifthe Committeemembershad entereduponitwith
knowledgethatastateofemergency existedand abasicunderstanding
ofits legal effects.
TheHumanRights Committee's reviewofthestate ofemergency
inUruguayhas beendescribedas aqualifiedsuccess. However, ifthe
Committeehas successfullyhandledits quasi-judicialfunctionof
deciding the legal and factualissues presentedin individualcases,
there has beenanear total failureto secureimplementationof its
recommendations (160). Avarietyofstepsseemtobe opento the
Committeewithrespect tothis problem. One wouldbe tomake
additional efforts to publiciseaStateParty's refusalorfailureto
take appropriate stepsto remedy, compensateandprevent the recurrence
ofaparticularhuman rights violationinaccordancewiththe Committee's
findings regardingthe state'sdutiesunder theCovenant (161).
Similarly, the Committeecould takesteps to bring non-
compliancewithits decisions andrecommendations to the attentionof
theotherStates Parties and/orto the attentionoftheUNGeneral
AssemblyorHumanRightsCommission. Aprecedentfor these typesof
effortstoinduce compliancewiththe Covenantalreadyexists. Each
yearalistofStatesParties whohave notprovidedthereportrequired
by article40 is established,togetherwithmentionofthe datesof
reminders sent. The listis discussedinpublic,normally at eachof
theCommittee's threeannual sessions,ismentionedinthe press
- 458-
releases, figures prominently in the Committee'sannual reportto
theGeneralAssembly and is sentseparately tothe annualmeeting
of StatesParties.
It wouldbeparticularly appropriateto take theseadditional
steps in casesofnon-compliance withaseriesofdecisionsin
individualcases,as in the caseofUruguay,whichindicateapattern
ofgross andsystematic violationsofhurian rights, amatterof
specialconcernto the international conunity.
Theproblemofnon-compliancewithdecisionsof the competent
international authorities or ofcreatingeffective sanctionshas not
arisen in theEuropeansystem.except in the Greekcase,when the
governmentwithdrewfromtheConventionwhenit knewthat itwas about
tobe condemned andprobablysanctioned.
- 459 -
SummaryofRecommendations
yr.
Recommendationsfor Implementationat the National Level
1. The constitution should clearly state and limit: the effects of states of
emergencies on legal rights and on the powers of the branches of government. As
a minimum the constitution should specify that: the rights recognised as
non-derogable in international law may not be affected by a state of emergency.
2. The constitution should enumerate and define the situations which justify
departure from the normal legal order, preferably distinguishing between var-
ious types of ernergencies.
3. The constitution should define the procedure for declaring a state of
emergency; if the executive has the authority to declare an emergency, legisla-
tive approval with in a defined period of time should be required, preferably
by anenhanced majority.
4. The constitution should specify that no state of emergency have legal
force beyond a fixed period of time, which should not exceed 6 months. Every
declaration of emergency should specify the duration: of the emergency.
5. Normal judicial remedies should remain available during an emergency for
all rights whichare notsuspended by virtueof the state of emergency.
6. The ordinary courts should have jurisdiction over charges of abuse of
power and human rights violations by security forces.
7. The civilian judiciary should retain jurisdiction over trials of civil-
ianscharged withsecurityoffences.
8. The use of emergency powers to remove judges, to alter the structure of
the judicial branch or otherwise restrict the independence of the judiciary
shouldbe expresslyprohibited in the constitution.
9. The national legislature should not be dissolved during a state of
emergency, or if dissolution of a particular legislature is warranted, it
- 460-
should be replaced within the briefest possible time by a legislature elected
under conditions which ensure that it isfreely chosen and representative of
theentire nation.
10. The right to take emergency measures should be limited by the duty not to
take measures which threaten the viability of a free press, independent trade
uaiiona, professional organisations and popular organisations.
11. Whenever adoption of a measure suspending or derogating from a legal
right is introduced, efforts should be made to identify and implement safe-
guards against its abuse.
12. The termination of a state of emergency should automatically lead to the
full restoration of suspended rights ann freedoms, and a review of continuing
consequences of emergency mearures should be made as soon as possible in order
to identify and correct or compensate continuing injustices.
13. The recruitment, leadership, organisation and training of the armed
forces and security authorities should be studied with a view to taking
practicalmeasures to reduce the riskof abuse ofstatesofemergency.
14. Special safeguards should be adopted for the protectionofadministrative
detainees or persons who have been arrested with aview to prosecution for
alleged security offences.
15. The following due process rights, as a minimum, should be respected in
criminal proceedings during states of emergencies:
the right to be informed promptly and in detail of the charges,
the right to have adequate time and facilities for the preparation of
one's defence, including the right to communicate with counsel,
the right t- i lawyerof one's choice,
the right of an indigent defendant to have free legal counsel when
charged with a serious offence,
the right to be presentat the trial,
the presumption of innocence,
- 461-
the right not to be compelled to testify against oneself or to make a
confession,
- theright to an independentand impartial tribunal,
- the rightto appeal,
- the right to obtain the attendanceand examination ofdefencewitnesses,
- the right not to be tried or punished again for an offenceforwhich one
has been finally convictedoracquitted,
the principle ofnon-retroactivity
ofpenal laws.
16. Administrative
detention should not be resorted to other than under
states of emergency.
Accordingly the constitution
or legislation
should pro-
vide that a formal proclamation
of a state of emergency is a precondition
for
the useof administrative
detention.
