ComparativeConstitutions.org

South African Art Controversy, and International Law Ruling

noreply@blogger.com (Mark Kende) — Fri, 25 May 2012 21:21:00 +0000

South Africa is currently preoccupied with a controversy regarding a painting of its President that is on display in a gallery. The painting appears to show President Zuma in a Lenin-like pose with his genitals hanging out of his pants. Zuma has sought a court injunction banning display of the painting because it supposedly insults his dignity and privacy. Zuma, however, has several wives, has fathered at least 22 children, and was once accused but aquitted of sexual assault charges. For a detailed analysis of the constitutional issues raised by the injunction request, see http://constitutionallyspeaking.co.za/unpacking-the-legal-arguments-in-the-spear-case/. On another note, the South African North Gauteng High Court recently issued a ruling that received global media attention. The court said that South Africa must investigate and possibly prosecute high ranking Zimbabwean politicians for crimes against humanity, even though the ANC government does not want to. This important human rights ruling can be found at http://www.southernafricalitigationcentre.org/news/item/SALC_ and_Another_v_National_Director_of_Public_Prosecutions_and_Others

Turkey Update: Presidentialism in the Works?

noreply@blogger.com (Tom Ginsburg) — Sun, 20 May 2012 13:45:00 +0000

Turkey is officially beginning the process of drafting a new constitution. The Constitutional Conciliation Commission, formed in the aftermath of the June 2011 elections, is planning to present a final draft by the end of 2012. This week, sub-committees will begin drafting individual articles, starting with general rights and freedoms.

However, an unexpected debate on the merits of presidential system, introduced by the ministers of the governing Justice and Development Party (JDP), is clouding the discussion on the constitution-building process. Last week, deputy prime minister Bekir Bozdağ initiated the debate on the presidential system, arguing that it was more efficient in terms checks and balances and true separation of powers.

Since Bozdağ’s statements, commentators on all sides of the spectrum have engaged in debate on the topic. Some are raising fears that this institutional proposal is designed solely to serve the interest of the Prime Minister Recep Tayip Erdoğan, who would likely be elected as president if such institutional change occurs. Some are debating whether the presidential system would also bring with it federalism and therefore would end Turkey’s unitary central government and provide more autonomy to the Kurdish region. According to some commentators, this would partly resolve the “Kurdish problem”, but Bozdağ has argued that Turkey should maintain its unitary status. Some are considering the benefits of the stability that the presidential system would provide whereas others are questioning whether it would entail more authoritative rule by one man. It is also interesting to see that propoentns are pointing to United States as a successful example of presidentialism and ignoring the performance of presidentialism elsewhere such as in Latin America or Africa.

Turkey has had periodic debates about parliamentarianism vs. presidentialism before. This time, however, the discussion seems to be more serious in light of the active program of constitutional reform. The debate has captured the attention of the public, even though nobody knows for certain what the proponents of presidential system have exactly in mind. What is certain is that the next few days will be crucial for shaping the debate. Turkey’s Constitutional Court is expected to soon give its ruling as to whether the current president is supposed to serve 5 years or 7 years. Turkey had a constitutional referendum on electoral reform in October 2007 when there was a political crisis and the parliament could not elect a president for the new term. Thus the 2007 referendum changed the election and duration of the president’s term. Formerly, the President was elected by the members of the Turkish Parliament to serve for 7 years but in the aftermath of the 2007 referendum, a constitutional amendment which received an overwhelming support (68%) requires future presidents to be elected by the citizens through a public vote for a 5 year term.

The current president Abdullah Gul was elected in August 2007 by the Turkish Parliament before the referendum. However, the referendum was a clear response to the deadlock his presidential bid caused. Thus it is not clear whether he will be serving 5 or 7 years; the question is now before the Constitutional Court. If the Constitutional Court rules that the current president will serve 5 years, we should expect to see the end of further debate about the merits of presidential system because there will be an immediate need for the public to elect a new president in less than couple of months. However, if the Constitutional Court rules that the current president’s term is 7 years the discussion on the presidential system and how it will be incorporated to the new constitution will gain momentum. Thus, Turkey is holding its breath for the Constitutional Court’s ruling, while waiting to see if a system change is on the horizon for the country.

--Oya Yegen

The Changing Composition of the Canadian Supreme Court

noreply@blogger.com (Richard Albert) — Fri, 18 May 2012 16:31:00 +0000

Earlier this morning, the Supreme Court of Canada announced that Justice Marie Deschamps will retire from the bench on August 7, 2012. She was originally appointed on August 8, 2002. Justice Deschamps will therefore have served ten years on the high court.

The coming vacancy will give conservative Prime Minister Stephen Harper the opportunity to make his fifth appointment to the Supreme Court since he became Prime Minister in 2006.

The appointments will not end there. Prime Minister Harper will have the opportunity to make at least two more appointments before the next tentatively scheduled election on October 19, 2015: Justice Morris Fish will reach the mandatory retirement age on November 16, 2013, and Justice Louis Lebel will reach that benchmark on November 30, 2014. (It is also likely that Justice Marshall Rothstein will retire before the next election because he will reach the mandatory retirement age on December 25, 2015, and he is unlikely to want to leave the Court without a full complement of nine in the middle of its 2015 Term. Justice Rothstein was Prime Minister Harper's first appointment to the Supreme Court in March 2006.)

All told, then, before the next election, Prime Minister Harper will likely have made eight appointments to the Supreme Court of Canada. That would be the fifth-highest number of Supreme Court appointments by any Prime Minister, and the second-most by a conservative Prime Minister.

As for possible candidates to fill the vacancy created by Justice Deschamps's retirement, her successor is likely to be chosen from the Quebec Court of Appeal. Among those judges, the likely candidates include Pierre Dalphond, Nicole Duval Hesler, and France Thibault.

Arato on Hungary: Don't Call it a Dictatorship

noreply@blogger.com (Tom Ginsburg) — Thu, 17 May 2012 13:44:00 +0000

[note: cross-posted from booksandideas.net] It may seem like a scholastic question: is the current Hungarian regime a dictatorship (or an autocracy) in light of the changes made by the Constitution of 2012, the so-called Basic Law? Does answering this question make a difference for those seeking to reverse or replace the regime? My answers are no to the first, and yes to the second.

The Rise of FIDESZ

First a little history. FIDESZ, the right-wing, leadership-oriented, in part anti-European, current governing party led by Viktor Orban, has received over two thirds of the parliamentary seats with 52.7% of the vote in the elections of 2010. Since 1990, no party has received as high a percentage in the first electoral round, but the gap between votes and seats was still a function of the mixed electoral system’s disproportionality that, in each election so far (except one), has rewarded a much larger number of seats to the winning party than their portion of the vote. Most obviously the electoral result happened because the previous governing party, the Hungarian Socialist Party (or MSZP, the successor of the earlier monopolistic state party) and its former leader Ferenc Gyurcsany were totally discredited during the previous cycle. The outcome is connected with several, deeper factors, but especially, in my view, with the failure of the new parties which came out of the regime change of 1989-1990 to stabilize: most notably, the Hungarian Democratic Forum (MDF) that won the first free elections, and Alliance of Free Democrats (SZDSZ) which was the inheritor of the great democratic opposition of the 1980s— FIDESZ (Alliance of Young Democrats) being here the exception.

