Table of Contents

Judges as Guardians of Constitutionalism and Human Rights

Judges as Guardians of Constitutionalism and Human Rights

Edited by Martin Scheinin, Helle Krunke and Marina Aksenova

This book considers the many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. The contributors, both academics and judges, discuss key examples of contemporary challenges to judging – including the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms.

Chapter 8: Procedural fairness and judicial review of counter-terrorism measures

David Jenkins

Subjects: law - academic, constitutional and administrative law, criminal law and justice, human rights, law and society

Abstract

David Jenkins, Associate Professor of Law, University of Copenhagen. The main message of the author is to call for robust judicial review of counter-terrorism measures, based upon a court’s inherent constitutional responsibility to protect procedural fairness against government limitations. The tension between national security and human rights may result in that judges refrain from the effective review of controversial counter-terrorism measures. In the view of the author, however, it is typical for controversial counter-terrorism laws that they restrict procedural fairness. Therefore, judicial review needs strengthening just when it appears to be most problematic and least justifiable. The author warns against legal relativism, i.e. national differentiation justified by the context, in the judicial review of counter-terrorism measures and fears that also a comparative ‘best practices’ approach may suffer from problems of legal relativism and result in a ‘race to the bottom’. Although the challenges to the judicial review of counter-terrorism measures are real, insisting on fair procedures possesses three constitutional virtues that help to counteract these difficulties and actually empower courts to exercise proper review. These virtues, discussed in the chapter, are the epistemological virtue, the structural virtue and finally the institutional virtue which supports the separation of powers to preserve the independence of the judiciary.

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