17. The introduction
of administrative
detention shouldrequire authorisation
by ademocratically
elected parliament and the need for its continuanceshould
be reviewed periodically
by the parliament at intervals of not more than six
months.
18. When astate of emergency is terminated,
theauthority todetain adminis-
tratively should cease automatically
and administrative
detainees should be
released.
19. The permissible grounds for detaining apersonadministratively
shouldbe
clearly stated in the constitution
orlegislation.
20. Resort should be had to administrative
detention only when absolutely
necessary to protect national security or public order. Persons suspected of
economic or other crimes should be dealt with in accordance with the ordinary
lawsof criminolprocedure,and notbe subjected to administrative
detention.
21. Adetention order, containing the grounds of detention together with a
statement of the facts and circumstances
justifyingit, shouldbe issuedbefore
arrest or, at latest, within 24 hours of arrest, and the detainee should be
provided immediatelywith acopy ofthe order.
22. The civilian judiciary should retain jurisdiction
during a state of
emergency to review individual cases of detention at least (i)to ensure that
- 462 -
the stated grounds for detention are valid and sufficient (ii) to ensure that
proper procedures have been complied with and (iii) to ensure that the
conditionsof detentionare lawful.
23. A detainee should be able to consult in private with a lawyer of his
choice immediatelyafterarrest and at any time thereafter.
24. An order for aJministrative detention should lapse unless within one
month of its issue it isconfirmed by an independent and impartial tribunal or
committeepresided overby ajudge ofasuperiorcourt.
25. The detainee should have aright of representation in proceedings before
anycourt, tribunalor committee.
26. Regular visits by his familyor friendsshould bepermitted.
27. All persons involved indetention and interrogationshouldbe heldstrict-
ly accountable for the physical wellbeing of persons in their charge.Specific
guidelines or administrative instructions regarding interrogation procedures
shouldbe issued toall concerned and these should be made public.
28. The law of evidence should not be altered so as togive additional incen-
ties to obtainingconfessions.
29. Adetainee should be examinedby adoctor soonafterarrestand his physi-
cal and mental condition should be recorded and signed by the doctor.
Thereafter periodical medical examinations should be provided and records
should bemaintained.
30. Women officers should always be presentduring the interrogationofwomen
prisonersordetainees.
31. All persons participatingin interrogationshould beproperly identified.
32. Rules should be established limiting thehours duringwhich interrogation
may occur, and records should ne kept of all periods ofinterrogationwiththe
names ofall persons present.
- 463-
33. Interrogation
should be subject to direct supervision
by superior offi.
cers, andshouldoccur in conditionswhich permit this control to be exercised.
34. Acentralregistryof all persons detained shouldbe maintained.
35. Administrative
detainees should be entitled to the mostfavourablecondi-
tions of detention and treatment consistent with security and in any event not
less favourable than those afforded to convicted prisoners.
36. Names of detainees, with the date of the order, should be published in an
official gazette, and the names of persons released should be similarly
published, with the date of release.
37. Regular visits to places of detentionby independent
authorities and by
international
bodies such as the International
Committee of the Red Cross
should bepermitted.
Recommendations
for Implementation
atthe International
Level
38. Consideration
should be given to establishing
a comprehensive
list of
rights from whichderogation shouldnev,. Le permitted, including
- the dueproa:'ss rightsmentioned in Recommendation
10 above;
- the prohibition
of propaganda for warand advocacyofnational, racial or
religioushatred;
- the rights ofreligious, linguisticor cultural minorities;
- the right of all persons deprived of their liberty to be treated with
humanityand respect;
- freedomof "oinion;
- freedomfromarbitrary attackson aperson's honourdudreputation;
- rights classified as non-derogable
in tteAmerican Csnvention:
the rights
of the child, the rights of the family, the right L,nationalityand the
rightto participate in government.
- 464 -
39. Universal ratification of the human rights treaties containing norms
governing the protection of human rights under states of emergencies should be
encouraged, together withacceptanceof the rightof individual petition.
40. Effective education concerning applicable international norms and the
mechanisms available for challenging their violation should be available, in
particular to lawyers and human rights organisations, in countries where
internationalnorms are in force.
41. When notice of astate of emergency is received pursuant to the terms of
a human rights treaty, the competent internationa] body should require full
reports on the circurastances requiring derogation, the precisemeasures taken,
their effects on the enjoyment of human rights, and the prospects for a return
to full respect for the state'sobligationsunder the treaty.
42. International authorities should aake appropriate efforts to determine
when the obligation to give notice of astate of emergencyis beingdisregarded
and to encouragecompliancewith this requirement.
43. The UN Secretariat should take appropriate steps to enable the Human
Rights Committee to be better informed about the legal situation prevailingin
States Parties to the International Covenant e.g. by preparing abibliography
or synopsis of relevant information published by governmental, intergovernmen-
tal, academic and non-governmental sources.
44. The Human Rights Committee should takesteps to bringnon-compliance with
its decisions and recommendations to the attention of the States Parties to the
International Covenant, the UN General Assembly and its relevant subsidiary
bodies, as well as any series of its decisions which appears to indicate a
patternofgross and systematicviolationsofhuman rights.
- 465 -
NOTES
(1) LatinAmericanssometimes complainthat the attentiongiven
tostates ofemerqenc andhumanrightsproblemsin general
inLatinAmericais disproportionate. The complaintis well-
founded,notin the sense that the scopeand gravity of
oroblemsinLatinAmerica areexaggerated, but in the sense
that situations of comparablegravity in other partsofthe
world frequentlydo not receivetheattention they merit.
