Published in July 2018.
This module is a resource for lecturers
Exercises and case studies
This section contains suggestions for in-class or pre-class educational exercises, while a post-class assignment for assessing student understanding of the Module is suggested in a separate section.
The exercises in this section are most appropriate for classes of up to 50 students, where students can be easily organized into small groups in which they discuss cases or conduct activities before group representatives provide feedback to the entire class. Although it is possible to have the same small group structure in large classes comprising a few hundred students, it is more challenging and the lecturer might wish to adapt the facilitation techniques to ensure sufficient time for group discussions as well as providing feedback to the entire class. The easiest way to deal with the requirement for small group discussion in a large class is to ask students to discuss the issues with the four or five students sitting close to them. Given time limitations, not all groups will be able to provide feedback in each exercise. It is recommended that the lecturer makes random selections and tries to ensure that all groups get the opportunity to provide feedback at least once during the session. If time permits, the lecturer could facilitate a discussion in plenary after each group has provided feedback.
All exercises in this section are appropriate for both graduate and undergraduate students. However, as students' prior knowledge and exposure to these issues varies widely, decisions about appropriateness of exercises should be based on their educational and social context.
Research exercise 1
Undertake research to identify the key substantive and procedural requirements articulated by the United Nations Human Rights Committee in relation to derogations. Identify some of its key cases examining these issues. In what ways does the approach of the Committee differ with that of the Inter-American Court of Human Rights and European Court of Human Rights? Compare and contrast the approach of each of the three mechanisms. E.g. you could identify and compare one of the leading cases from each of the three mechanisms.
Research exercise 2
- Has your country ever declared a state of emergency? If so, in what circumstances? What impact did this have on the rule of law in your country?
- Has your country ever taken measures derogating from its obligations under an international or regional human rights treaty? Is there any relevant national case law that you can analyse?
- Is the approach of the national courts (unduly) deferential or (appropriately) robust towards the executive? If so, in what ways?
- Is the separation of powers - between the executive, legislature and judiciary - maintained in your country in emergency situations?
- Does your country's constitution and legislation regulate the conditions for derogation from human rights norms (or constitutional rights and freedoms) in a state of emergency? Are any rights established as non-derogable?
For each of the above questions: if your own country has not declared a state of emergency, then select another country in your own region which has.
Exercise 3: Write a Wikipedia page (see Teaching Guide)
As a group or individual student, assessed or non-assessed, exercise, produce a Wikipedia page on rule of law issues raised by states of emergency, such as the dangers of exceptionality, or seeking to 'balance', rather than to 'accommodate', security imperatives with the rule of law. This can be generic in nature and/or tailored towards individual countries.
Case study 1: Validity of derogations
The Landinelli Silva case *
Mr. Landinelli Silva and others were members of certain political parties in Uruguay and ran for public office as candidates of those parties in elections. Following a change in the political regime, these parties were declared illegal by government decree, which also deprived the parties' candidates at previous elections of the right to vote for 15 years. Uruguay sought to justify these measures by reference to a purported state of emergency. In its note to the United Nations Secretary-General, which was designed to comply with the requirements laid down in article 4(3) of the International Covenant on Civil and Political Rights, the Government of Uruguay made reference to an emergency situation in the country. No factual details were given. The note confined itself to stating that the existence of the emergency situation was "a matter of universal knowledge", without attempting to indicate the nature and the scope of the derogations actually implemented or the necessity of the measures in question.
The Human Rights Committee concluded that the conditions for a valid derogation were not satisfied. It observed that, "even on the assumption that there exists a situation of emergency in Uruguay, the Human Rights Committee does not see what ground could be adduced to support the contention that, in order to restore peace and order, it was necessary to deprive all citizens, who as members of certain political groups had been candidates in the elections of 1966 and 1971, of any political right for a period as long as 15 years … The Government of Uruguay has failed to show that the interdiction of any kind of political dissent is required in order to deal with the alleged emergency situation and pave the way back to political freedom."
Case of A and Others **
Following the terrorist attacks on the United States of America of 11 September 2001, the United Kingdom adopted legislation allowing the arrest and administrative detention of foreign nationals suspected by a government minister to be "international terrorists". The detention decision was subject to review by a special immigration appeals court. Accepting that these detention powers might be inconsistent with article 5(1) of the European Convention on Human Rights (which protects the right to liberty), the Government sought to avail itself of the right of derogation under article 15(1) of the Convention. It argued that foreign nationals present in the United Kingdom suspected of being involved in the commission, preparation or instigation of acts of terrorism constituted a threat to the national security of the United Kingdom and a public emergency.
