When the attacks in Paris on 13 November 2015 shattered previous conceptions about the ability of ISIS to strike targets outside of its immediate territorial reach, the French government reacted quickly to the new threat. President Hollande declared a state of emergency, invoking Article 16 of the French Constitution. In doing so, he addressed two major short term goals of any state of emergency, reassuring the public and insuring national security.
But what costly seed has been planted by Hollande’s reaction? Suspending usual limits on police power has allowed for warrantless searches and much lower standards for police to carry out house arrests and to place strict limitations on public protest and gathering. It was used to justify the assault on a Paris suburb in search of co-conspirators to the attacks, an act which left a residential building partially gutted.
And the violation of civil liberties extended beyond immediate efforts to combat terrorism. The state of emergency has continued long since the threat of the initial incident subsided, with the General Assembly granting President Hollande a three month extension of the original 12 day emergency to end in late February. In addition to an extension of the temporal frame, the scope of the emergency has bled into public action outside of terrorism. Protests of the Paris Climate Summit were muted as individuals were kept under house arrest and prevented from public gathering. While ostensibly to protect against terror, the state of emergency vastly enhanced state power across the board.
Last Thursday, ISIS demonstrated again its ability to project armed attacks at targets once thought secure from its reach. A few days after new broke of an ISIS-affiliated group solidifying its presence in the neighboring Southern Philippines, Indonesia suffered suicide bombings and a prolonged gun battle in its capital, Jakarta.
Both Paris and Jakarta once were thought immune to ISIS’s terror, and they are now joined in the fact that ISIS has violently rectified that perceived immunity. Yet from this act has sprung two drastically divergent reactions to terror. President Joko Widodo (Jokowi), unlike President Hollande, refrained from declaring a state of emergency under Article 12 of the Indonesian Constitution.
What is different? For one, the French Constitution is infamous for containing one of the most expansive emergency clauses in the world, granting the executive broad powers to suspend civil liberties for an initial period of thirty days, subject to renewal by a Parliamentary vote. Advisory opinions from the Constitutional Council evaluate the President’s authority to declare an emergency.
The French Constitution’s emergency clause is exceeded in its broad grant of executive power by the Indonesian Constitution, which places few ex ante checks on executive power, and therefore little in the way of law to prevent the Indonesian President from rapidly expanding power to address an emergency, disregarding the long term effects of authoritarianism for the short term veneer of national security. Such was the case in the late 1950s, which triggered a growth in military power which eventually led to Suharto’s thirty-year dictatorship.
Despite commanding such massive legal authority, President Jokowi has reiterated that the norms of the Indonesian constitutional regime will continue. Thus far, there is no indication he will trigger his Article 12 powers, though the constitution certainly allows him to do so. In addressing the public after the attacks, he maintains that a continuation of the social and political norm, not a deviation from it, will insure the endurance of Indonesia’s republic in the face of foreign terror. Indonesian counter-terror units, not militarized police under an emergency regime, pursue terrorist targets.
How ought states respond to foreign non-state combatants, or proto-state actors, against whom conventional war is ineffective or even counterproductive? National security and assurance of a worried public must be balanced against the vitality of the democratic order enshrined in the state’s fundamental laws and duties.
States of emergency arise from a long tradition, most famously in antiquity during the Roman era, to create provisional executive powers when facing existential emergencies. The Roman Dictator was created by the legislature and given complete authority over the military and bureaucracy, as well as granted legal immunity during the emergency for violations against individual liberties, at the time mostly pertaining to property and contracting rights. Perhaps this example justifies the modern constitutionalized deviation to face terrorism. After all, the Roman Republic survived nearly 500 years relying on dictators to face barbarian attacks which threatened to end the Republic.
Yet one must also keep in mind that the ISIL attacks in Paris and Jakarta, though grave challenges to the authority of the state, were no threat to the existence of those two republics. Further the Roman Republic was extinguished by the act of its final dictator, Gaius Julius Caesar, Dictator Perpetuus. And finally, it would seem odd for the leader of a major European power to brand enemies as faceless invaders to justify a war of civilization against barbarism, a mere 50 some years after Algerian independence.
That France’s state of emergency is legal and constitutional cannot be doubted. But when terrorist attacks so shock a nation’s collective imagination as to conjure up an existential threat, real or imagined, that justifies suspension of the constitution’s usual checks and balances, one must question the prudence of these measures. This is especially true as President Hollande opened 2016 with calls for extending the period of emergency and amending the constitution to further restrict civil liberties in a way that would discriminate against the Muslim minority population in France.
It is further questionable when an alternative way forward has been demonstrated by President Jokowi’s restraint in Indonesia, reassuring the people not only that terrorism will be fought and can be fought effectively, but also that in such a battle no amount of collateral damage will harm the fundamental rights enshrined in that nation’s fundamental legal and political document.