On the center left, I attribute the failure to consolidate a new party to the attachment of the liberal SZDSZ to a largely European conception of liberalism: it remained, for too long, too closely identified with a primarily economic form, de-emphasizing if not entirely excluding social liberal and civil society-oriented options. In its overall ideological posture the emphasis on human rights, though important, had little effect on the economic policy options supported. The earlier stress on worker’s self management, the multiplicity of viable forms of property and civil society inputs fell by the way-side. A coalition with the post communist MSZP between 1994 and 1998 (which I then supported) was probably, in retrospect, a poor decision, especially because the liberals turned out to be unable to renounce this alliance even when that would have been the right course strategically and on the level of principles. The party’s political posture became self-destructive, especially after 2002, when the SZDSZ took an even more determined economic liberal turn. Its brand of liberalism, while valuable to hasten the transition from state socialism, never stood chance in a period of severe economic strains and impoverishment of the poorer sectors of the population, both in the industrial and agricultural sectors, especially in rural areas. It was FIDESZ (along with originally liberal parties in Poland and the Czech Republic) that recognized the unviability of originally rather Thatcherite forms of liberalism and abandoned its own ultra liberal posture by the mid-1990s.

So-called nostalgia parties, inspired by pre-Communist era politics, developed on the right, most notably the Independent Small Holders (FKGP) and the group of the Hungarian Democratic Forum (MDF) identified with Istvan Csurka, which sought to define themselves in terms of ideologies inherited from the interwar period—ideologies by then obsolete and even comical. FIDESZ in time recognized that while some of the grievances these groups put forward found a response in Hungarian society, only a new, dynamic, and forward-looking party led by young or fairly “new” people could successfully channel them. FIDESZ did this with great success in the parliamentary elections of 1998 when it first formed a government. Since most Hungarians do not and never have voted mainly on the basis of ideology, FIDESZ could not rely on the most extreme irredentist, xenophobic, anti-European and anti-Semitic slogans of this nostalgic, right-wing authoritarian and exclusionary milieu. That is why its success in reconstructing the right had an unintended side effect: the formation and strengthening of Jobbik, a party of even younger people who have no problem adopting the most reprehensible slogans and ideologies. Together with Jobbik, the right in 2010 received 69% of the votes and 80% of the seats. This is what Orban refers to as “the revolution of the voting booth.”

Parts of the Hungarian right always considered the round table negotiated transformation of 1989 a form of conversion of Communist power. As in Poland, Bulgaria, the German Democratic Republic, even Czechoslovakia, and later South Africa, the round table in Hungary was the body that negotiated the peaceful regime change, within continuous legality. In 1989, through a process of comprehensive amendment, this body produced the first new, supposedly interim constitution of the country. While, at the time, members of the right attempted but failed to realize secret deals with the outgoing Communist power (one of which concerned the presidency of the country), they very soon denounced the round table process as a way to preserve older powers. It was a deal between reds and pinks, they claimed, suppressing their own actual role in the process, and denying the obvious, namely that there was indeed a full change of regime in 1989. Thus, many of the spokesmen of the right called for a revolution, or a “second revolution—” at least after this became safe in 1990.

In Hungary, party alternation is however neither new, nor revolutionary: it has happened in the elections of 1990, 1994, 1998, 2002 as well; 2006 was the exception. Moreover, in 2010 the voters were not told that a replacement or dramatic alteration of the regime of 1989-1990 was at stake in the election. If there was a revolution, it was engineered by the two-thirds of the Parliament, manufactured in part by the electoral rule, rather than by the voters themselves. Under Hungary’s old amendment rule, a qualified majority was legally able to alter all features of the political system. No feature of the Constitution was formally unamendable, as is the case for the famous French republican clause (Fifth republic: last sentence of Art.89), or the several elements of the German Grundgesetz that are themselves not open to amendment (Art 79-3). Such limits when they formally exist are always capable of expansion by courts, as this has been confirmed by German and Turkish Constitutional Court decisions. Even when there is no formal limit on the amending power, a tribunal like the Indian Supreme Court with its basic structure doctrine can declare and enforce an informal limit. Unfortunately, the Hungarian Constitutional Court has repeatedly denied that it could review amendments for anything other than purely procedural reasons (i.e. that the sufficient majority was not attained) and this possibility was affirmed too recently to interfere with FIDESZ’ project.

Under the amendment rule, then, as in 1989, the whole constitution could in principle be replaced thanks to a single amendment or a document called a new “constitution” or basic law. While a complete replacement was by no means accomplished by the Basic Law of 2012 and the accompanying legislation, enough features of the 1989-1990 regime were altered or replaced to raise the question whether a second regime change has occurred in Hungary—legally but with revolutionary results.

Incumbent-protecting Measures

This is where the question of dictatorship becomes relevant, first because of the nature of the process of change. [1] Unlike the changes that took place in 1989 and 1990, and the failed attempt to draft a new constitution in 1994-1996, the effort of 2010 was entirely unilateral: the new constitution was imposed by the governing party without input from any opposition or minority. If we define (as we should) modern dictatorship by the rule of arbitrary will that is unable, like kingship, to rely on sacred, dynastic or any other form of inherited authority, implying also the absence of any separation of powers, the 2010 process was dictatorial, even if it stopped short of the sovereign dictatorship of Carl Schmitt (see Die Diktatur [2]) and a clear legal break. Not only was it unilateral and arbitrary, but all other institutions like the Constitutional Court were excluded, and even confirmation in a referendum was studiously avoided. While not de facto illegal under the existing amendment rule and Court precedents, a different and stronger Constitutional Court could and should have declared the method of change illegal. [3] Short of that, we are left with the unusual British solution: the concept of legal but unconstitutional, or legal but illegitimate change.

But is the result a dictatorship? Did it step over the threshold, wherever that is, from the previous system into an entirely new one? The main changes so far are, first: the packing of the constitutional court in a process controlled by FIDESZ, with the addition of five new justices to the original ten. The jurisdiction of this Court was significantly reduced, by excluding financial, tax and pension matters from review (unless human dignity is involved!) The extraordinarily wide rules of standing the Court had in the past were slightly reduced, or rather altered—in practice, the exact nature of the change is still unclear. Through manipulation of retirement rules in the new constitution itself, a large number of ordinary judges are being replaced. This process will be controlled by a new board under a political appointee. Second: there has been an attempt to cement the incumbent power by giving several important policy areas a new status, including taxation, financial management, pensions. It will require two thirds of the parliamentary votes to regulate these issues and make appointments not only in these areas but for all the boards and bodies in charge of media regulation. FIDESZ has a two-thirds majority now, but new governments after 2014 are less likely to do so. A series of appointments to bodies supervising the judiciary and economy should go into effect for periods well beyond the current parliamentary period (mostly 9 year terms). By naming these “bionic” officials now, Pinochet-style, under the new constitution, FIDESZ will be able to preserve some important powers beyond its current tenure. Third: the electronic media have been recentralized under a new board, and possibilities of sanctioning organs and journalists in the print media for “unfair” practices and reporting have been put on the books. Fourth: a new electoral rule has been enacted, more disproportional even than its predecessor, which on the basis of computerized surveys would give FIDESZ an even greater majority under the voting pattern of 2010, and could give this party a majority even with a vote far less than before.

