ComparativeConstitutions.org

Syria Presses on with Constitutional Referendum

noreply@blogger.com (Tom Ginsburg) — Fri, 10 Feb 2012 21:06:00 +0000

Russia's support for beleaguered Syrian President Bashar al-Assad remains fiercely intact despite international condemnation of its veto at the UN Security Council. Following a meeting between al-Assad and Russian Foreign Minister Sergei Lavrov earlier this week, Syria insists on dialogue and national solutions, the only remaining one being the original constitutional referendum plan issued by al-Assad last October as part of a larger package of reforms. According to state-run media outlet SANA, a draft was submitted to the President a few days ago. Earlier today, Russian Deputy Foreign Minister Sergei Rybakov applauded the new constitutional draft as a major step towards elections. Lavrov also announced that Syria will set a date for its constitutional referendum soon.

The most controversial article of the current 1973 constitution is Article 8, which establishes the socialist Baathist party as "the leading party in the society and the state." Long unpopular with Syrians, the article entrenches the current regime and could fuel civil war if retained in the new draft. Al-Assad promised this section of the constitution would receive particular attention by the drafting committee. However, with its membership drawn mostly from the Baathist party and the eleven other parties comprising the pro-regime National Progressive Front, genuine reform is inconceivable. This constitutional process remains in the control of the current government, with the Arab League's plan for a constitutional assembly to form five months after new elections roundly defeated at the UN. Despite President Obama's latest condemnation of the constitutional promise, the lack of an actionable intervention plan and apparent international will to check massive violence in Syria allows this constitutional chimera to live on.

--Cindy Tan

New York Times: "We the People" Loses Appeal to People

noreply@blogger.com (David Law) — Mon, 06 Feb 2012 17:45:00 +0000

The online version of Adam Liptak's piece in the New York Times on the declining appeal of the U.S. Constitution as a model to foreign countries is here.

Justice Ginsburg to Egypt: Don't copy the U.S. Constitution

noreply@blogger.com (David Law) — Sat, 04 Feb 2012 19:49:00 +0000

Let's say you're a newly democratizing country – say, Egypt – in the market for a new constitution. What constitutions, if any, should you consider as models in drafting your own? According to Justice Ginsburg, the answer is, maybe Canada or South Africa, or constitutions written after World War II more generally. But ... not the U.S. Constitution itself. Video clip of her comments (televised in Egypt) here; partial transcript here.

Adam Liptak of the New York Times has a column scheduled for publication on Tuesday in which he will be taking on the topic of the (declining) influence of the U.S. Constitution as a model for constitution-makers in other countries. The column will touch upon Justice Ginsburg's comments, as well as a forthcoming article that Mila Versteeg and I wrote entitled "The Declining Influence of the United States Constitution" (SSRN link here; look for it in the NYU Law Review come June). (Full disclosure: No, the Comparative Constitutions Blog doesn't have spies inside the New York Times; I received a call from Mr. Liptak earlier this week.)

The question of where constitutional drafters should and actually do look for inspiration has always been a topic of tremendous interest and importance to other countries, not to mention comparative constitutional law scholars. Quite possibly, Justice Ginsburg's comments and some media coverage could (re)focus the attention of a wider audience on comparative constitutional law in a way we haven't seen since the initial furor over Supreme Court citation of foreign law in hugely controversial cases such as Lawrence v. Texas. And to the extent that this new topic attracts the attention of non-comparative constitutional scholars, perhaps the focus might even shift away from the usual scholarly preoccupation with judicial interpretation, toward the actual writing of constitutions in other countries (or, failing that, how the U.S. Constitution itself could perhaps be revised). That would, in my view, be an extremely healthy thing.

POSTSCRIPT: Predictably, the legal blogosphere has taken note of Justice Ginsburg's comments. Fellow Canadian Paul Horwitz at PrawfsBlawg; and, pleasantly enough, The Volokh Conspiracy coming to Justice Ginsburg's defense and suggesting that her comments are perfectly fair, not inappropriate, etc.

Constitutional jurisprudence in paradise (Seychelles)

noreply@blogger.com (Ran Hirschl) — Wed, 01 Feb 2012 20:20:00 +0000

[I am delighted to post this note on behalf of the Honorable Justice Anthony Francis T. Fernando of the Court of Appeal, Seychelles - the highest court in that small Indian Ocean country. It concerns an important election appeal ruling rendered by the Seychelles Court of Appeal in December 2011. Seychelles was a single-party country until the early 1990s, before moving to a democratic model over the last two decades. The case and full judgment (see link below) are a good illustration of a number of things, among them the reliance on constitutional law and courts for dealing with high politics (see also the recent events in Senegal and in Papua New Guinea), as well as reference to foreign case law in a seldom studied jurisdiction. It also shows how a thoughtful, well-reasoned decision may increase a court's credibility even in a politically charged setting]. RH

Note on PDM VS Electoral Commission (2011):

The issue that came up for determination before the Seychelles Court of Appeal in the case of Popular Democratic Movement VS The Electoral Commission, an appeal from a judgment of the Constitutional Court of Seychelles; was whether it is the total votes cast including votes which had been rejected; OR the valid votes cast that has to be considered in relation to the determination of the number of ‘proportionately elected members’ a political party may nominate after a general election to the National Assembly. The votes polled by PDM at the 2011 General Elections held in the Seychelles, if determined on the basis of the total votes cast, worked out to 7.4% and if determined on the basis of valid votes, 10.9%.

The National Assembly of the Seychelles consists of 25 members directly elected from the 25 electorates and not more than 10 members elected on the basis of proportional representation. The Constitution provides that “A political party which has nominated one or more candidates in a general election and has polled in respect of the candidates in aggregate 10% or more of the votes cast at the election may nominate a proportionately elected member for each 10% of the votes polled”.

In the Preamble to the Constitution, which is an integral part of the Constitution, the people of Seychelles, have, solemnly declared their unswaying commitment, to develop a democratic system.

The Constitution specifies that Seychelles is a sovereign democratic Republic. It is democratic because the Constitution ensures the creation and existence of the government at the will of the people through their participation in the formation of the government at regular intervals.

No doubt as a general proposition one’s right to vote undoubtedly includes his right not to vote or spoil his vote but to equate that right to his constitutional right “to take part in the conduct of public affairs” or to treat that as an exercise of one’s “individual rights and freedoms with due regard to the rights and freedoms of others and the common interest” and generally, to strive towards the fulfillment of the aspirations contained in the Preamble of the Constitution”, namely to “develop a democratic system”; is farfetched. The rights and duties of a citizen set out in the Constitution places an obligation on a citizen to cast a valid vote. The Elections Act enacted in accordance with the Constitution to regulate the right to vote specifies the procedure for voting. Thus the voter must comply with this procedure in exercising his right to vote.

Consequently in determining the membership of the National Assembly whether ‘directly elected’ or ‘proportionately elected’ it is only the wishes of those who decided to cast their votes correctly in favour of a candidate that should be considered.

Furthermore, it would be an anomaly if ‘directly elected’ members were to be determined on the basis of the valid votes cast and the ‘proportionately elected’ members were to be determined on the basis of the total votes cast.