Anefforthasbeenmadetoredress this disequilibriumin
thisstudy.
ThatLatinAmericanemergencies arebetter knowncanprobably
beattributed togreatergovernmentalcommitmenttohuman
rights - it is the onlyregionofthe thirdworld havinga
functioning inter-governmentalregionalhumanrights body
and the ratificationof the basicUN humanrights treaties
is proportionatelyhigherthanin anyotherregion- andabove
all to the large numberofefficientnon-governmentalhuman
rightsbodies intheregion.
(2) D.O'Donnell, "StatesofException", 21 ICJ Review,December
1978,p. 52.
(3) Turkey. rp. 311 - 312, 315 an( 317. Thisseems rathermoreuseful
than theUNSpecial Rapporteur's four-partclassificationinto"non-
notified", "defacto", "permanent"and #complex"statesof
emergency. See Studyofthe implications for humanrightsof
...statesof siege oremergency, UNdocumentE/CN.4/Sub.2/1982/15,
July1982.
(4) Ibid.
(5) For abriefdiscussionof themeaningofthis term,see
D.O'Donnell,StatesofSiege orEmergency and TheirEffects
onHumanRights :ObservationsandRecommendations of theICJ,
UNdocumentE/CN4/Sub.2/NGO93, August1981, note 1,p. 25.
The presentchapter is basedinpartonthis document.
(6) UniversalDeclaration,article30; ICCPR, article 5.1; European
Convention,article17; compareAmericanConvention,article
29(a).
(7) TheGreekCase,1969,YearbookEuropeanComnissiononHuman
Rights,p.75 (Reportof the Commission).
(8) Ibid. atp.100.
(9) Zaire,p. 384.
(10) Sy"'a,p. 280.
(11) Malaysia,pp.190- 200.
- 466-
(12) For afurtherdescriptionof this concept andits implications
inUruguay,see ColloquiumonthePolicyofInstitutionalisation
oftheState ofExceptionand itsRejectionbythe Uruguayan
People,Secretariat International'desJuristespour l'Amnestie
enUruguay,23,rueGodot-de-Mauroy,75009 Paris.
(13) Uruguay,p. 349et seq.
(14) Uruguay,p. 358.Theauthorof thechapteron NorthernIreland
ass-concludes that"expediencyratherthan strict
necessity hasdictatedpolicy"concerningemergencypowers.
(15) Poland, p.89 and Uruguay, p.340.
(16) Peru, pp. 274 - 275.
(17) Thailand,pp. 307 - 308.
(18) Argentina,p.4; Colombia,pp.59-61; Uruguay,p. 352;
Peru. p.
2 6 6
-
(19) Senese, "TheStateofNationalSecurity inUruguay,
International Lawand theRightofPeoples toSelf-
Determination"inColloquiumon the Institutionalisation
(note12, supra); see alsoColombia,pp.59-61; Uruguay,
pp. 347.
(20) Senese, supra, p.34 (Englishversion).
(21) Argentina,pp.3- 6.
(22) Study .....
(supra,note(3), para.129 and
131.
(23) Greece,P.136;Uruguay, pp. 359- 365; Colombia,p.59-61
(24) See, forexample,Studyonthe Consequences (supranote (3));
abroaderviewis takenhowever inPartIII ofMrs.Erica-
IreneDaes' Studyofthe Individual'sDutyto theCommunity
and theLimitationsonHumanRights andFreedomsUnderArticle
29of the UniversalDeclarationofHumanRights,entitled
"TheProtectionofHumanRightsinTime ofPublicEmergency",
UNdocumentE/CN.4/Sub.2/432/Add.7, August1980.
(25) Ghana,pp. 105and 125; Uruguay,p.345; Colombia,p. 57.
(26) Imprimeries Rdunis,Lausanne,1977, p.132.
(27) Ibid., note atp. 131.
(28) See,forexample, India,p.180;Uruguay,pp.357.
(29) See,forexample, Thailand,p.307.SeealsoN.Torrents,
"Time ofSilence" in indexonCensorship,vol. 7,no. 3,
May.- June1978, regardingthe closureofpublishinghouses
inArgentina.
(30) Ibid,seealso Greece,p. 146, pp.423 -- 424 infra.
- 467 -
(31) Argentina,p. 25. Seealso, N.Caistar,"Clearingthe
TeachingArea", IndexonCensorship,vol. 7,no. 3,May -
June 1978.
(32) See, forexample,Uruguay, p.357.
(33) ICCPR,article25(a)and (b); AmericanConvention,article
23.1(a) and (b); compareUniversalDeclaration,
article
21(1) and (3); EuropeanConvention,Protocol I,article3.
(34) India,p. 181.
(35) Uruguay,p.352.
(36) InUruquay, four candidates fromtheNationalPartyand one
fromtheColorado,werearrestedand triedby military
tribunals inNovember1982, for havingcriticised thegovern-
ment.
(37) Uruguay, p.350.
(38) Greece,pp.145 - 146.
(39) See H.GrossEspiel,Implementation
ofU.N.Resolutions
Relatingto the RightofPeoplesUnderColonial andAlien
Domination toSelf-Determination,
UNDocument,E/CN.4/Sub.2/405
of20June 1978,paras.67 - 80.
(40) Senese, supra,p.36 (Englishversion).
(41) C.A.Resolution 34/46 (1979).
(42) See, for example,MeetingBasicNeeds :Strategies for
EliminatingMassPovertyandUnemployment,
ILO, 1977;
MeasuringBasicNeedsPerformance, ILO,1979.