All in all this is a series of strong incumbent-protecting measures. There is some plausibility in understanding dictatorship as a modern system in which incumbents cannot lose power, at least without a new change of regime. Is that the case under the new system? Note first that in terms of my previous definition, focusing on constitutionalism and separation of powers, even if the process of establishing it was dictatorial, the system FIDESZ established is not a dictatorship. There is still a Constitutional Court with important powers, that were used in several cases even after its packing. There are still elections, whose outcome will still depend on popular support. Striking democratic alliances before the one and only round of the next election would be a possible way to frustrate the intentions of the new electoral rule. For these reasons, the idea, propagated by some of the most fearful commentators, that FIDESZ cannot be replaced because of this rule is absurd. The independence of the Central Bank is likely to be preserved under European pressure. The likelihood that the media laws will or can be used to completely suppress free press and internet communications is small, especially because of, again, likely European pressure and possible recourse to the European courts. Civil society groups and parties can still demonstrate and mobilize, and show it almost every week. With all these channels open, the incumbent-protecting rules of the new arrangements cannot guarantee that FIDESZ will remain the governing party. It is true that two-thirds rules protect many of FIDESZ bionic appointments, but these do not last forever, and two thirds is not 100%. Indeed, with the self same amendment rule in place, a new re-alignment can result in a change or replacement of the Basic Law even if a new government does not have the necessary two thirds of the seats in Parliament.

Why Hungary Should Not Be Called a Dictatorship

The new FIDESZ regime, then, is a hard democracy, a demokradura in the words of Guillermo O’Donnell and Phillippe Schmitter [4], not a dictabalanda, a soft dictatorship. It is still based on parliamentary sovereignty like its predecessor (and unlike the regime before 1989, which was based on the sovereignty of the Political Bureau of the Hungarian Communist Party). More accurately, it has shifted the balance between parliamentary sovereignty (the power of the two thirds) and constitutionalism to the benefit of the former. Thus, rather than a constitutional revolution, it is more accurate to call the changes FIDESZ made a sweeping reform, legal even if politically illegitimate, that hardened the existing democracy by weakening checks and balances and constitutionalism.

Calling Hungary a dictatorship serves the purpose of at the very least inviting outsiders to help reverse the changes. Neither the EU nor the Council of Europe have a republican guarantee clause like the U.S. constitution’s Article IV.4, which allows the federal government to intervene in states that have abolished this form (however Congress chose to define it). Other federal states like India have such provision, and have used it perhaps all too frequently. Yet, as the difficulties of Turkey’s entry into the EU indicate, it is important that all of its members have at least minimum political homogeneity in terms of constitutionalism, fundamental rights protection and free elections. One would think that it would be at the very least politically if not legally impermissible to allow a dictatorship to remain a member of the federation. There is little question that details of important European and international agreements and conventions are at stake as well. The legal and political pressure to enforcing these would however only require FIDESZ, as it has already, to make very partial changes. It would be different if Hungary were a dictatorship, which, fortunately or unfortunately, is a very tough case to make today. If it is tough to convince me, it will be even tougher to convince the right-wing European sister parties of FIDESZ who have at the moment the majority in the European Parliament, and have admittedly shielded the Orban government in undesirable ways.

Moreover, those who try to make the case for dictatorship or autocracy within Hungary itself can easily be accused of trying to destroy the country’s reputation and bring in foreign allies to “colonize” a sovereign country. In this context, it is best to apply the pressure of European institutions only where there are clear legal grounds to do so, both in terms of the substantive issue involved and the existence of a relevant jurisdiction. To its credit, the European Commission has insisted on Hungary having a system of financial and monetary regulation compatible with the Union, and media laws that do not interfere with the freedom of communications not only of Hungarian institutions and persons, but also of transnational organizations. It has already taken some important steps in areas clearly in its jurisdiction and forced the FIDESZ government to make changes, hopefully not merely cosmetic. Another step has been the defense of the judicial system and the tenure of judges, as related to the legal security that European institutions and economic actors have a right to require. The role of the European Parliament has been even more spectacular: it has explored in great detail the violations, actual or potential, of fundamental democratic and liberal principles in Hungary. Of course, the protests of the EP do not have any immediate effect. The role of the courts, both the European Court of Justice and the European European Court of Human Rights is likely to be much more effective, when individuals and organizations begin legal suits against the Hungarian government on the basis of their violation of European treaties and court precedents.

There is another political reason, besides the risk of being called enemies of the Hungarian “sovereignty,” not to call the Orban regime a dictatorship. Except for the unlikely case that under FIDESZ’ new electoral rule, left-of-center parties will gain a two-thirds majority, there is little chance that the new constitutional arrangements will be reversed by these parties alone. A color revolution is not likely either, nor is it unambiguously desirable. It could lead to the new winners imitating FIDESZ’ imposed process of change, creating yet another poorly legitimated constitution. To do it better, consensually and legitimately, legal continuity is preferable. In that case, a most likely right-wing ally will be needed to enact a new, consensual constitutionalist constitution (one that cannot be suspended) beyond parliamentary sovereignty. Such ally or allies will have to come from among the members and supporters of FIDESZ. Denouncing their system in terms they cannot condone can only lead to continued polarization and questionable legitimacy. And part of the right is indeed detachable from Orban and FIDESZ: right-wing press and individuals were part of the movement that led to the resignation of the state president Pal Schmitt at the beginning of April 2012 after it was discovered that he had plagiarized most of his doctoral dissertation.

Yet other conditions are needed to make the required changes after the next elections in 2014. Center-left forces are always tempted to treat the FIDESZ regime as either a conspiracy, or a populist deformation of democracy. What they are not so willing to recognize is their own role in the current outcome. There is indeed a new and very disturbing populism in Hungary, represented by Jobbik and a part of FIDESZ’ support. But why did this happen? And why do many voters, not open to xenophobic, anti-European, and traditional right-wing ideologies, also vote for FIDESZ? The fact that the place of the Left is occupied by the former state party cannot be left out of consideration, nor the demobilizing effects of the market oriented-version of liberalism offered by the SZDSZ when they were still relevant. Neither of these forces has done much to alleviate the growing poverty and inequality in the country. I note also that it was the MSZP leadership that shipwrecked the constitution-making effort of 1994-1996; the liberals allowed this to happen without leaving the coalition of that time. Thus the important legitimacy deficit of the 1989-1990 system was not reduced, and the destructive combination of a disproportional electoral rule and a purely parliamentary rule of constitutional change was left in place. These provided the open door through which FIDESZ marched in 2010. There are indeed many grounds for self-criticism on the part of most of the forces currently arrayed against FIDESZ in Hungary.