Justice Anthony Francis T. Fernando
Court of Appeal, Seychelles

Ban Ki-Moon on gay rights in Africa

noreply@blogger.com (David Law) — Tue, 31 Jan 2012 04:26:00 +0000

It's no secret that the treatment of gays and respect for gay rights in Africa can be spotty at best. (See, e.g., previous coverage on this blog of a particularly chilling chain of events in Uganda here, here, and here. And let's not forget Zimbabwe either.)

A welcome gesture, then, that UN Secretary-General Ban Ki-Moon used the occasion of an address to the African Union yesterday to urge its leaders to respect gay rights (coverage courtesy of the BBC). He criticized the treatment of gays as "second class citizens or even criminals" and suggested that the "ideas" behind the Universal Declaration of Human Rights require countries to reject such discrimination.

Also worth noting: the mention in the article of efforts by the US and UK to condition foreign aid upon decriminalization of homosexuality. Now there's some fodder for the Republican primary just waiting to happen.

Senegal: Court Clears Wade for Third Term

noreply@blogger.com (Tom Ginsburg) — Sat, 28 Jan 2012 13:30:00 +0000

Yesterday, Senegal's Constitutional Council ruled that President Abdoulaye Wade can run for a third term, and that popular musician Youssou N'Dour could not run. Riots erupted, leaving a policeman dead. As we described earlier, Wade is relying on a somewhat tortured, though not insane, reading of the constitutional scheme as amended since he acscended to power in 2000. Wade follows the pattern of the long-time opposition leader who calls for democracy, then finds giving up power undesirable.

Wade was originally elected to a seven year term, renewable once, under the prior constitution in 2000. After taking office a new constitutions was adopted, reducing the presidential term to five years, after he completed his first. In 2007 he was re-elected and secured an extension of the term to seven years for future elections. He then argued that his second term was in fact the first one served under the new constitution. There is a genuine legal issue as to whether terms in prior constitutions ought to be counted in any term limits scheme, but the danger of self-dealing suggest that the answer ought to be yes.

When I was in Dakar last month, I found mixed views about Wade, but there were visible signs of disatisfaction with his regime, as evidenced in the photos above!

--TG

A Constitutional State of Emergency in Nigeria

noreply@blogger.com (Daniel Lansberg-Rodriguez) — Thu, 26 Jan 2012 03:58:00 +0000

Last Saturday a terrorist attack by the Islamist insurrectionist group Boko Haram killed well over 100 people in the Nigerian city of Kano. This tragic event may have strengthened the domestic position of beleaguered Nigerian president Goodluck Jonathan at a time when sectarian violence, and increasingly visible popular protests against rising gasoline prices, seem to be pushing the West African nation to the brink of chaos.

On its face, the Boko Haram attack would seem to validate a series of controversial moves made by Jonathan over the last few weeks. On January 1st, the president declared a state of emergency over a small region of the Nigerian North, and one week later expanded it to encompass 15 Nigerian States.

When operating under a state of emergency, a Nigerian president is empowered to make laws and to execute them immediately even where the state competencies affected would normally fall under the purview of Nigeria’s highly independent state and regional governments. The power also allows the executive to overstep, with some exceptions, the limitations on power arising from constitutional guarantee of fundamental rights.

In a region with a troubling history of autocrats unnecessarily invoking emergency provisions so as to consolidate power and rule by decree, such declarations can understandably be met with a high degree of suspicion. Section 305 of the 1999 Nigerian Constitution provides for the imposition of a state of emergency in the country, or a part of it, through the official gazette under the following circumstances:

(3) The President shall have power to issue a Proclamation of a state of emergency only when -

(a) the Federation is at war;

(b) the Federation is in imminent danger of invasion or involvement in a state of war;

(c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;

(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation;

Prior to the Kano attack, President Jonathan’s stated motivation for the state of emergency (ie. “crushing” Boko Haram by seizing control of uncoordinated regional security apparatus and border controls while creating a special counter-terrorism unit from scratch) had been impugned by both international observers and domestic critics for being disingenuous. The Nigerian Constitution does not allow for emergency executive power to suppress peaceful protests, but does do so in situations involving armed rebellion or an existential threat to the state. As such, the move was initially criticized as a red herring, a cynical power grab aimed at empowering Jonathan’s administration to subvert state powers and repress the Nigerian citizenry with impunity by deliberately exaggerating the threat posed by Boko Haram.

In light of events over the weekend however, criticism has died down considerably. Ironically, by reinforcing the perception that the Islamists do represent an immediate and existential threat to Nigeria’s existence, the attack may have thrown President Jonathan a much-needed lifeline. That being said, Boko Haram has previously stated that they recognize neither the federal constitution nor the authority of President Jonathan.

Scholarly Announcements for Comparativists

noreply@blogger.com (Richard Albert) — Wed, 25 Jan 2012 17:45:00 +0000

Below, I'm pleased to share three announcements from two groups with which I'm involved. The first is a new Call for Papers from the AALS Section on Law and South Asian Studies. It is open to all comparativists irrespective of seniority.

The next two are targeted to younger comparativists, defined as scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2012. These two announcements are both issued by Younger Comparativists Committee in the American Society of Comparative Law and involve the following: (1) a Call for Papers; and (2) an invitation to serve on one of the Younger Comparativists Committee's three advisory groups.

More details follow.

I. CALL FOR PAPERS

Topic: Legal Education & Legal Reform in South Asia
For: AALS Section on Law and South Asian Studies, Panel at Annual Meeting, 2013, New Orleans

The Section on Law and South Asian Studies of the AALS seeks outstanding proposals relating to the topic of of legal education as a vehicle for legal reform in South Asia. The selected proposals will be the basis for presentations at the AALS Annual Meeting to be held in New Orleans in early January, 2013. Topics relating to any country within South Asia, including Afghanistan, Bangladesh, Bhutan, Burma, India, Nepal, Pakistan, Sri Lanka, will be appropriate. Possible topics include: curricular reform; regional and comparative legal education reforms; the training of lawyers and judges as actors for social and legal change; the conservative pull of legal education; evolution of clinical legal education; the role of externships in institutional reform; the role of US law school programs in legal change. Please send a 500-1000 word proposal to the chair of the Section, Shubha Ghosh, at ghosh7@wisc.edu ghosh7@wisc.edu by February 24, 2012.

II. CALL FOR PAPERS

The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its inaugural conference to be held on April 20, 2012, at George Washington University Law School in Washington, DC. The purpose of the conference is to highlight and develop the scholarship of new and younger comparativists, hence the title of the conference: New Perspectives in Comparative Law.

Submissions will be accepted on any subject of public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2012.

Members of the Younger Comparativists Committee’s Scholarship Advisory Group will review submissions with the authors’ identities concealed. The Scholarship Advisory Group will select a best paper which will be showcased during a plenary panel with comments from senior scholars in the area. Other papers will be assigned to separate panels according to subject.

The American Society of Comparative Law has generously agreed to provide a limited number of modest stipends toward travel expenses for participants with a demonstrable need of financial assistance.

To submit an entry, scholars should submit completed papers no longer than 30,000 words (including footnotes) no later than February 15, 2012, to Judy Yi at the following address: judy.yi@bc.edu. Papers should reflect original research that will not yet have been published by the time of the conference. The paper should be accompanied by a separate cover sheet indicating the author’s name, title of the paper, institutional affiliation, and contact information. The paper itself must not contain any references that identify the author or the author’s institutional affiliation.