(43) See,for example, KebaMbaye, "Chairman'sOpeningRemarks"
andPhilipAlston, "Developmentandthe RuleofLaw :
PreventionversusCureas aHumanRights Strategy" inDevelop
ment,HumanRightsandTheRuleofLaw,International
Commission
ofJurists,PergamonPress, London,1981.
(44) Uruguay,p. 340 (footnote (2)
(45) DescribedbyR.Goldstein,M.D., in "TheSituationofthe
MedicalProfession"inColloquiumonthe Institutionalisation,
supra note 12.
(46) Ibid.p.77 (Englishversion).
(47) Argentina,p.25.
(48) Seenotes (29)anI (31), supra.
(49) Caiston,supra, at 22 ;see alsoTheQuestionofHuman
RightsinChile,E/CN.4/Sub.2/1362,
January1980,paras.
110 - 121regardingthe deterioration
ofeducationinChile
during6yearsofemergencyrule,affectinginparticular
low-incomesectors ofthe society.
- 468-
(50) Torrents,supra at 28, see alsoE.Stover,Scientists and
HumanRightsinArgentinaSince 1976, aericanAssociation
for theAdvancementof Science,Washington, 1981.
(51) Referencehereismade to the relevantarticlesofthe
InternationalCovenantonCivil andPolitical Rights.
It shouldbe noted that thedue process rightsrecognised
in theAmericanand EuropeanConventions are lesscompre-
hensive. TheAmericanConvention,inter alia,doesnot
require theprovisionoffree legalassistance to indigent
defendants (seearticle 8.2(e) ),doesnotrecognise the
rightto apuhlictrialor the right to be presentat
trial (althoughthe right toan interpreterrecognised
inarticle8.2(a)is stated in termswhichassume the
presenceof the defendantattrial), doesnot mentionthe
right to equality before the courtand (inarticle 8.2(f)
defines the righttoexamine adversewitnessesand obtain
the appearance ofdefence witnesses in terms more
restrictive than thoseof the InternationalCovenant.
TheEuropeanConventionis silentas to the righttobe
presentat trial (althoughhereagainitmightbe inferred
fromthe right toan interpreter recognisedin article6.3(3),
the right not to becompelledto testify againstoneselfor
toconfessguilt, the right toequality beforethe court,th
right toappeal, theright not to beretried afterafinal
judgment,and the rightofapersonunjustly convictedto
compensation.
Dueprocessrightsare notdescribed indetailin the
Universal Declaration (see articles 10and11).
(52) NorthernIreland, p.235.
(53) Turkey, pp. 324 - 325.
(54) Uruguay,pp. 364 - 365.
(55) Thailand,p. 305.
(56) Turkey,p.325.
(57) Thesedecisionsappearin theAnnual Reportsofthe
Human Rights Committeefor theyears 1979to 1982.
(58) SeeJoanHartmann,"Derogationsfrom HumanRights
Treaties in Public Emergencies", in Harvard International
LawJournal,vol. 22, no. 1,Winter1981, note45, p.9,
citingUNdocumentE/CN.4/324 (1949).
(59) The authorof this chapterwould like to thankRobert
Goldman, Directorof the Department ofInternationalLawof
theAmericanUniversity, for drawing his attentiontothis
development.
(60) See p.448 infra; see alsoTheInter-AmericanCommission
of HumanRights :10YearsofActivity, 1971- 1981,OAS
Secretariat,Washington,1982,p.324 (Spanishedition),
citing the IAHCR's 1978Report onthe Situationof Human
Rights in Uruguay.
- 469 -
(61) FinalRecapitulation
oftheGeneral Rapporteurof the
Inter-AmericanSeminaronStateSecurity,Human Rights
andHumanitarian Law,forthcomingpublication ofthe Inter-
AmericanInstitute ofHumanRights,SanJos6, CostaRica.
(62) Uruguay, p.364.
(63) In this chapter,thisrefersto the InternationalCovenant
onCivil and PoliticalRights, the AmericanConventionon
HumanRights and the EuropeanConventiononHumanRights.
The other principalinternational humanrights treaty, the
InternationalCovenantonEconomic,CulturalandSocial
Rights,does not containaprovisionpermittingderogation
in timesofemergency, nor does theotherprincipalregional
humanrights treaty,the AfricanCharteronHuman and Peoples'
Rights,whichhas notyetenteredinto force.
Also excludedfromthe scope ofthis chapteL are non-general
humanrights treaties, i.e. those concernedwiththe rights
ofworkers, refugees, thoseprohibitingdiscrimination,
etc. AnumberofILO conventionscontainderogationclauses,
butthosemostofteninfringedduring states ofemergency,
ConventionsNos. 87 and 98 concerning freedomofassociation,
the right toorganiseand collectivebargaining, donot.
It isworthnotingthatwhen atreatydoes not contain a
derogationclause, the stricterprincipleofimpossibility
ofperformancemaybeapplied. The ILO commission charged
withinvestigating violationsofConventions Nos. 87 and 98
inGreeceduringthe 1967 - 1974 emergency didapply this
principleand foundthat the governmentwas notentitledto
derogate fromits obligationsunderthe conventions (seeILO
Official Bulletin- SpecialSupplement- Vol. LIV,no. 2,
1971,pp.24 - 26). Hartman (supra,note58) argues that the
principleis inappropriateforuse withrespect toderogation
fromhuman rights treaties in timesof emergenciesbecauseof
the requirement that the contingencyjustifyingsuspensionof
the legal obligation mustbe forseeable (op.cit. at 12).