More than self-criticism is required, however. The Left and liberalism must be entirely renewed if elections are to be won. For the former, this would require the daunting task of making sense of social democratic protections in an era of economic globalization. For the latter, the task will be to generate a form of social liberalism that focuses not only on macro-performance, and the conditions of the least well off, but also on the conditions of declining middle strata. The orientation to civil society, so important in the beginning of the transition process, should be renewed. For all these projects, the new ecological party LMP should be an important ally. The Left and liberals must also address the terrible problems of impoverishment in the country, made only worse by FIDESZ’s actions. They must be ready to ally not only with each other for electoral purposes, but also to make genuine agreements with at least some forces on the right. This is what European partners and sympathizers should push for, even more than direct intervention, when necessary.

Finally, a new slogan is required. Attacks on “dictatorship” are implausible in the present circumstances. The call to create a new, consensual constitution that includes the whole country and embodies its genuinely common aspirations is a much better candidate.

--Andrew Arato

Happy 65th Birthday, Japanese postwar constitution ...

noreply@blogger.com (David Law) — Thu, 03 May 2012 22:06:00 +0000

... and here's to the next 65. There are a number of interesting facts and longstanding myths surrounding the Nihonkoku Kenpo, which went into effect 65 years ago today: few constitutions have gone longer without being amended (true!), even though it was "imposed" by "the United States" (not true ...)

The Asahi Shimbun has a birthday tribute today, available in English, with tidbits from a couple of contributors to this blog. The journalist in question, Junji Tachino, does a nice job of anticipating, and addressing, common public concerns about the Kenpo in a very succinct and readable way. Here's the political backdrop in a nutshell. Conservatives in Japan have long wanted to amend the constitution, their particular pet peeve being Article 9, which constitutionally commits Japan to pacifism. Whereas the Asahi Shimbun, along with the rest of the center-left and (usually) a majority of the public, supports the Constitution. The all-too-common (and wrong) narrative about the Japanese Constitution having been "imposed" upon the Japanese may seem innocuous, or even a source of pride, to American scholars (a collective pat on the back for writing such a long-lived document), but in Japan, it's a talking point for the right to justify the dilution of Article 9.

Back to what's true and what's not true, and maybe even a little discussion of why or why not:

(1) Has it lasted a long time without amendment? Yes; indeed, as Tom points out in the Asahi Shimbun piece, it's almost without peer. Is that necessarily a bad thing? No. In a constitution, old *can* mean out of fashion, but it doesn't have to. Although the Kenpo turns 65 today, that doesn't necessarily mean its content is out of date (measured against what's globally popular these days). The Nihonkoku Kenpo was written in a blink-and-you'll-miss-it historico-ideological sweet spot between Allied victory in WWII and the onset of the Cold War - a window during which New Deal progressivism could express itself constitutionally, in the form of a constitution filled with rights that have only become more popular in recent decades, before the weight of domestic and international security concerns settled in and thoroughly ruined the party. But the legacy of this last gasp of New Deal progressivism on the global stage was a document that was, quite arguably, ahead of its time in terms of the range of rights that it guaranteed. Even the pacifist commitment may not be very popular globally but has at least gotten more popular, not less so (contrast, e.g., the right to bear arms).

(2) Was it "imposed" by the "United States"? Not so much. MacArthur definitely did *not* have permission from Washington to write a constitution for Japan, but instead saw and seized an opportunity after the Cabinet proposed a deeply conservative document that the Japanese public rejected, and he ended up proposing something with much stronger popular support than Japan's own government could muster. Its longevity should therefore come as little surprise: what democratic constitution can endure for over six decades unless it enjoys enduring popular support? Therein ought to lie a valuable historical lesson for those who argue that constitution-making in post-occupation settings (Iraq, Afghanistan?) is about cutting deals among elites, popular opinion be damned. The lesson is: actually, the people do matter. If that's too much to ask, then one at least hopes that scholars won't draw from Japan the wrong lessons about the viability of "imposed constitutionalism".

Last but not least: a tip of the hat to everyone's favorite co-author, Mila Versteeg, for coming up with just the kinds of statistics that the Japanese people need to know that, even though their constitution may be approaching human retirement age, it is still up to date and worthy of their support.

Tunisia's Draft Preamble

noreply@blogger.com (Tom Ginsburg) — Mon, 30 Apr 2012 00:48:00 +0000

Zaid Al-Ali of International IDEA has provided a translation of the Draft Preamble of the new Tunisian Constitution. What is noteworthy to me is the predictability of the text. There are very few surprises, perhaps the biggest surprise is the continuity with older tropes in Arab politics.

The Preamble references the fight against oppression back to colonialism, and calls for a true republican system (the last constitution was also nominally republican). Islam receives a good bit of attention. Gone are the references to cooperation with "the African peoples", but references to Arab unity remain, and Maghreb unity as a step thereto. These sources of identity are the traditional ones. Added are references to free elections and political competition, which is welcome but hardly surprising. The Palestinian struggle is singled out for attention--to my knowledge this is a first in a national constitution other than that of the Palestinian authority. The precise formula for referring to international agreements is still to be decided. Another new point is the reference to the environment. All in all, the document reflects a balance between traditional pan-Arab thought and striving for a fairer system for Tunisia, which provides a clue to the mindset of the drafting committee at the moment.

The Draft follows. thanks again to Zaid for providing it.

--TG
---
In the name of God, the most Gracious, the most Merciful

We, the representatives of the Tunisian people, members of the Constituent Assembly, elected based on the realization of the revolution for dignity, freedom and justice;

Taking pride in the Tunisian people’s struggle through history for liberation: fighting colonialism, and resisting oppression until its free will was victorious; and in loyalty to the martyrs and to the victims over consecutive generations of struggle; and definitively breaking away from inequality, corruption and injustice;

Based on the principles of Islam and on Islam’s purpose which is based on moderation and openness, and on fundamental humanitarian principles; and inspired by the Tunisian people’s civilization over the ages, and its history of reform which is inspired by its Arab and Islamic identity and by its civilizational and human accomplishments; and committed to the Tunisian people’s national accomplishments, and in response to the objectives of the revolution for dignity which crowned the epic of its long struggle;

For the purpose of establishing a true republican system; in which the people are the source of all authority, in which organisational diversity, administrative neutrality, free elections leading to a peaceful transfer of power are the basis of political competition; and in which government is based on democracy, human rights, the independence of state authorities, the rule of law, and justice and equality in the enjoyment of rights and in the satisfaction of obligations on the part of individuals and groups;