The final conference program will be circulated no later than March 26, 2012.

The Younger Comparativists Committee is delighted to thank George Washington University Law School for serving as our host for the conference, in particular Claudia Haupt for coordinating the event, and Markus Wagner of the University of Miami School of Law for chairing the Program Committee.

Please direct all inquiries to Richard Albert, Chair of the Younger Comparativists Committee, by email at richard.albert [at] bc.edu or telephone at 617.552.3930.

III. INVITATION TO SERVE ON ADVISORY GROUPS

Dear Fellow Younger Comparativists,

As you may know, the Younger Comparativists Committee ("YCC") conducts its work with the help of three advisory groups. Each advisory group is composed of younger comparativists who volunteer their time to help advance the academic and professional interests of their fellow younger comparativists.

Advisory groups are new to the YCC. We created them last year in March 2011. They have been immensely successful, thanks to the enthusiasm, industry and innovation of its members.

The term of each of the inaugural advisory groups is coming to a close. I am therefore writing to invite you to participate in the work of the YCC by expressing your interest in joining one of the advisory groups.

Below, I have pasted the membership and mission statements for each of the advisory groups. These mission statements were developed by the members of each of the advisory groups in consultation with the YCC. They will give you an overview of each advisory group's responsibilities.

I invite you to express your interest to me by February 1, 2012.

In the meantime, my best wishes for this new year.

Sincerely,

Richard
Chair, Younger Comparativists Committee

______

I. Scholarship Advisory Group

The Scholarship Advisory Group consists of Wulf Kaal (St. Thomas University--Minneapolis) (chair), Fiona De Londras (University College Dublin), David Landau (Florida State University), Salil Mehra (Temple University) and Adam Shinar (Harvard University).

The mission of the Scholarship Advisory Group of the Younger Comparativists Committee (“YCC”) is to identify and support scholarship of younger comparative law scholars in the American Society of Comparative Law (the “Society”) and worldwide, and to facilitate the scholarly exchange of ideas and research in all areas of comparative law. To this end, the Scholarship Advisory Group will:

1. Serve as the body responsible for advising the YCC as to which submissions should fill the YCC’s panel at the Annual Meeting of the Society;
2. Compile, archive and circulate by email once per quarter to the YCC distribution list a collection of new comparative law scholarship by scholars whose scholarly experience does not exceed ten years as of July of the current calendar year.

II. Membership Advisory Group

The Membership Advisory Group consists of Claudia Haupt (George Washington University) (chair), Joel Colon-Rios (Victoria University), Rajeev Kadambi (Jindal Global Law School), Aoife Noalan (Durham University), Anna Su (Harvard University) and Po-Jen Yap (University of Hong Kong).

The mission of the Membership Advisory Group of the Younger Comparativists Committee (“YCC”) is to identify younger comparative law scholars in the American Society of Comparative Law (the “Society”) and worldwide, and to facilitate the scholarly exchange of ideas and research in all areas of comparative law. To this end, the Membership Advisory Group will:

1. Compile and maintain a database of comparative law scholars worldwide whose scholarly experience does not exceed ten years as of July of the current calendar year;
2. Communicate information on new scholarship in the area of comparative law in coordination with the Scholarship Advisory Group;
3. Invite the participation of current members, prospective members and other interested younger scholars in the Society’s activities in coordination with the Linkages & Engagement Advisory Group.

III. Linkages & Engagement Advisory Group

The Linkages & Engagement Advisory Group consists of Jill Goldenziel (Harvard University) (chair), Trey Childress (Pepperdine University), Rosalind Dixon (University of Chicago), Pascale Fournier (University of Ottawa) and Madhav Khosla (Harvard University).

The mission of the Linkages and Engagement Advisory Group of the Younger Comparativists Committee (“YCC”) is to identify and develop opportunities for younger comparative law scholars in the American Society of Comparative Law (the “Society”) to engage in scholarly exchanges both within the Society and in cooperation with other organizations that involve younger scholars engaged in the study of comparative law.

To this end, the Linkages and Engagement Advisory Group will:

1. Establish liaisons to other organizations involved in the study of comparative law to identify opportunities for younger comparativists;
2. Communicate those opportunities to younger comparativists in the Society in coordination with the Membership Advisory Group;
3. Invite the participation of current members, prospective members and other interested younger scholars in the Society’s activities in coordination with the Membership and Scholarship Advisory Groups.

"Guiding Cases" in China

noreply@blogger.com (Richard Albert) — Thu, 19 Jan 2012 00:47:00 +0000

The Supreme People's Court of the People's Republic of China has begun the practice of announcing "guiding cases." These are cases that, as explained here, "provide guidance to people's courts in hearing similar cases and handing down judgments, and reference shall be made by judges in hearing similar cases and cited as the basis for reasoning in judgments."

This appears to be quite a significant development. Professor Wu Shuchen of Shandong University describes it this way: "The effect of the Guiding Cases system is as follows: first, it significantly limits the discretionary power of judges and effectively avoids the defect of different verdicts for similar cases; second, it significantly reduces the uncertainty and unpredictability of the law."

Stanford Law School has recently created the China Guiding Cases Project to catalogue the guiding cases, to provide commentary and legal analysis on those cases, and generally to follow these and other fascinating developments in the Chinese legal system.

South Sudan constitutional process beginning

noreply@blogger.com (Tom Ginsburg) — Sat, 14 Jan 2012 13:57:00 +0000

The world’s newest country, South Sudan, has been wracked by serious inter-ethnic conflict in recent weeks, in which cattle raids have escalated to large-scale pogroms between Nuer and Murle ethnic groups. The situation seems to be deteriorating rapidly, and presents serious challenges to the Government as well as international peacekeepers, who have been unable to stop the violence.

While it will have little immediate impact, one key step in building the state is taking place in Juba, where the process of making the Permanent Constitution is just beginning. Last week, the President called a meeting to consult on appointments to a new Constitutional Review Commission, which will have one year to review the current Transitional Constitution and to propose changes. While the original proposal seems to have been for eleven members, opposition groups pushed for the expansion of the Commission to 45 total members. This is sure to produce greater representation, but could also generate an unwieldy body unable to engage in meaningful deliberation. Much political skill will be required to keep the Commission on track to accomplish its heavy workload.

The process is governed by Sections 202 and 203 of the Transitional Constitution, which does not provide the number of members on the Commission. Besides constitutional reform, the Constitutional Review Commission is to conduct a civic education program, and will have to consult widely to solicit input; for this task, more members might be helpful.

After the draft is prepared by the Constitutional Review Commission, a National Constitutional Conference will be established to deliberate on the draft and gather public input. The whole process must be completed by October 2014 at very latest.

--TG

Progress in Fiji?

noreply@blogger.com (Tom Ginsburg) — Sun, 08 Jan 2012 21:24:00 +0000

The recent developments in Myanmar remind us that even cosntitutions adopted with low expectations can mark significant political change. In this light, it is worth watching forthcoming developments in Fiji, where military strongman Voreqe Bainimarama yesterday lifted the three-year-old state of emergency, and announced the need to move toward a new constitution. The new draft, he says, will be based on the principle of one-man, one-vote, and will not use ethnicity as a formal basis for politics. The state of emergency was declared after the Court of Appeals found that Bainimarama’s 2006 coup was illegal.

