Procedural fairness and judicial review of counter-terrorism measures

Abstract

This chapter argues for robust judicial review of counter-terrorism measures based upon a court’s inherent constitutional responsibility to protect procedural fairness against government limitations. Strong review is necessary in such cases due to the fundamental importance of procedural fairness to the rule of law in a liberal democracy. However, judges across jurisdictions often confront problems with judicial review arising from the tension between national security and human rights, the differences between national legal traditions that resist international standardization, and political pressures to get tough on terrorism. The difficulties with judicial review only increase as national security threats grow, however, so that judges often refrain from the effective review of controversial counter-terrorism measures that restrict procedural fairness. Accordingly, judicial review needs strengthening just when it appears to be at its most problematic and least justifiable. However, procedural fairness is constitutionally fundamental – and therefore in need of judicial protection – because it possesses a of virtues. This triad includes an epistemological virtue that seeks truth in law and fact, a structural virtue that stabilizes the domestic legal system, and an institutional virtue that protects courts from political interference. These virtues counteract the three problems of judicial review mentioned above, justifying robust review of any counter-terrorism measures that would weaken procedural fairness, especially at the point when it is threatened most. Because of these three virtues, courts are empowered to review counter-terrorism measures to ensure that they respect procedural fairness, regardless of any explicit constitutional or statutory authorization to do so.