Based on our faith in the human being in his absolute humanity as a dignified being, providing him with natural capabilities and the accomplishments of civilization so that he builds on it; strengthening our cultural and civilizational belonging to the Arab and Islamic nation; confirming our national unity based on citizenship, brotherhood and social solidarity, and striving for a Maghreb union, which is a step towards Arab unity; committed to supporting the oppressed, to the rights of peoples to determine their own destiny, and to the just liberation movements (in particular the Palestinian liberation movement)
[it is suggested: (i) that this paragraph should end here; (ii) that the following wording should be added at the end of the paragraph: in conformity with international agreements and conventions; (iii) that the following wording should be added to the end of the paragraph: in conformity with international agreements and conventions in so far as they conform with the Tunisian people’s religious and cultural values; (iv) that the following should be added: in conformity with international agreements and
conventions in so far as they conform with the constitution];

In response to the ambitions of the Tunisian people to be, in all its components, the author of the homeland’s history, the Tunisian people being the carrier of the banner of the pioneering spirit and initiative of enlightened action as it was throughout history; and in support of its ambition to contribute to civilization; and in the context of cooperation with the people of the world based on the principles of peace, mutual respect, joint interests and human solidarity; dealing with nature with the care that guarantees life’s sustainability to future generations in a sound environment that allows to make a
better future for humanity;

We therefore, based on God’s blessing, in the name of the people establish this Constitution.

Brown on Egypt: Anton Chekhov at the OK Corral

noreply@blogger.com (Tom Ginsburg) — Tue, 17 Apr 2012 03:34:00 +0000

[Note: the following appeared today at ForeignPolicy.com under the title "Egypt's transition imbroglio". Thanks to FP and to Nathan Brown for letting us re-post]

The phrase "Egyptian transition process" has become tragicomically oxymoronic in light of the dizzying series of developments over the past month. More metaphorically, events have driven entire herds of elephants stampeding through every legal and constitutional loophole in Egypt's makeshift interim political system.

There are, to be sure, some rules. In the seven weeks following former President Hosni Mubarak's forced departure last year, a series of policy statements by the Supreme Council of the Armed Forces (SCAF), a set of constitutional amendments developed by an ad hoc committee appointed by the SCAF and approved in a referendum, and a "constitutional declaration" drafted secretly and proclaimed by the SCAF collectively laid out a set of procedures for rebuilding the Egyptian political order. Those procedures have largely been followed. But they have led Egypt into a state of complete confusion.

The combination of eccentric elements (such as the disqualification of anyone whose parents ever held foreign citizenship from the presidency) and unexpected gaps and omissions (such as the failure to specify any sequence of presidential elections and constitution writing or the silence on the ways in which the parliament was authorized to exercise oversight of the cabinet) scattered a series of landmines throughout the path. Making things worse was the way in which critical administering, governing, and adjudicating bodies were (or have come to be seen) as deeply interested or partisan actors -- the parliament as the arm of Islamists, the SCAF as wedded to a set of political and material interests, the State Council as willing to seize any opportunity to pursue its ambitious understanding of its judicial role, and even the presidential election commission as a body headed by the constitutional court's chief justice, a figure seen as close to the military and security establishment. And the postponement of critical questions -- security sector reform, for instance -- has aggravated matters still further.

Yes, there are rules. But if the word "process" has any meaning left, it cannot be applied to Egyptian politics today.

Perhaps "landmines" is the wrong explosive metaphor. Instead, since all of these problems were laid down a year ago, one might better turn to Anton Chekhov's advice to dramatists: "If in the first act you have hung a pistol on the wall, then in the following one it should be fired." The second act of Egypt's revolution consists not of a single gunshot, however. In the past few weeks, Egyptians have broken into the armory so heavily stocked a year ago and shot off all pistols at once.

So who hung all the pistols on Egypt's walls? Here is where the Chekovian metaphor breaks down because there is no playwright in sight. Nobody put the rich set of weapons there with any clear plot in mind, reigning speculation notwithstanding. But three parties seem to have done most of the work.

First, the eight-member committee that hurriedly drafted the constitutional amendments at the core of the "process" was very restricted in its focus and therefore developed proposals that left key questions unanswered. But while handpicked by the SCAF, it does not seem to have been doing the SCAF's bidding in any mechanical sense. In personal interviews I conducted, two members were very explicit (and consistent with each other) on the minimal guidance they received from Egypt's interim military rulers. There were certain articles they were asked to amend but not in any clear way; there were also a few other amendments that they offered at their own initiative.

Second, the revolutionary leaders were so elated last February by Mubarak's departure that they did not contest SCAF control for a considerable period. By all appearances, they really believed that the army and people were "one hand" until it was too late to dislodge the army from playing an overbearing role. When the revolutionaries finally developed a serious (and likely wise) proposal for an interim presidency council to rule the country instead of the SCAF, they pursued it in no coherent manner. And they coupled it with an attempt to delay elections on the explicit (and excessively honest) argument that the Islamists would likely do well as soon as Egyptians went to the polls. By seeking to delay voting on such blatantly partisan grounds, they contributed to a polarized situation (a contribution soon matched by the Islamists) which has made a more consensual approach virtually impossible.

Finally, the lion's share of responsibility lies with the SCAF's generals who pursued an approach that was politically and legally incoherent. It was not one that has always served their interests very well, but they have been powerless to change it (as was clearly demonstrated by the failure of an apparent -- and audacious -- attempt to parachute in some "supraconstitutional principles" serving the SCAF's vision last fall).

Hope for a transition to a more pluralist and democratic Egypt has certainly not died. Egypt's saving graces -- the fact that the gunfire is mostly metamorphic; the continued strength of its political institutions, however deeply corrupted and implicated many are; and the inability of any single political actor to dominate the country -- may still carry it through.

But the lack of any controlling process or authority may make Egypt's political actors feel a bit like they are not only living in a Chekhov drama or deafened by the volley at the OK Corral but also as if they are trapped in Luigi Pirandello's "Six Characters in Search of an Author."

--Nathan Brown

Egypt suspends constitutional assembly

noreply@blogger.com (Tom Ginsburg) — Wed, 11 Apr 2012 12:28:00 +0000

Egypt's muddled constitution-making process continues to befuddle. Yesterday the Supreme Administrative Court suspended the constituent assembly as unrepresentative and in violation of Article 60 of the constitutional declaration passed in 2011. The decision, which carried no explanation, is a bit puzzling as Article 60 does not provide any criteria for membership of the 100-member assembly. Rather, it is simply procedural, describing the appointment process in general terms and the timeline for drafting and adoption.

The court case resulted from parliament's decision to select the assembly itself, and to populate half the seats with its own membership. An Advisory Council of Supreme Council of the Armed Forces criticized parliament's decision in this regard. Secular and liberal groups had already boycotted the assembly, as had Al-Azhar mosque. So now it is back to the drawing board.