Bainimarama is sticking with a timetable he announced back in 2009, when he said that the constitution-making process would begin in September 2012. Bainimarama appears commited not to reinstate the abrogated 1997 constitution. That document, which led to the election of Fiji’s first-ever ethnic Indian government, was blamed for perversely reinforcing the ethnic bases of politics, despite its intentions otherwise. It remains to be seen whether the new drafting process will use the 1997 text as an informal basis. This approach might save some drafting energy while allowing for the mitigation of the electoral institutions that exacerbated ethnic conflict.

Back in 2009, Bainimarama also said that the process would involve wide consultation among stakeholders. It remains to be seen whether he will deliver on this promise.

--TG

Hungary's New Constitution

noreply@blogger.com (Richard Albert) — Wed, 04 Jan 2012 00:58:00 +0000

The new constitution of Hungary—called the Fundamental Law of Hungary—became effective a couple of days ago on January 1, 2012. The day after its coming into force, thousands of Hungarians gathered in Budapest to protest the nation's new constitution. Analyses of the day's events are available here, here and here. Princeton's Kim Lane Scheppele is quoted offering some noteworthy observations near the end this article here.

The Hungarian Parliament adopted the new constitution on April 25, 2011. The full text is available here.

Japan Equality Case

noreply@blogger.com (Tom Ginsburg) — Tue, 20 Dec 2011 06:55:00 +0000

The Tokyo District Court just handed down a decision finding that a national university's (Tokyo Institute of Technology or TIT) denial of admission to a foreign student was unconstitutional. The case concerned an Iranian student, a refugee in Japan, who applied to the Department of Nuclear Engineering at the TIT. TIT denied his application on national security grounds, citing the Iranian government's effort to acquire nuclear weapons capacity, and referring to a UN resolution asking member state to keep citizens of Iran from access to education regarding nuclear technology. The Iranian student filed a suit for damages against TIT. On Dec. 19, 2011, a panel of the Tokyo District Court, presided over by Judge Kobayashi, held that TIT discriminated the student on basis of his nationality, violating Article 14 of the Japanese Constitution (the equality clause). The Court found that TIT failed to consider the student's refugee status, and that his application had nothing to do with the Iranian government's nuclear program. But the court did not grant injunctive relief to give the student admission, saying that the conclusion will be left to TIT after it reopens the reviewing process. It also denied the student’s claim for damages, saying TIT’s action did not meet the standard of negligence, which is required under the relevant government compensation statutes. Still, the decision represents a very rare instance of Japan’s lower courts applying Article 14 to foreigners in such a context.

--Tokujin Matsudaira

Egypt's landmines

noreply@blogger.com (Tom Ginsburg) — Wed, 07 Dec 2011 10:25:00 +0000

Nathan Brown has a nice analysis of the Landmines in Egypt's Constitutional Roadmap over at Carnegie Endowment website. His basic theme is that the current timetable, by potentially holding presidential elections after the process of drafting the constitution, will allow the military to be able to control the latter process.

I have two questions about the analysis. First is the grand normative one of whether a Turkish model is really so bad for Egypt. Will a military dominated constitutional order be worse for Egyptians than one dominated by a Salafist-controlled parliament? I'm no expert on the country or region but this strikes me as the ultimate question for policy-makers to consider, and one for which sound arguments exist on both sides. Second, a process produced under a civilian president with a new mandate is likely to succumb to the same concerns of self-interest and entrenchment as one produced by a military which knows it must ultimately return to the barracks.

--TG

Foreign Affairs article on Arab Spring Constitutionalism

noreply@blogger.com (Daniel Lansberg-Rodriguez) — Thu, 01 Dec 2011 10:01:00 +0000

Anthony Billingsley has written an interesting article on constitution-making in the wake of the Arab Spring for Foreign Affairs.

Egypt update from International IDEA

noreply@blogger.com (Tom Ginsburg) — Mon, 28 Nov 2011 17:39:00 +0000

As Egypt goes to the polls to begin its long process of electing a parliament, I recommend taking a look at an analysis produced by International IDEA of the "Fundamental Principles" document released earlier this month. The document has been widely criticized for trying to cement a role for the military in future politics.

His summary: "The draft version of the ‘Fundamental Principles’ that was circulated on 1 November 2011 is flawed in a large number of respects. Although its preamble seeks to portray the document as being non-binding and subject to popular sovereignty, its drafters clearly seek to impose all its provisions on the future constituent assembly’s work. Despite the lack of consensus between Egypt’s political parties on the issue, the November draft seeks to impose a particular type of relationship between religion and the state without the opportunity for a transparent and inclusive national debate. The November draft also seeks to grant the armed forces powers that are not in conformity with Egyptian constitutional tradition, with comparative constitutional practice or with general democratic principles. This applies not only to issues such as the military’s budget, but also to the amount of control that the Supreme Council for the Armed Forces can exercise over the drafting of the constitution by the coming constituent assembly.

The limitations that the November draft seeks to impose on that process, if implemented, will likely impair its democratic legitimacy and the future constitution’s ability to establish an improved system of governance. Finally, the November draft’s provisions on fundamental rights are lacking in detail and leave the door open to abuse by the executive branch of government. If the Egyptian government is to continue with its initiative to draft and issue a text on ‘Fundamental Principles’, these issues, amongst many others, must be resolved."

--TG

Japan’s Supreme Court finds lay participation in criminal trials constitutional

noreply@blogger.com (Tom Ginsburg) — Mon, 21 Nov 2011 12:54:00 +0000

On November 16, 2011 Japan’s Supreme Court ruled that the country’s new “saiban’in” system of citizen participation in serious criminal trials was constitutional. Issued unanimously by all fifteen of the court’s judges sitting en banc as a Grand Bench, this ruling effectively eliminates any constitutional doubts about the system which may have lingered after it commenced operations in May of 2009.

The saiban’in system, often called the “lay judge” system in English, adds six randomly-chosen lay judges to the panel of three professional judges which Japanese courts have traditionally used for trying serious criminal offenses (the law also allows for a court comprised of one professional and four lay judges for cases when there are no significant factual issues). The lay judges sit with the professional judges during the trial and have the opportunity to question witnesses. After the trial is over the lay judges deliberate with the professional judges to reach a verdict and decide upon sentencing in the event of a conviction.

The role of the lay judges is limited to helping evaluate the facts and decide upon punishment – questions of law and legal interpretation are left to the three professional judges (since all interactions between the professional and lay judges are conducted in secret, so this aspect of the system’s function remains murky). Verdicts are reached through a majority which must include at least one professional judge.