In StatesofSiege orEmergency (supranote (5)),the author
has adifferent approach,arguing that theprinciples concern-
ingderogationwhichare commontothe threeabove-mentioned
humanrights treaties constitute anemergingruleofcustomary
international law (op.cit.at 18).
(64) Zaire,p.382.
(65) TheUNSpecial Rapporteur onstatesofemergency recommends
that theprincipleofnon-retroactivity
apply in additiontothe
scope ofmi-imalized behaviourand the lengthofsentences, to
lawsgoverningcriminalprocedureand jurisdiction.
Thiswould
have the effect, interalia, ofprecludingretroactivetransfer
ofjurisdictionover certain crimes fromcivilianto military
courts,whichhasbeen aserious problemduringstates of
emergency. It would not prohibitprospectivetransfers of
jurisdiction tomilitarycourts, however. Surprisingly, the
SpecialRapporteurrecommends thatonly threeofthedue process
rights be considerednon-derogable :theright toalawyerof
one'schoice,the right toa"minimum"of communicationwith
- 470 -
toapublic trial, in the limitedsense
thatthe defendant's family and internationalobservers always
bepermittedtoattend atrialeven if thegeneralpublic is
excluded (Study,supra note (3), at p.45).
counsel,and theright
(66) Poland,p.87, Greece,p. 142. Amnesty InternationalAnnualReport
1973, p.160.
(67) ICCPR, article10.1; AmericanConvention,article 5.2.
(68) See, for example,Reportonthe Situationof Human Rights
inArgentina, 1980,conclusionl(b).
(69) Argentina,p. 11, Uruguay,p. 357.
(70) Northern Ireland,pp. 231 - 232.
(71) Report on ...Argentina (supranote (68) ),Recommendation
3concerning theestablishmentof aregistry; Reportonthe
Situationof HumanRights in Colombia, 1981, Recommendation
6(c) concerninq interrogcation. Reprinted inThe IACHR :10
Years (supra,note (60)
(72) See p.452, infra.
(73) NorthernIreland,p. 230.
(74) Argentina, p.14, Uruguay,p.358, Peru,p. 269,Malaysia,
p. 202.
(75) EasternEurope, p.89.
(76) Malaysia,p.202.
(77) Colombia,p.48.
(78) Ibid.
(79) Greece,p. 139.
(80) Study ...,supranote (3), para.55(1) and (2).
(81) NorthernIreland,p. 244.
(82) NorthernIreland,p. 245.
(83) Article 27.2.
(84) 1974 AnnualReport,p. 37 (Englishversion).
(85) Digestof Decisionsof the ILOFreedomofAssociation
Committee (2ndEdition), 1976, p.164.
(86) Greece,p. 139.
- 471 -
(87)
Viewsof theHumanRights
Committee
Concerning
Communica-
tionNo. R.11/45,
UNdocument
CCPR/C/DR(V)/R.1/4
5
,31 March
1982,
reprinted
in the 1982 Report
of theHuman Rights
Committee,
UNdocument
A/37.
(88)
See, for example,
Greece,
pp.145 - 146.
(89)
Uruguay,
p. 351 andpp. 353 - 354.
(90)
Northern
Ireland,
p. 235; see alsoMalaysia,
p.207, Ghana,
pp. 104 and 107, India,
pp. 187 - 188.
(91)
Arqentina,
pp.12 - 14; Greece,
p.146; Poland,
p.86.
(92)
Northern
Ireland,
p.230.
(93)
After general
'lections
;n May1982,
the newgovernment,
trying
to eliminate
violence
and looking
fornational
unity,
approved
apolitical
amnesty
and lifted
the stateof
emergency.
(94)
Oneexample
is Vietnam,
where
legislatures
functioned
in
bothNorth andSouth Vietnam
during
the war between
the
two countries.
After unification
in 1976,the legislature
also
continued
to function
during
the Vietname3e
invasion
of
Kampuchea
in 1978and the Chinese
invasio
ofVietnam
in
1979.
(95)
See p.452, infra.
(96)
See note (63), supra.
(97)
ICCPR,
article
4.1; European
Convention,
article
15.1.
Note,
however,
that the American
Convention
uses the terminology
"Intime of war, public
danger
orotheremergency
that threatens
the independence
orsecurity
of aState Party
..."(article
27.1, emphasis
added).
(98)
ICCPR,
Article
4.1; European
Convention,
article
15.1; American
Convention,
article
27.1.
(99)
ICCPR,
article
4.2; European
Convention,
article
15.2;
American
Convention,
article
27.2.
(100)
ICCPR,
article
4.1; European
Convention,
article
15.1;
American
Convention,
article
27.1.
(101)
ICCPR,
articlc
4.3; European
Convention,
article
15.3;
American
Convention,
article
27.3.
(102)
See note (6), supra.
(103)
ICCPR,
article
4.1; American
Convention,
article
27.1,
Inboth
instruments,
however,
the typesofdiscrimination
prohibited
in timesofemergency
are considerably
less thanthe types
of
discrimination
prohibited
in normal
times
:notmentioned
in
the non-discrimination
clause
of the derogation
provisions
arediscrimination
onthe basis
ofpolitical
or other opinion,
national
origin,
property,
birth
or "other
status".
Note also
- 472 -
thatwhile theAmericanConventionprohibitsemergencymeasures
whichdiscriminate"onthegrounds ofrace"etc., theInternational
Covenantrefers onlytoemergencymeasureswhich discriminate
'solelyon thegroundof race", etc. (emphasisadded).