Next steps, anyone?

Arab Spring Constitutionalism

noreply@blogger.com (Daniel Lansberg-Rodriguez) — Wed, 04 Apr 2012 16:48:00 +0000

A piece I wrote on Constitutional reform in the Arab World was recently published by the Chicago Council on Global Affairs as expert commentary. Special thanks to Tom Ginsburg who helped me a great deal with his knowledge of the region.

I would very much welcome any comments or responses from ComparativeConstitutions readers.

---

Caveat Legislatoris

The Arab Spring revolutions have ushered in an historic wave of constitutional reform across the Middle East and North Africa. Daniel Lansberg-Rodriguez of The Chicago Council offers some guidance to reforming countries.

By Daniel Lansberg-Rodriguez

Among the many pressing matters discussed at last year’s G8 Summit in Deauville, France, much urgency was given to the numerous Arab Spring revolutions then sweeping through North Africa and the greater Middle East. One year later, with the Qaddafi, Mubarak, and Ben Ali regimes gone and a modicum of stability returned to much of the region, many of these former autocracies have shifted their attention away from the process of liberation and toward the far more daunting task of sustainable rebuilding.

The resultant wave of constitutional reform is unprecedented in Middle Eastern history, encompassing not only those countries in which the previous governments were overthrown entirely, but also those where embattled regimes, e.g. Jordan and Yemen, conceded constitutional changes in order to ensure their survival. At present, nearly all of these reforming countries have set strict timelines for the process—in most cases allowing six months for constitutional committees to finish drafting, after which they will submit the new constitutions to popular vote.

While hot-button topics such as the role of Islam and the rights of women have received a good deal of domestic and international press, success in establishing a functional and tenable government will, for the most part, hinge upon the more mundane issues surrounding institutional structures and relationships.

Historically, constitutions have served three major purposes:

To establish governmental institutions, standardize relationships among those institutions, and set up intra-governmental checks;
To establish citizen rights; and
To enshrine common values, setting a raison d'état for the country.

In most cases, it is the first of these purposes that has the greatest effect on the establishment of future governmental stability. Without a workable system of checks and balances, strong governmental institutions, and executive limitations, personal rights cannot be guaranteed and common values become irrelevant as society becomes increasingly factionalized.

Many early constitutions, such as that of the United States, rightly tended to focus heavily on this issue of governmental design: establishing personal rights only in the broadest of strokes and devoting sparse constitutional space to the setting of common values. However, as advances in democratic governance now usually require nascent constitutions to pass through plebiscite, modern constitutional drafters have tended to focus more heavily on the latter two subjects. Indeed, personal rights and shared values—regardless of enforceability—are the most likely to be of interest to the general population.

Middle Eastern constitutions have historically placed a premium upon enshrining common values. Qaddafi’s Libya, and the current Saudi Monarchy enshrined the Qur’an to be their national constitutions, relegating the establishment and definition of governmental institutions and personal rights to more malleable lower authorities. For their part, Egypt and Tunisia’s original constitutional designers back in the 1880s took a great deal of care in designing a workable system of governance even if this structure has not been reflected in their recent autocratic histories.

Egypt’s constitution was perpetually suspended after 1967, and Tunisia’s was routinely ignored on the grounds of executive privilege. In both cases the fall of the constitutional order was not due to a failure in design but to (a lack of) government discipline and popular will. Much of the system established in these documents, however, would likely still be workable if reinstituted today. Where possible, it would be best to make specific constitutional changes through amendment, rather than entirely reworking the system from the ground up.

As I have previously argued in the New Republic, the mere act of redesigning a constitution can serve to limit institutional authority in practice. Institutions need time to develop, and, since executives tend to emerge unscathed from the redesigning process, they are far more likely to become stronger in practice (regardless of what the design itself may say). An example from American history proves illuminating here. In 1831, President Andrew Jackson ignored a ruling of the U.S. Supreme Court and expelled the Cherokee from their land saying: “(Chief Justice) Marshall has made his decision, now let him enforce it!” If, after 50 years of institutional history, the U.S. Supreme Court could not check the authority of a popular president, what hope is there for far younger institutions in a region with a far weaker popular democratic tradition?

Limiting the scope of reform in these countries will require a great deal of restraint and maturity on the part of local governing coalitions. Once given a seat at the table, it is natural for revolutionaries to want to institute fundamental changes and create a wholly fresh start for their country—for which a new constitution is often seen as the most powerful symbol. In Latin America, for example, where nearly every presidential change is characterized as a “revolution,” this has led countries such as Venezuela, Dominican Republic, Ecuador, and Bolivia to draft and institute dozens of constitutions, leaving them with overly empowered executive authorities and laundry lists of unenforceable rights on paper.

In the immediate aftermath of a revolution, it is almost impossible to have a clear picture as to what the future country should look like in the long term and of what structures will need to be set in place to get there. The Articles of Confederation, the precursor to the United States Constitution, lasted for less than a decade, as it had set up a system in which federal authority was far too weak to be able to govern effectively at a national level. Following independence from Britain, America’s Founding Fathers were understandably focused on the issues of independence and state sovereignty, although they could not yet see clearly what federal structures and power relationships would be required to govern coherently. This fate is actually quite common for post-revolutionary constitutions: France had four complete rewrites in ten years following its own revolution, and almost all constitutions written in Eastern Europe and Central Asia after the fall of the Soviet Union have since been rewritten at least once.

Creating a tenable constitutional re-write is not a process that can be rushed. In the Arab Spring countries, where power bases are currently in flux and former rebels must contend with both entrenched Islamic clergy and surviving military and judicial institutions from their respective ancien régimes, this difficulty is compounded still further.

In countries without a constitutional history, e.g. Libya, there will be no alternative to completely redrafting. Where possible, however, an attempt should be made to salvage existing institutions that may remain workable and reinforce their authority through constitutional acknowledgement. For those countries with extant workable constitutions, doing so has even greater importance; in these cases, the stakes are much higher.

While it may be too late to reverse the process of new constitutional drafting in countries such as Egypt and Tunisia, the resultant changes—at least where structure is involved—should be made in a limited fashion and through amendment where possible, rather than through complete rewrites. Furthermore, such a process should be given a much longer timeframe to allow that it is undertaken with the utmost care and implemented only once relevant power bases and national needs can be better understood.

The Iraqi experience has shown the West that attempting to superimpose its own values unto a Middle Eastern constitution is likely to fail. What the West can do: highlight both the importance of establishing a set of coherent rules to govern society alongside defined institutional roles and, where possible, the importance of sticking to them.

Egypt on the agenda

noreply@blogger.com (Tom Ginsburg) — Sun, 01 Apr 2012 17:29:00 +0000

There has been a lot of attention to Egypt this past month, as the constitution-making process continues to move along; our occasional contributor Tamir Moustafa has an excellent and thorough analysis for the Brookings Center available here.