The appellant in the case was a Philippine woman who was sentenced by the new system to a hefty prison sentence for drug smuggling. In her appeal a number of claims were made including that the lay judge system violated the constitution, including the Article 32 right to access to the courts, the Article 37 right to a trial by an impartial tribunal and the due process requirements of Article 31. These claims are tied to claims under Chapter VI of the constitution (the section dealing with the judicial branch) including Article 76, which requires judges to be independent and prohibits special courts, and Article 80 which requires judges of inferior courts to be appointed by the cabinet for a period of ten years. Distilled to its essentials, the appellant’s principal argument appears to have been that since lay judges do not meet the criteria mandated by the constitution for judges exercising the judicial power yet are in a position to influence those professional judges who do, the procedural requirements imposed by the constitution on criminal trials have not been met.

The Supreme Court rejected these arguments, referring to the widespread use of civic participation schemes in the criminal justice systems of other countries as well as the principals of popular sovereignty underlying the Japanese constitution. Drawing an interesting distinction between the pre-war Meiji constitution which gave Japanese people the right to a trial by a judge, and the current constitution which speaks in terms of trials by a court, the grand bench essentially declared that a system of civic participation in which professional judges played a leading role would not violate the constitution.

That the Supreme Court would find the lay judge system to be constitutional was utterly predictable, one suspects even to counsel for the appellant. The Supreme Court as a bureaucracy having spent several years engaged in an extensive PR campaign promoting the new system prior to its commencement, it was simply impossible that the Supreme Court as a court would decide otherwise. For this reason, perhaps, the judgment appears a bit circular in places – the system was designed to be constitutional, therefore it is constitutional.

Since the court’s conclusion in this case was never in doubt, the real significance of this decision may lie elsewhere; in considering whether Japan’s Supreme Court is as conservative as it is often described. Since the court has often used restrictive rules on standing and resolutions of cases on narrow grounds to block rights-based claims or otherwise avoid politically controversial rulings in the past, to characterize it as politically conservative is probably not incorrect. However the ruling in the lay judge case suggests that the court is not judicially conservative in situations where its own interests may be served by an expansive ruling.

This observation is based on the fact that, in addition to considering and rejecting the appellant’s arguments relating to due process and court composition as described above, the Supreme Court also went so far as to deal with one of her other claims: that service as a lay judge constituted a form of involuntary servitude prohibited by Article 18.

Noting the various features of the system intended to both prevent it from being too burdensome on citizens and providing suitable flexibility to allow them to be excused from service, the court declared that service as a lay judge did not constitute servitude. Yet, it would seem that this argument could just as easily have been rejected on the grounds that the appellant, not herself having been required to act as a lay judge, lacked the standing to make the Article 18 challenge. That the Supreme Court nonetheless took the opportunity to address the merits of the argument and thereby forestall the possibility of future claims by lay judge candidates objecting to service may be an interesting example of an effort in judicial efficiency, but can probably not be characterized as a “conservative” exercise of judicial power.

--Colin P.A. Jones, Doshisha University Law School

Another chapter in Israel's constitutional wars

noreply@blogger.com (Ran Hirschl) — Tue, 15 Nov 2011 16:55:00 +0000

It has been a while since we reported here about Israel’s ongoing constitutional (and culture) wars. The right wing government, and in particular members of the governing coalition who represent religious parties, Jewish settlers and nationalist parts of the Russian immigrant community, have long viewed the Supreme Court as a bastion of liberal secularism and leftism. (In relative terms this may be true, although in absolute terms, to describe the Israeli Supreme Court as a leftist institution is quite a stretch). One of the perennial bones of contention is the Court’s composition, which critics argue is not representative of popular will, the spectrum of political opinions, or of the country’s changing demographics.

To advance their agenda of taming the Court, the right wing parties initiated several new bills, two of which passed initial readings in the Knesset. The first bill, dubbed the “Grunis bill”, removes a rule that a Supreme Court justice cannot be appointed Supreme Court president unless he or she has at least three years of service remaining before the mandatory retirement age of 70. This may seem like a technical correction, but it would pave the way to the presidency of the generally conservative and deferential Justice Asher Grunis, who will be a few weeks short of the three-year rule when the current president, Dorit Beinisch retires in February 2012.

The second bill, dubbed the “Sohlberg bill”, would change the way the Israel Bar Association's two representatives on the Judicial Appointments Committee are selected. Currently there are 3 vacancies on the Court, two due to retirements and one due to an ongoing police investigation of Justice Yoram Danziger's alleged ties to a corruption case which led to his recusal. Among the names mentioned for the vacant seats is that of Noam Sohlberg, a District Court judge who lives in a Jewish settlement in the Occupied Territories and whose appointment to the Court would be the first hard core right wing appointment in recent memory. Supreme Court judges are selected by a 9-member committee, which is comprised of three Supreme Court justices, the Minister of Justice, another minister, two Knesset members, and two representatives of the Israel Bar Association. The two bar association representatives have traditionally been nominated by whomever wins the bar council elections, currently a supporter of Dorit Beinisch and an opponent of Minister of Justice Ya'akov Ne'eman and of Sohlberg's appointment. The “Sohlberg bill” would require a split between the two bar representatives, so that one is the bar chairman and the other is a member of the bar's internal opposition (translation: a supporter of Minister of Justice Ya'akov Ne'eman, and by extension of the Sohlberg appointment).

A third proposal that has been promoted by right-wing critics of the Court's is to hold a public hearing and approval in the Knesset for any new suggested appointees, a proposal that would essentially override the current appointment procedure. To hold his public face as a proponent of judicial independence, prime-minister Netanyahu appears to oppose this proposal.

A few weeks ago, I reported here on the two new Conservative appointments to the Supreme Court of Canada. Richard Albert reported here about the effective Conservative consolidation of core decision-making junctures in Canada. A similar process has been taking place in Israel and perhaps in South Africa. Taken together, these examples may suggest that differences between constitutional politics in parliamentary democracies and in "soft" authoritarian settings are largely differences of style, not of a kind.

RH

Equatorial Guinea heads to polls

noreply@blogger.com (Tom Ginsburg) — Mon, 14 Nov 2011 03:58:00 +0000

Citizens of oil-rich Equatorial Guinea went to the polls today to vote in a referendum on a new constitution. Changes include the imposition of term limits on the president (two seven-year terms in office); the creation of a vice-presidency and Senate; the establishment of economic policy and auditing watchdogs; and an ombudsman. Opponents charge that the new constitution is designed to extend the rule of President Teodoro Obiang Nguema, in power since 1979, and pave the way for succession of his son, who is thought to be the most likely nominee for Vice-President. Obiang, it will be recalled, was recently in the news after UNESCO rejected establishment of a prize to be set up in his name. Which leads to the question of whether constitutional window dressing is any more effective than international window dressing? But the succession gambit is something that could only be done through a constitutional change. This is another example of one of the functions of constitutions in authoritarian regimes: trying to ensure orderly succession.

--TG

UPDATE: The results are now coming in: 99.04 percent for and 0.96 percent against. Why can't dictators at least come up with credible numbers when they are trying to pull the wool over our eyes?

Nathan Brown tells American advisors: "Put Away Your Quills" in the Mideast

noreply@blogger.com (Tom Ginsburg) — Wed, 09 Nov 2011 16:17:00 +0000

Nathan Brown of George Washington has an excellent new post at foreignpolicy.com in which he argues that Americans have little to say to constitution-makers in the Arab world. He is surely right.