(104) But see note (97) supra,concerningthe text oftheAmerican
Convention. Acomparisonbetween this termand other terms
considered and rejectedby thedrafters ofthe International
Covenantis to be foundin StatesofSiege orEmergency (supra,
note (5)) at p. 18.
(105) The ILO has also emphasised as a generalprincipleof
international law,outside the context ofcon'rntions contain-
ingderogation clauses,that emergencymeasuresmustbe ter-
minatedimmediately upon thecessationof thecircumstances
which justified their imposition. See, forexample, the case
ofTurkey, 214 Reportof the CommitteeonFreedomofAssociation,
para. 571, sta-ingthat emergencymeasures "restrictingthe
free exerciseof tradeunionrights should belimited in time
and scope to the inmediate period of emergency"; the 1968
Forced Labour Survey, paras. 39, 54, 92, 95, 102 and 136; the
1979 Forced Labour Survey, paras. 36, 66, 126 and 134; and
theGreekcase (supra,note (63)), para. 110, stating "it must
also be shown that the action sought to be justified tinder the
plea/ofimpossibility! is limited, both in extent and intime,
to whatis immediatelynucessary". (Theauthor of thischapter
would liketo thankMr. K.T.Sampsonfo: drawinghis attention
to thesedecisions).
(106) ICCPR, article 20.
(107) It is for this reason that, unlikethe AmericanandEuropean
Conventions, derogationarticleof the International Covenant
doesnot refer to"waror otherpublicemergency"threatening
the lifeof the nation. See UN documentA/2929 (1955), para.39.
(108) See the IACHR's ReportonArgentina (supra,note (68)) concerning
discriminationagainstJehovah'sWitnesses andJewsduringthe
state ofemergency.
(109) Uruguay,p. 351.
(110) Colombia, pp 6 -64.
(111) ICCPR,article40.1 andarticle 40.2.
(112) Decisionon Periodicity, 1981ReportoftheHumanRights
Committee, UNdocument,A/36/40,p. 104 (Englishversion).
(113) UN documentCCPR/C/2/Add.4.
(114) UN documentCCPR/C/I/Add.50.
(115) See ChapteronColombia,supra.
- 473 -
(116) CommunicationNo.R/11/45 (note (87), supra). The law in
question,DecreeLawNo. 0070of 20January1978, is further
described in Colombia,p.53. The twodecisionsof the
Committee arecommented upon in "TheHuman RightsCommittee",
ICJ Review,No. 28, June1982, p. 47.
(117) Conmunication No. R/15/64, 1982Report (supra,note (87)).
(118) Report on Colombia (supra, note (71)), p. 53, (Spanish
edition).
(119) "El Tiempo", Bogota'snewspaper - June1982.
(120) "El Tiempo", 14 October 1982.
(121) Colombia,p.67 - 68.
(122) ReportonColombia (supra,note (71)), p. 1and note 4,
p.15 (Spanishedition).
(123) In the sub-chapterentitled TheStateof Siege, for example,
theCommissionpublishesthe views ofvarious governmental
and non-governmental authorities, but refrainsfrom taking
anypositionofits own. The Conclusions donot address the
legalityof the stateofsiege per se, andthe Recommendations
call uponthe governmentto "lift the stateof siegeas soon
as circumstancespermitand comply with the provisions of
article 27 of theAmericanConvention... " Note the apparent
contradictionbetween the two elementsof thisrecommendation
whichon the one hand suggests thatarticle27 was not then
beingcompliedwith, and,on the otherhand,implicitly accepts
that it was not possibleto liftthe stateofsiege forthwith.
(124) Compare,for example, the Commission's sanatizeddescription
ofthe killingof 7persons bypolice inChapter II.D(d)
with the HumanRights Committee'sdescriptionof the same
incidentindecisionno. R/11/45 (supra,note (87)), or com-
pare the brief,antisepticdescriptionsoftorture
allegations in para. 4ofChapter IV.Dwith thegraphic
descriptionsofChapterV.DoftheCommission'sReporton
Argentina (note(68) supra).
(125) 1979- 1980AnnualReportonthe IACHR,ChapterV.C.
RecommendationC., p.135 (Englishversion).
(126) The legalnature of these "recommendations"- the wordis
usedfor the sakeof convenienceand is not entirelyappropriate
- meritsbrief comment. When the Committeefinds that therehas
beenaviolationof anindividual's rights under theCovenant,
itsdecision usuallyconcludes withlanguage similarto the
following : "Accordingly,theCommittee isof the viewthat
theState Party is under anobligationpursuanttoarticle
2(3) of theCovenantto provide/X/witheffectiveremedies,
includingher immediate release/-rom prison7, permission to
leave the country andcompensation for the violationswhichshe
has suffered ..." (CommunicationNo.R/13/56,para. 12,
reprintedin the 1981 Reportofthe Committee,UNdocument,
- 474 -
A/36/40,p.188 of theEnglishversion). TheCommittee is not
acourtand cannotissue ordersbindinq onstateparties. It
doeshave asimilar power,however :the powerto reach aformal,
unappealableconclusionthat aState Partyhas an obligation
under internationallaw to take specifiedsteps to remedyand
compensate the violationand to prevent its recurrence. That
its conclusionsare denominated 'final views'doesnot alter
their character. It is becauseof thisauthority, as wellas
for theguarantees of independence it enjoysandthe
characteristicsof the procedures itapplies in individual
and inter-state cases, that the Committee is considered a
quasi-judicialbody.