Yesterday's report that the Muslim Brotherhood has decided to run a presidential candidate marks an important turning point for the likely outcome in Egypt. One way to think about the situation is as a bargaining problem among the three major groups in the negotiating process: the liberals (L), who have international support but a weak social base; the Islamists (I), who are internally diverse but are characterized by very strong social roots; and the military (M), which seeks above all to maintain its material position. Thinking about the relative positions of the groups in the constitutional bargain as a set of preference orderings, the liberals would rank them as [L, I, M]; the Islamists as [I, M, L]; and the Military, arguably, as [M, I, L]. Each group naturally prefers that it end up on top, but the orderings of the second and third preferences may end up determining the likely coalitions. The military-islamist alliance seems to be the likeliest outcome: each of those players would end up with its first and second choices in the coalition; the liberals, by understandably focusing on the military as the major obstacle, seem doomed to be sidelined in government, with their best hope being a set of guardian institutions to protect the rights of political and other minorities. There is, of course, precedent for this kind of role being played by the Supreme Constitutional Court, as Moustafa's importantbook documents.

More comment on Egypt can be found here.

--TG

Turkey Readying New Constitution

noreply@blogger.com (Tom Ginsburg) — Sat, 31 Mar 2012 17:59:00 +0000

Turkey’s current constitution is a product of military coup (1980-1983). It was ratified by popular referendum (91% approval) in 1982 and has been amended by 17 times since then with changes to 113 articles. The last modification took place in September 2010 through a popular referendum (with 58% approval), yet the demand to replace the military government’s legacy has not eased. During the June 2011 elections, it was not only the Adalet ve Kalkinma Partisi (AKP-Justice and Development Party), which has been a long-standing critic of the 1982 constitution but all the four major political parties of Turkey campaigned on the promise of a “civilian constitution”. With the electoral victory for AKP in 2011 elections, it became apparent that Turkey would enter a constitution-making process.

Despite an overwhelming victory for AKP, the party failed to get 2/3 of the seats in the Parliament, which would make it possible for AKP to unilaterally draft and ratify a constitution. Thus, soon after the elections a commission charged with drafting a new constitution was established. The commission, called a Constitutional Conciliation Commission, convened first in October 2011; it includes three members from each of the four parties represented in the parliament. Therefore, regardless of the distribution of the seats in the parliament, the Justice and Development Party (AKP), Republican People’s Party (CHP), Nationalist Movement Party (MHP) and Peace and Democracy Party (BDP) have equal representation in the commission. And all the reports coming out of the commission indicate that there is great harmony between the members, which is remarkable compared to daily tension between the parties in parliament.

Although party leaders, including Prime Minister Erdogan have not mentioned the new constitution for months, the commission has been working studiously and it is estimated that the commission will start drafting the substance after May 1st. Cemil Cicek, the current Speaker of the Parliament who is leading the commission stated, “We have an obligation to reach consensus…. If we do not make a new constitution, we would end up giving an additional 30 years to this constitution that we have been complaining about for the last 30 years. Because I am not sure whether such composition will ever be possible for Turkey. Today 95% of the citizens is represented in the parliament. Over 80 percent of the population has participated in forming today’s parliament. Four parties declared that they will do this job.” He also pointed to the fact that there are upcoming elections in 2013 and 2014, and therefore it would be difficult for the constitution to remain on the agenda.

Although the parliament reflects a relatively fair representation of the population and therefore could be assumed to have political legitimacy to produce a new constitution, everyday politics there show the underlying tension between the incumbent party AKP and the opposition. Fist fights among the members of the parliament are a regular part of the evening news which makes observers question whether the political environment is conducive to prepare a new constitution.
Turkey’s process of drafting a new constitution was the main topic of discussion in this week’s European Parliament meeting. The meeting brought together Deputy Director-General in the Enlargement Directorate-General Joost Korte with Friends of Turkey, members of Turkish Confederation of Businessmen and Industrialists and intellectuals from Turkey. The meeting highlighted the importance of the constitutional process, the support of European Union for Turkey’s endeavor for a civilian and democratic constitution and the important elements that need to be incorporated in the new constitution. The expectation is that Turkey’s new constitution will be in line with European Union norms and will help Turkey’s aspirations to become an EU member.

The commission also reached out to hear the demands of civil society organization, most importantly its religious minority. In December lawmakers met with a Jewish group and this February Ecumenical Patriarch of Constantinople addressed the parliament and representatives of Syriac Orthodox Christians also attended the parliamentary hearing. The representatives met with the Constitutional Conciliation Commission and outlined their expectation from the new constitution. This has been celebrated as an important step for Turkey’s small religious community which for the most part of the Turkish state’s history has been marginalized politically.

Turkey’s constitution-building process is an on-going one and the upcoming months will demonstrate whether it will prove to be a product of genuine compromise among the political parties, enriched with the demands of civil society organizations and capable of addressing Turkey’s thorny issues (including civil and political rights for the Kurdish minority, religious minorities and the remnants of military tutelage) or whether it will be put to rest because the political parties are unwilling to compromise.

--Oya Yegen, Boston University, Department of Political Science

Japan Update: Repeta on Osaka Mayor Hashimoto

noreply@blogger.com (Tom Ginsburg) — Wed, 28 Mar 2012 13:03:00 +0000

Osaka Mayor Toru Hashimoto has been in office a few short months, but has become a media sensation in Japan for various audacious statements, including criticism of Article 9 of the Constitution. Last month he issued an order that all Osaka City employees participate in a mandatory survey that includes disclosure of political and union activities. Larry Repeta of Meiji University has written an excellent analysis of the constitutionality of this order here: (“Mr. Hashimoto Attacks the Constitution”). He notes that Hashimoto's order implicates Article 19 on freedom of thought and conscience, Article 21 on freedom of speech and association, and Article 28 which guarantees the right to organize. (For those interested in more on Hashimoto, Larry suggests Eric Johnston's overview of recent developments here.

Comments on this item are most welcome, in particular whether on the issue of whather such a survey would survive constitutional scrutiny in other jurisdictions.
--TG

A Victory for Term Limits in Senegal

noreply@blogger.com (Tom Ginsburg) — Sun, 25 Mar 2012 23:17:00 +0000

President Abdoulaye Wade has conceded defeat in today's runoff election in Senegal. He called his rival, former Prime Minister Macky Sall. Wade's manipulation of the constitution, which we've previously commented on here, had led to deadly protests in Dakar over the past two months. His defeat is a victory for constitutional democracy, and for term limits in a region where they have been under some attack. It is also welcome news in light of the coup in Mali that has led to ongoing disorder.

The story of Wade's loss is an interesting example of uncertainty in institutional design. In earlier constitutional amendments, Wade had extended subsequent presidential terms to seven years, beginning with this election. Now his rival will hold the office for that comparatively long period. What is good for the proverbial goose is good for the gander.

Perhaps sensing that he was doomed to defeat, Wade had recently proposed serving only four years of the seven-year term "to complete his work." (Co-authors and I had proposed the idea of reducing term size in second and third terms in a paper on term limits last year.)