My own view is that external advisors are best focused on the nitty-gritty issues of drafting, such as making sure the text is consistent, and not particularly well suited to make the big institutional choices. For one thing, we do not have very good social science knowledge of how institutional choices impact subsequent policies, save perhaps for electoral systems; and we have virtually no social science on the interaction of various institutions. Making predictions about what will happen is fraught with difficulty. Constitution-making is still more of an art than a science, and the artists are those that must live under the constitution.

From Nathan's post:

Later this month, the representatives just elected by Tunisian voters will begin the task of designing a new political order for the country. If all goes well (though it may not) Egyptians and Libyans will follow suit by drafting new constitutions. It is still not inconceivable that other Arab societies will join them in an attempt to reinvent political systems on a more democratic basis. People in these societies are about to engage in an unprecedented process for them -- while they have all lived under constitutions before, those documents generally enabled authoritarian government. Now they want to write constitutions that will allow them to live democratically. As Americans, this seems to be a story we know well -- a people rises up, throws off oppression, and then deliberates carefully how to write a set of rules for a new republican order fit for a free people. Therefore, we will soon hear lots of well-meaning advice on how Arab societies should write their constitutions and what those constitutions should say.

We saw in Iraq how much U.S. understanding of the constitution drafting process was colored by the U.S. experience. Commentators rushed to speak about a "Philadelphia moment," recommended favorite clauses from the Bill of Rights, and even argued over judicial review by reference to Marbury vs. Madison or Roe vs. Wade. We should have learned our lesson: much of our advice will be bad and most will be irrelevant.
First, when outsiders give advice, they tend to ask an abstract question: what would be the best constitution for a given society? Not only do they often know little about that society, they forget that constitution writing is a supremely political process. It is not carried out by philosopher kings but pushed through by real political forces playing a gritty political game. Despite what some of us may dimly remember from junior high school U.S. History, our process was no different.

Constitutional kibitzing rarely finds an enthusiastic audience. After the initial election in the various Arab countries, the constitution will be the first test of the new balance of political forces -- and it will be the first real opportunity for them to discover not simply how to compete, but how to cooperate. Even more important than the text they produce, the patterns of interaction they establish as they draft will produce lasting patterns for politics. They need to keep their eyes on each other -- and that is precisely what they will do....

(Piece continues at foreignpolicy.com here).

The Right to Rebel in Ghana

noreply@blogger.com (Daniel Lansberg-Rodriguez) — Mon, 07 Nov 2011 16:57:00 +0000

This is the third in a series of case studies on the Constitutional Right to Rebel: Ghana

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The nation of Ghana was formed in 1957 as a sovereign union between the recently independent British protectorates of Gold Coast and Togoland. After an embryonic representative government collapsed in 1966, the country passed from coup to coup for the next ten years.

In early 1978, a constitutional assembly was set up to draft a new constitution for the country, one that would hopefully install a tenable and democratic system of governance. After the draft had been submitted and approved but prior to the constitution’s taking effect supporters of Jerry Rawlings, an imprisoned military officer, overthrew the government and executed just about everyone who had been in a position of power during the previous period. Although Rawlings and his cadre achieved complete control of the government following these executions, the Draft Constitution of 1978 was still allowed it go into effect in an amended form. This constitution included the following “Constitutional Defense” article:

“Art. 1(3) All citizens of Ghana shall have the right to resist any person or persons seeking to abolish the constitutional order as established by this Constitution should no other remedy be possible."

Constitutional Defense refers to forward-looking provisions which are the most common rationale behind a constitutional Right to Rebel and can serve as an extralegal insurance policy for the existing regime. These constitutions seek to pre-empt any move to suspend the extant constitutional order by declaring ex ante that whosoever it was that toppled the existing order did so illegally regardless of the circumstances. This would serve to delegitimize any government that followed and defenders of the ancien regime, would have a constitutional justification for taking arms against the new order and possibly forcing a restoration.

Rawlings allowed an elected president to take office and rule (as a puppet) for two years before again overthrowing the government by coup and suspending the constitution in 1981. Following this second seizure of power Rawlings abandoned the mask and ruled as an open dictatorship under the suspended constitution for over ten years. In 1992, Rawlings was still in complete control of the government but he allowed for a liberalization in which a new constitution was written and implemented.

The 1992 constitution expanded upon the "Right to Rebel" set up in its suspended precursor.

"Art. 3(4) All citizens of Ghana shall have the right and duty at all times— (a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and (b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article. (5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence. (6) Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the punishment. (7) The Supreme Court shall, on application by or on behalf of a person who has suffered any punishment or loss to which clause (6) of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment."

In 2000, as Rawlings struggled to keep control of a nation that was rapidly slipping away from him, the constitutional Right to Rebel became relevant in a new way.

As reported by Thomas Friedman for the New York Times, during an interview with the head of the Ghana Bar Association following Rawlings removal from office:

"On the day of the elections there was a polling station in Accra where soldiers started destroying voting boxes," recalled Joseph Ebo Quarshie, president of the Ghana Bar Association. "Immediately, someone called an FM station and it was reported on the air. I was at my bank at the time. A guy walks up to me, a pharmacist I know, and says, `Have you heard what's going on at this polling station in Accra? What is the Bar Association doing about it?' So I got in my car and turned on SKY FM. Minutes later I got a call from JOY FM. I told them to call me back in a few minutes. Meanwhile, I got a copy of the Constitution. JOY FM called me back and I read over the radio the article in the Constitution which says that citizens had the right to resist interference in a polling station. JOY FM kept playing my interview over and over. A couple hours later the soldiers were chased off by voters."

Call for Papers on Comparative Law

noreply@blogger.com (Richard Albert) — Fri, 04 Nov 2011 17:40:00 +0000

As Chair of the Younger Comparativists Committee of the American Society of Comparative Law, I am pleased to share with our readers the Call for Papers below. The Call for Papers is directed to comparative law scholars who have been engaged as law teachers, lecturers, fellows or another academic capacity for ten years or fewer as of June 30, 2012. I invite inquiries by email at richard.albert [at] bc.edu or telephone at 617.552.3930.

CONFERENCE ANNOUNCEMENT: NEW PERSPECTIVES IN COMPARATIVE LAW

The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its inaugural conference to be held on April 20, 2012, at George Washington University Law School in Washington, DC. The purpose of the conference is to highlight and develop the scholarship of new and younger comparativists, hence the title of the conference: New Perspectives in Comparative Law.

Submissions will be accepted on any subject of public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2012.

Members of the Younger Comparativists Committee’s Scholarship Advisory Group will review submissions with the authors’ identities concealed. The Scholarship Advisory Group will select a best paper which will be showcased during a plenary panel with comments from senior scholars in the area. Other papers will be assigned to separate panels according to subject.

The American Society of Comparative Law has generously agreed to provide a limited number of modest stipends toward travel expenses for participants with a demonstrable need of financial assistance.

To submit an entry, scholars should submit completed papers no longer than 30,000 words (including footnotes) no later than February 15, 2012, to Judy Yi at the following address: judy.yi@bc.edu. Papers should reflect original research that will not yet have been published by the time of the conference. The paper should be accompanied by a separate cover sheet indicating the author’s name, title of the paper, institutional affiliation, and contact information. The paper itself must not contain any references that identify the author or the author’s institutional affiliation.