(127) TheWaksmanCase,No. R/7/31, 1980,Reportof the Human
RightsCommittee, UNdocumentA/35/40,p.120 (English
version).
(128) UNdocumentCCPR/C/l/Add.57, 3February 1982.
(129) See, for example,the Lanza case,No. R/2/8,1980,
Report (supra,note (127)),para. 15.
(130) 1979 - 1980AnnualReport (supra,note (125)),Chapter
V.C., Conclusions,para. 2.
(131) UNdocumentCCPR/C/SR.357, 9April 1982, Summary
Records 14 andl5thSessions(NY,Marchand Geneva,July
1982).
(132) Uruguay,p. 352).
See,forexample,theReviewofthe International
CommissionofJurists,No. 14 (June1975),
(133)
p.1.
(134) ReportonArgentina (note (68), supra), Recommendation4.
(135) Seep.440, supra.
(136) The Commission concludes,for example,that "the
completeexerciseofthe freedomofopinion,expression
and information hasbeen limited, indifferent ways, by
the enactmentof emergencylaws that have contributed to
creatingaclimateof uncertainty and fearamong those
responsible for the communicationsmedia"and that"labour
rights have been affectedby thenormswhichhavebeen
declaredin this areaandby theirapplication,whichhas
had aparticular impactonthe right of tradeunion
association,due to militaryinterference, and thepromulga-
tion oflawswhich injuretherights of theworking
class ..."(Conclusions 'ta) and (b))
(137) Seep. 414, supra.
- 475 -
(138) Here, incontrast
withColombia,
one notes thebarren
groundonwhich the Commission's
efforts havefallen :an
unelected
government,
nolegislature,
ahighlypolarised
political
and social situation
with littlemiddleground, a
nationwith aconsiderable
partofits intelligencia
in exile,
greatly curtailed
freedomofexpression
and assembly,
etc.
(139) AnILOCommission
ofInquiry (seenote (105), supra)also
concluded
that therewas no stateofemerqent
in Greece
"suchaswould justifytemporary
non-compliance
"h"
Conventions
Nos. 87 and 98. It didso by applyingcustomary
international
law.
(140) TheLawless case (Merits), Yearbook
EuropeanConvention
onHumanRights, pp.472 - 474.
(141) Stock-taking
ontheEuropeanConvention
onHumanRights,
CouncilofEurope, 1979,p.87.
(142) Irelandv.TheUnitedKingdom (ReportoftheCommission),
Publications
E.C.H.R.,
SeriesB,p. 117.
(143) Ibid.p. 119.
(144) NorthernIreland,pp.236 and 244.
(145) Aninter-state
complaint
concerning
theSeptember
3980
stateof emergency
was made inJuly 1982,however.
(146) 1981 Report (note (12), supra), para.400.4.
(147) Ibid.
(148) Ibid.
(149) Ibid.
(150) See the viewofRen6 Cassin,representative
ofFrance
inthe Committee
chargedwithdrafting
theCovenant
inUNdocumentE/CN.4/SR127,
14 June 1949.
(151) The Committee
itselfdoes not receivenoticesofderogation.
Theyarereceivedby the UNSecretariat,
whichis obligedby
theCovenant toinformtheother StatesParties.
In practice,
the textsof ,uchnotifications
arepublished
approximately
onceayear Ndocument
CCPR/C/2 andaddenda).
(152) Study ..., te (3), supra), Recommendation
(A)4.
(153) It shouldbe noted that aStatePartywhich "availsitself
of therightofderogation"
is obliged to makesuchareport;
strictly
speaking,
aStatePartywhichproclaims
astateof
emergency
is not bound bytherequirement
unlessthe emergency
involvesmeasureswhichderogatefromTheobligations
set
forth in theCovenant.
However, it is moreinkeepingwith the
purposeofArt.4(3) for theState Party toreport the
declaration
ofemergency
and measuresadoptedunderit
- 476-
wichoutprejudicetotheultimatequestionofwhether the
emergencymeasuresconstititederogations.
Amongthe State Partieswhichhad astateof emergencyduring
atimewhiletheCovenantwas ineffect for that countrywithout
givingnoticeto theotherStatesParties are :CentralAfrican
Repubicfor astateof siegeproclaimed inJuly1981; Chile
forastateof siege ineffect whentheCovenantenteredinto
force inMarch 1976 (reportedin August1976) andmore recent
unreportedproclamationsof emergency; Colombia,forastateof
siegedeclared1976 (reportedin 1980); Ecuador, for astateof
emergencydeclared inJanuary 1981; El Salvadorfor the stateof
siegedeclared9March 1980; Iran,for martial lawproclaimed
in the maincitieson 8September 1978; Jamaica,for anemer-
qency declaredon 17 June1976; Jordan,for anemergency
declared in 1973 and stillin effectupon the entryinto force
of theCovenant; Mauritius. forastateof emergencydeclared
in 1971 andstill in effecuponthe entry into forceof the
Covenant; Peru, for the states of emergency ofJuly 1978 and
January 1979; Syria, for astateofemergency in effectwhen
theCovenant enteredintoforce; Tanzania,forthe state of
emergency in effect inZanzibarwhen the Covenantenteredinto
force; Tunisia, for the stateofemergency of February1978; the
UnitedKingdom, for the 7day state ofemergency inthedependant
territoryofBermuda in December1977; Uruguay, for the stateof
emergency ineffectwhen the Covenantentered into force in1976
(reportedin .979).
