Edited by Martin Scheinin, Helle Krunke and Marina Aksenova
Chapter 8: Procedural fairness and judicial review of counter-terrorism measures
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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