A and others were foreign nationals living in the United Kingdom. The Government suspected them of being international terrorists. However, it considered that human rights law, specifically the principle of non-refoulement, prevented their deportation since they would have been at risk of torture in their countries of origin. The Government further considered that their prosecution in the United Kingdom would not be possible. The men were therefore placed in administrative detention under the new anti-terrorism legislation. The validity of the UK's derogation was examined by both the House of Lords as the United Kingdom's highest court, and the European Court on Human Rights. The Court observed that national authorities enjoyed a wide margin of appreciation in assessing whether the life of their nation was threatened by a public emergency. Weight had, therefore, to attach to the judgment of the Government, Parliament and national courts in this regard. With some hesitation, both the House of Lords and the European Court of Human Rights accepted the Government's view that there was a public emergency threatening the life of the nation which could justify derogations from the European Convention on Human Rights.
However, the House of Lords and the European Court on Human Rights also both took issue with the fact that the special administrative detention powers could be exercised only against foreign nationals and not against UK citizens suspected of being international terrorists. The two courts were not persuaded by the Government's reasons for this difference in treatment. The House of Lords and the European Court on Human Rights concluded that the derogating measures were disproportionate in that they discriminated unjustifiably against non-nationals, and therefore did not accept the validity of the derogation.
* United Nations, Human Rights Committee (1981). Landinelli Silva v. Uruguay, Communication no. 8/34. 8 April. Supp. No. 40 (A/36/40), p. 130.
** A. and Others v. the United Kingdom (Application no. 3455/05), Judgment of 19 February 2009, European Court of Human Rights.
Case study 2: Philippines (constitutionality of declaration of martial law)
The Lagman Case *
Petitioners in this case questioned the declaration of martial law by President Rodrigo R. Duterte in Marawi City, in the Philippines. The facts are that on 4 September 2016 President Duterte first declared a state of national emergency (Proclamation 55) on account of lawless violence in Mindanao, triggered by the Maute terrorist group's attacks in February 2016 in Butig, Lanao del Sur and the mass jailbreak in Marawi City in August 2016. On 23 May 2017, the Maute group took over a hospital in Marawi City, Lanao de Sur, established check points, burned down government facilities and inflicted casualties on government forces, and started flying the flag of the Islamic State of Iraq and the Levant (ISIL). In response, President Duterte declared a state of martial law (Proclamation 216) in the Mindanao group of islands for a period not exceeding 60 days and the privilege of the writ of habeas corpus was also suspended. Pursuant to the Constitution, the President submitted a report to Congress establishing the factual basis of Proclamation 216.
Petitioners challenged the factual basis of Proclamation 216, arguing that it failed to satisfy the criteria under the Constitution because there was neither the occurrence of a rebellion or invasion; that the act of terrorism did not constitute rebellion; and, that the extraordinary powers of the President (i.e. calling out powers, suspension of the privilege of the writ of habeas corpus, and declaration of martial law) should be exercised sequentially.
The Supreme Court established the rule that its power to review the extraordinary power to declare martial law or suspension of the privilege of the writ of habeas corpus under the 1987 Constitution is distinct from its ordinary certiorari powers. An inquiry into the sufficiency of the factual basis for the declaration of martial law or suspension of the privilege of the writ of habeas corpus is not a political question. Three parameters must be satisfied initially by the Court, namely: (a) actual (not merely threat of) the existence of rebellion or invasion; (b) public safety; and, (c) probable cause, meaning, the common sense that more likely than not a crime has been committed and there is no need to resort to calibration of rules of evidence but only to weigh facts and circumstances.
The Supreme Court made the following determinations. The precise extent or range of rebellion cannot be measured by exact metes and bounds. Rebellion may, in fact, be a predicate crime under a special law on terrorism (The Human Security Act of 2007). On the matter of sequential exercise of the President's extraordinary (Commander-in-Chief) powers, the Court held that it is not exclusive but merely refers to scope. A nullification of Proclamation 216 (martial law) does not affect the prior Proclamation 55 (calling out the Armed Forces of the Philippines (AFP)). In comparing the two sets of powers, the Supreme Court emphasized that the Court, in reviewing the calling out power, could only examine whether the President acted within permissible constitutional boundaries and not with grave abuse of discretion; and that ordinary police action may be undertaken, but the actual use of the AFP is not within its scope of judicial review.
In the case of martial law or suspension of the privilege of the writ of habeas corpus, a 60-day period for suspension is imposed subject to simultaneous congressional and judicial review and liberties may be temporarily curtailed. In the exercise of judicial review, absolute correctness of the facts underlying martial law or suspension of the privilege of the writ of habeas corpus is not necessary. Significantly, the Court held that Proclamation 216 was constitutional (Congress even allowed the extension of martial law beyond the 60-day period).
* Lagman v. Hon. Executive Secretary Medialdea , July 4, 2017,Supreme Court of the Philippines, G.R. Nos. 231658, 231771 and 231774.