It shouldalso bc noted that reportingastateofemergencydoes
notnecessarily satisfy thp obligationof the State Partyunder
article 4(3), which requiresnoticeof"theprovisions from
which it hasderogatedand of the reasons"forderogation. On
variousoccasions, theCommitteehasobserved that notifications
receivedhave beeninadequate inthis regard.
(154) His statementwassummarised as follows :
"... he pointed out thathis countrywas entitled, like any
otherState Partywhichmay facedangerand threats to its
nationalsecurity, asSyriadiddue to the continuedoccupation
ofpartsof its territoryby Israel,toderogatefromsomeofits
obligations under theCovenantin accordancewitharticle4
thereof,to theextentstrictlyrequiredby the exigencies of
the situation. Citingadeclarationby thePresidentof the
SyrianArabRepublicbeforetheNational Council,therepresen-
tative stressedthat no stateofemergency existedinhis
countryand thatmartial lawwas not applied anymoreexcept
when thesecurityof the State wasin danger. He finally stated
that thetwo reportssubmittedby the SyrianArabRepublicshould
be viewed intheirproperperspective, thatis to say, in the
contextof theconflictin theMiddleEast whichwas threatening
the lifeof the nationand that, owing to the fact thatpartof
the Syrianterritory wasunder foreignoccupation,his Govern-
ment couldnot implement theprovisions oftheCovenant,
particularlyarticle 4Cthereof,since itwas unableto secure
and protectthe rightsandfreedomsof the inhabitantsof its
occupiedterritories. (1979Reportof theHumanRightsCommittee,
UNdocument 4/34/40,para.287).
- 477 -
(155) Ibid., para. 293.
(156) Syia, p.281.
(157) 1979Report (note (152), supra), paras. 295 and 299.
(158) Peru's first report, for example,was scarcelymore than two
pages (UNdocument,CCPR/C/6/Add.l).
Uruguay'sreportwas
received 5years late (pp.446 supra.)
(159) See, for example,the Committee's
consideration
ofthe
report ofChile (1979Report,note 152,supra,paras. 72-73).
(160) See pp.446 - 447, supra.
(161) Seenote 126, supra.
-0-0-0-0-
MEMBERS OF THE
KEBA MBAYE
(President)
ROBERTO CONCEPCION
(Vice-President)
HELENO CLAUDIO FRAGOSO
(Vice-President)
JOHN P.HUMPHREY
(Vice-President)
ANDRES AGUILAR MAWDSLEY
BADRIA AL-AWADHI
ALPHONSE BONI
WILLIAM J.BUTLER
HAIM H.COHN
TASLIM OLAWALE ELiAS
ALFREDO ETCHEBERRY
GUILLERMO FIGALLO
LORD GARDINER
P.TELFORD GEORGES
LOUIS JOXE
P.J.G. KAPTEYN
KINUKO KUBOTA
RAJSOOMER LALLAH
TAI-YOUNG LEE
SEAN MACBRIDE
RUDOLF MACHACEK
J.R.W.S. MAWALLA
FRANCOIS-XAVIER MBOUYOM
FALl S.NARIMAN
NGO BA THANH
TORKEL OPSAHL
GUSTAF B.E. PETREN
SIR GUY POWLES
SHRIDATH S.RAMPHAL
DON JOAQUIN RUIZ-GIMENEZ
TUN IV'JHAMED SUFFIAN
CHRISTIAN TOMUSCHAT
MICHAEL A. TRIANTAFYLLIDES
AMOS WAKO
J.THIAM HIEN YAP
INTERNATIONAL COMMISSION OF JURISTS
Judge of Int'l Court ofJustice; iormer Pres. Supreme Court,
Scnegal, and UN Commission on Human Rights
Former ChiefJustice, Philippines
Advocate; Professor of Penal Law, Rio deJaneiro
Prof. of Law, Montreal; former Director, UN Human Rights
Division
Prof. of Law, Venezuela; former Pres. Inter-American Com-
mission
Dean, Faculty of Law and Sharia, Univ. of Kuwait
President ofSupreme Court of Ivory Coast
Attorney at law, New York
Former Supreme Court Judge, Israel
Pres., Int'l Court of Justice; former Chief Justice of Nigeria
Advocate; Professorof Law, University of Chile
Former Member of Supreme Court of Peru
Former Lord Chancellor of England
Member of Supreme Court, Zimbabwe
Ambassador of France; former Minister of State
Councillor of State. Netherlands; former Prof. of Int'l Law
Former Prof. of Constitutional Law, Japan
Judge ofthe Suprern Court, Mauritius
Director, Kore;.;, Legal Aid Centre for Family Relations
Former Irish Minister of External Affairs
Member ofConstitutional Court, Austria
Advocate of the High Court, Tanzania
Director of Legislation, Ministry of Justice, Cameroon
Advocate, former Solicitor-General of India
Member of National Assembly, Vietnam
Prof. of Law, Oslo; Member of European Commission
Judge and Deputy Ombudsman ofSweden
Former Ombudsman, New Zealand
Commonwealth Secr.-Gen.; former Att.-Gen., Guyana
Prof. of Law, Madrid; Pres., Justice andPeace Commission,
Spain
Lord President, Federal Court of Malaysia
Professor of Int'l Law, University of Bonn
Pres. Supreme Court, Cyprus; Member of European Com-
mission
Advocate, Kenya; Secr.-Gen., Inter African Union of
Lawyers
Attorney at Law, Indonesia
SECRETARY-GENERAL
NIALLMACDERMOT