The final conference program will be circulated no later than March 26, 2012.

The Younger Comparativists Committee is delighted to thank George Washington University Law School for serving as our host for the conference, in particular Claudia Haupt for coordinating the event, and Markus Wagner of the University of Miami School of Law for chairing the Program Committee.

Please direct all inquiries to Richard Albert, Chair of the Younger Comparativists Committee, by email at richard.albert [at] bc.edu or telephone at 617.552.3930.

Iran: Constitutional Politics in a Dictatorship

noreply@blogger.com (Tom Ginsburg) — Thu, 03 Nov 2011 13:50:00 +0000

Last month, the University of Chicago hosted a Conference on Constitutions in Authoritarian Regimes. Alas, we did not have a paper on Iran, but it seems that constitutional politics in the world's favorite theocracy are heating up. Indeed, Iran may be exhibit A for the idea that constitutional politics involve significant stakes even in dictatorships.

Last week, the New York Times reported that the Supreme Leader is considering proposing a switch to a parliamentary system. This is a direct outcome of his increasingly serious rivalry with Mahmoud Ahmadinejad, who is a fellow hardliner. Unreported in the Times, however, is that the real object of concern may be Ahmadinejad's powerful chief of staff Esfandiar Rahim Mashaei, who is likely seen by Ahmadinejad as a successor. Mashaei is believed by the Supreme Leader to be a religious schismatic, and some believe he has direct powers of communion with the Twelfth Imam who is central to Iranian Shiite theology. This poses an obvious threat to the Supreme Leader.

The Supreme Leader constitutionally controls the judiciary, media and military, giving him significant leverage to limit presidential power. This was most apparent during the presidency of Mohammad Khatami, who dared to suggest a civilizational dialogue with the West. Khatami, who was optimistically thought of as the system's Gorbachev, failed to liberalize the country much, and the reformist impulse was decisively shut down in the bloody aftermath of the stolen 2009 elections that retained Ahmadinejad in office. But the schism within the hardline camp may pose an even greater challenge for the regime than stealing an election and murdering its own citizens.

--TG

Right to Rebel in Venezuela

noreply@blogger.com (Daniel Lansberg-Rodriguez) — Tue, 01 Nov 2011 23:47:00 +0000

This is the second country study in Tom Ginsburg and I’s ongoing project to identify the potential risks and rewards of a constitutional Right to Rebel – Venezuela has had 26 separate constitutions since independence and the most recent have included various justifications for a popular right to rebel.

Case Study 2: Venezuela

The seeds for democratic governance in Venezuela were planted, or rather shot out of the ground, when oil was discovered early in the 20^th Century. Oil wealth revolutionized the country, changing Venezuela from a sparsely populated agricultural backwater, to an economically powerful and internationally relevant nation. Democratic institutions began to grow around the increasing flow of petrodollars, leading to the dismantling of autocratic institutions and a brisk transition towards democracy. Venezuelan Historian Francisco Rodriguez argues that the sudden influx of wealth created a new elite commercial class to vie for power with the traditional military caste, which had ruled the country since independence. This tension persists, and remains a defining characteristic of Venezuelan politics.

The last caudillo ruler of Venezuela was overthrown in 1945 through a neatly executed coup-de-tat between Acción Democratica (AD), a group of progressive intellectuals which had become a clandestine political party, and a group of junior military officers who felt that the cronyism among President Angarita’s cadre was holding them back professionally.

The transitional government that followed the 1945 coup, spent two years preparing the Constitution of 1947, a document which would be enforced for only one. This constitution acknowledged a broad range of civil rights, and was criticized by TIME magazine as “the hemisphere’s most leftist.” It provided specific guarantees for labor (a right to strike, paid vacations, pay for Sunday work, profit-sharing etc) and set up a governmental structure similar to that of the United States with a Senate, a Supreme Court and a constitutionally limited executive branch. Congressional and presidential positions would also be decided by popular election.

Controversially, the 1947 constitution also contained a provision to give advantage to the incumbent party, which, for the foreseeable future, would clearly be Acción Democratica. The president could (with congressional approval) arrest anyone on mere suspicion of attempting to overthrow the government. This law led to the institutionalized persecution of the two newly founded minority parties (COPEI and URD.) These outfits in short order began to scheme with many of the same military officers who had overthrown Angarita. These officers felt increasingly marginalized by the current civilian administration and, although many had been personally promoted and honored for their participation in the 1945 coup, the military as an institution become less relevant to government than previously.

In 1948, Carlos Delgado Chalbaud and Marcos Perez Jiménez, with the acquiescence of the minority parties, seized control of the government and exiled AD leaders, declaring the party illegal. They abolished the unpopular 1947 Constitution and reinstated the autocratic 1936 constitution that had preceded it. Although the Constitution of 1947 had lasted for only one year before being overthrown, every Venezuelan constitution since then would base itself upon its foundation.

In 1948 Marcos Perez Jiménez, took sole control of the government, following the mysterious assassination of Chalbaud. The Perez Jiménez regime was marked by ten years of unparalleled economic prosperity and brutal political repression. Known as ‘P.J.’, by the grateful American businessmen, and local elites who profited from the highly liberalized (and minimally regulated) economy, Perez Jiménez modernized Venezuela with a brutal disregard for the needs of its people. Throughout this period Perez Jiménez’s rule was constantly being undermined by the (now underground) AD movement which still held much popular support.

To silence international critics, Perez Jiménez called for a new constitution for 1952. A ‘freely elected’ Constitutional Assembly would draw up a new apparatus of state and then legitimately declare him president. Obviously, all the resources of the State would be at the disposal of P.J.’s new political party, and the still popular AD would be barred from participating. Incentives were put in place, and not until registration figures showed that the government outnumbered the combined opposition (including previously registered AD supporters) by 400,000 votes (out of a total two million), did the election actually move forward.

During this time, exiled Acción Democratica leaders had orchestrated a scheme in which AD supporters were secretly told to register with the government and then vote for either COPEI or URD. As a result, with 25% of the vote counted, Perez Jiménez’s party was trailing both COPEI and URD (neither of which had ever polled above 55,000 votes) by over a hundred thousand votes. Following the 25% announcement, government censors stopped publicizing returns, and the election was promptly declared for Perez Jiménez. In the wake of this blatant electoral fraud Caracas was wracked by riots and student protests which were violently put down by the government and punished (the universities were closed for a year.) Perez Jiménez remained president, but did not get his constitution and his international credibility and domestic position were weakened considerably.

Regardless, Perez Jiménez remained vehement about the necessity of legitimizing his personal rule with a new Constitution. So in 1957, after 10 years of operating under the reinstated autocratic Constitution of 1936, he called up an election for a Constitutional Assembly that would draft a constitution in 1958. This time P.J., would not take any chances. All opposition parties were banned, and when other serious candidates emerged they were thrown in jail. The voting system was restructured so that you could only vote ‘for’ or ‘against’ Perez Jiménez and upon voting you would receive a colored receipt saying which way you had voted that you would deliver, in person, to a government official. Needless to say, the government won the election but the post-election criticisms and protests that resulted were what finally overwhelmed the dictator. The army felt that the election had been an embarrassment to Venezuela, businesses threatened to leave, and the Catholic Church began a letter writing campaign against Perez Jiménez. Two months later he was ousted, and his constitution will forever remain unwritten.

Perez Jiménez’s fall, led to the celebrated return of the exiled AD leadership who, in conjunction with COPEI, set down the Constitution of 1961 this constitution was similar in many respects to the failed 1947 Constitution, although it emphasized interparty cooperation, and placed significant institutional checks on the power of the ruling party. As a way of ensuring the new constitution’s survival and shield it from the fate of its precursor, the drafters included the following provision, the first Right to Rebel in a Venezuelan constitution.

“Article 250. This Constitution shall not lose its effect even if its observance is interrupted by force or it is repealed by means other than those provided herein. In such eventuality, every citizen, whether or not vested with authority, has the duty to collaborate in the re-establishment of its effective validity. Those who are found responsible for the acts mentioned in the first part of the preceding paragraph shall be tried in accordance with this Constitution and laws enacted in conformity with it, as shall the principal officials of governments subsequently organized if they have not contributed to the re-establishment of its force and effect.”

The Venezuelan Constitution of 1961 remained in force until 1999 with no suspensions, coups or undemocratic successions; an accomplishment which for Latin America, a region where the average national constitution lasts for only around 10 years, stands out as a huge regional outlier. What eventually destroyed the constitution was economic collapse.

After growing at a steady 6% per annum through the 1960s, the quadrupling of oil prices due to Middle East instability in 1973 caused an unprecedented economic expansion and consumption boom in Venezuela. During this period the government created hundreds of new public works and undertook expensive projects such as the nationalization of the oil (1976), steel (1975) and mining (1975) industries. Public debt grew exponentially and when the price of oil came back down in 1983 the fall in government revenues, alongside higher worldwide inflation and a spike in interest rates caused a severe economic crisis.

For the next 15 years, economic growth remained negative or stagnant as successive administrations attempted to remedy the country’s economic woes to no avail. In 1989, an effort by the Carlos Andres Perez administration to institute IMF free-market reforms doubled the price of gasoline and raised the price of public transportation. Protests began in Caracas’ satellite cities, where citizens relied on public transportation to reach their jobs downtown. The protests quickly turned into riots and spread to the capital. When the so-called “Caracazo” was finally put down around 2500 Venezuelans lay dead alongside millions of dollars in looting and property damage.

Government credibility was severely damaged and the economy grew steadily worse; and an armed military coup against the Carlos Andres Perez administration narrowly failed in 1992. Among the leaders of this coup was Hugo Chavez. Chavez was sentenced to jail for sedition but when Perez was forced to resign for corruption charges, his successor Rafael Calderas pardoned the young lieutenant colonel.

Chavez was released from prison in 1994 and in short order he founded a new political party named Movement Towards a Fifth Republic (V). The 1998 presidential elections saw Chavez run on a populist platform promising a reversal of IMF dictated ‘neoliberal’ policies of the 1990s and better life for Venezuela’s majority-poor. His opponent was Henriquez Salas Romer; a unity candidate backed by the now largely discredited COPEI and AD parties.

Throughout the campaign, the Venezuelan media and conventional elites did much to bring attention to the inherent irony that Chavez would be sworn in under a constitution that he himself had attempted to overthrow less than a decade before. Regardless, Chavez won with 56% of the vote and among Chavez’s first acts was to announce a constitutional referendum to replace the constitution of 1961.

The Constitution of 1999 gave the president stronger centralized powers, abolished the upper house of congress (making the system unicameral), rearranged the Supreme Court, and added two nominally independent new powers: an electoral council and citizens councils. While many of Venezuela’s poor agreed that an overhaul of the governmental system was desirable, the country’s middle and upper classes looked upon the stronger presidency with suspicion. The draft passed through plebiscite with 71% support and the draft constitution became law.

The new constitution retained the gist of the Right to Rebel insurance policy from 1961:

“Article 333: This constitution shall not cease to be in effect if it ceases to be observed due to acts of force or because or repeal in any manner other than as provided for herein. In such eventuality, every citizen, whether or not vested with official authority, has a duty to assist in bringing it back into actual effect.”

But also introduced a new provision, establishing a natural law argument for Chavez’ actions in 1992:

“Article 350: The people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights.”

While the provision formalized Chavez’ philosophical argument for legitimacy; reconciling his own role as failed coup-master with that of his current position as democratically elected president into law, it has proven problematic during the tumultuous years to come.

A coup that briefly overthrew Chavez in April of 2002 at times invoked Article 350 as a justification for their actions. When the plot miscarried and Chavez returned to power the opposition organized a general strike, a record period of civil disobedience which caused irreversible harm to the economy and was again justified through the Constitutional Right to Rebel.

In October of the same year an article in the international periodical the Economist reported the following:

“Dissident generals and admirals, many accused of backing April's coup, declared themselves in ‘legitimate rebellion’ against Mr. Chavez, and set up camp in Plaza Altamira, a square in a leafy Caracas district. Calling for civil disobedience to force the president's resignation, they were joined by dozens of more junior officers and by several thousand civilians. The officers invoked Mr. Chavez's own, 1999 constitution, which enshrines the right to rebel against any regime that “contradicts democratic values, principles and guarantees, or limits human rights…”

The Right to Rebel again seems to serve as a double-edged sword, offering short term legitimacy to leaders with questionable democratic pedigrees but also causing a permanent legal and philosophical justification to those who would seek to overthrow them.

The Conservative Consolidation in Canada

noreply@blogger.com (Richard Albert) — Sun, 30 Oct 2011 20:42:00 +0000

As our colleague Ran Hirschl reported earlier this month, Canadian Prime Minister Stephen Harper recently filled two vacancies on the Supreme Court of Canada. With those two appointments, four is now the total number of Prime Minister Harper's Supreme Court nominations since he ascended to power in 2006.

A few observations occur to me in light of the changing Canadian political terrain.

First, the Supreme Court now counts a majority of five justices who were chosen by conservative prime ministers. This is new ground for modern Canadian Supreme Court. The Court's last conservative-nominated judicial majority exited until August 2002, when then-Prime Minister Jean Chretien, leader of the Liberal Party, made Marie Deschamps his fifth successful nominee for the Supreme Court.

Second, by 2014, Prime Minister Harper will have named a total of six Supreme Court justices, bringing to seven the total number of justices nominated by conservative prime ministers, assuming the balance of the court's membership remains the same. (Under Canada's mandatory judicial retirement law, justices must retire by the age of 75. Two sitting justices will soon reach that limit. Justices Morris Fish and Louis LeBel will turn 75 in 2013 and 2014, respectively.)

More broadly, this new judicial majority elevates the Canadian conservative movement one step closer to completing the Conservative superfecta in Canada. Conservatives currently control a majority in the House of Commons, the Senate, and the Supreme Court. Once the senior bureaucracy is filled with a majority of conservative officeholders and adherents--this may have already occurred, by the way--conservatives will have consolidated all public power in Canada.

This new zero in Canadian politics is not necessarily something that Canadians should either fear or invite. It is rather something that comparativists should note as they study the changing institutional interrelationships in Canada among the Government, the Parliament, the judiciary, and the people themselves.