-TG

Update on South African Socio-Economic Rights Jurisprudence

noreply@blogger.com (Mark Kende) — Sun, 11 Mar 2012 19:08:00 +0000

In recent years, there has been concern that the South African Constitutional Court has been retreating from its innovative socio-economics rights cases. In the most infamous case, Mazibuko, the Court in 2010 was very deferential towards the government in upholding a new problematic water distribution policy for some poor residential communities. Yet last December, the Court issued four strong victories for plaintiffs in socio-economic rights cases.

The most significant decision is undoubtedly Blue Moonlight Properties, http://www.saflii.org/za/cases/ZACC/2011/33.html, where the Constitutional Court rejected a municipality's assertions that it lacked the resources to assist a group of "sqatters" who were in danger of being evicted. This decision was extraordinary because the Court upheld a lower court opinion that rigorously examined municipal budget reports. The reports actually contained representations about a budget surplus. Even some of the Constitutional Court's earlier promising decisions stopped short of stating that the judiciary could be so aggressive in its review, when it came to the issue of resources, for separation of powers reasons. Thus the predictions of some commentators that the Court has lost its transformative credentials are being tempered. This is ironic in light of the South African government's recent efforts to supposedly examine whether the Court has been hindering transformation, discussed in Tom Ginsburg's March 3 post here.

Mark Kende

Thrilla’ in Manila: The Impeachment of a Chief Justice

noreply@blogger.com (Tom Ginsburg) — Sat, 10 Mar 2012 12:19:00 +0000

On January 16th, shortly after returning from the Christmas recess, the Philippines Senate opened a hearing on the impeachment of the Chief Justice of the Supreme Court, Renato Corona, on eight different charges. He is, for instance, accused of betraying the public trust through “partiality and subservience” in cases involving the previous president, Gloria Macapagal Arroyo—who appointed him. The impeachment process is at the crux of an increasingly tense political drama unfolding in Manila. In instigating this, the current president, Benigno Aquino III, has taken on not only the former president but also what has been traditionally one of the most respected institutions in the country – the Supreme Court. Boxing fans remember the iconic Thrilla’ in Manila that pitted Muhammad Ali against Joe Frazier in 1975. The current battle pits whole political groups against each other, and—rather than one man earning a world championship belt— the outcome may affect governance and lives in the Philippines for years to come.

While political drama is hardly new to the Philippines, few would have predicted such an intense confrontation when President Aquino was elected by a landslide in May 2010 after campaigning on a platform of good governance and anti-corruption. Recognizing the growing public dissatisfaction over public abuse under the previous administration, and promising a new “social contract” with the Filipino people, the president at once issued an executive order establishing a “truth commission” to investigate claims of corruption. But in December 2010, in the first of several setbacks for the new administration, the Supreme Court ruled the order unconstitutional; in 2011, it reversed a watch-list order barring former president Arroyo from leaving the country pending criminal investigation for electoral sabotage, and in an agrarian reform case ruled against property of President Aquino’s family. In an increasingly tense relationship, the impeachment trial thus has major political significance for an administration eager to follow through on its campaign promises.

Critics of President Aquino see the impeachment as part of a witch-hunt against former president Macapagal Arroyo and her allies. On the other hand, Arroyo’s critics consider the impeachment well founded. They point out that Justice Corona is a close ally of the former president, having served as her acting executive and legal counsel when she took office in 2001. More blatantly, Arroyo controversially promoted him to the post of Chief Justice two days after the 2010 election in which Aquino triumphed. In protest against this ‘midnight appointment’, which is constitutionally prohibited, Aquino refused to have Justice Corona administer the oath of office at his inauguration. But the Supreme Court—all its members having been appointed by Ms. Arroyo—ruled that Justice Corona’s appointment should stand.

Although Mr. Aquino and his supporters are eager to see impeachment remove Justice Corona, securing a conviction will not be easy. To begin with, there are several institutional hurdles to overcome. Under the 1987 constitution, impeachment requires 1/3 of all members of the lower House to endorse an impeachment complaint for trial by the Senate, and at least 2/3 of the Senators must vote to impeach. Mustering the numbers in the lower House may be easy, but the president’s support in the Senate is less certain—only 4 of its 23 members belong to his Liberal Party. Perhaps not surprisingly, then, procedural rulings by the Senate so far have been in Chief Justice Corona’s favor. Although his petition for the case to be thrown out was rejected, the Senate ruled that the subpoenas for Chief Justice Corona and his to testify violated their constitutional right against self-incrimination and the rules on spousal privilege. It also decided that the defense could not be compelled to release documents that could be used against Corona. Meanwhile, although the Supreme Court did reject a temporary restraining order against the trial, it gave the two houses of Congress 10 days to submit their comments on five separate petitions for a stay. A Supreme Court ruling to halt the trial would clearly provoke a major conflict between the legislature and the judiciary.

Then there are the actual impeachment allegations themselves. Some of the eight charges may be hard to sustain. For instance, there is the charge that Corona has betrayed the public trust through his “partiality and subservience” in cases involving the previous president. There are also accusations of corruption and constitutional violations. Quickly cobbled together, some of these accusations will be hard to prove, particularly considering that the Senate has so far shown little sympathy to prosecution arguments.

There is thus much at stake for both the president and the Court. The trial has polarized political and legal opinion; deep fault lines are emerging within the academic and legal communities. But the trial is exposing much more: Among the issues being debated is the political nature of the impeachment process itself. For some, the impeachment is in essence a matter of the president’s willingness to be accountable to the public and his intent to deliver on campaign promises of reform and anticorruption. They see the process as ‘politics by other means’ to promote the public will in an otherwise highly resistant environment. Others, such as the Integrated Bar, have criticized it as a “breakneck impeachment,” trumpeting concerns about mob rule, pandering to public sentiments, denial of due process, and an attack on judicial institutions.

Yet, as these differences illustrate, current developments also highlight a related point that has yet to be fully accounted for: the growing judicialization of politics in the Philippines—or perhaps rather the growing politicization of the Supreme Court by political actors on either side. Ultimately, the process may have far-reaching consequences, not only for the professionalism of the judiciary (which has already been challenged in some recent plagiarism cases) but also for governance in the country as a whole. As such, it might even revive debates over constitutional reform (also known as ‘Charter Change’) once more.

A final verdict is expected before Congress retires for the Easter recess on March 24th. The outcome is unpredictable. What is clear, however, is that no matter the outcome of the trial, damage will have been done to major institutions in the Philippines. As in the iconic match between Ali and Frazier in 1975, someone will be counted out; the real question is who will be left standing, in the court of Congress, and perhaps more important, in the public view.

--Cristina Bonoan, Alejandro Ciencia, Björn Dressel

The Buck Stops Nowhere: Japan’s Continuing Governance Problem

noreply@blogger.com (Tom Ginsburg) — Sat, 10 Mar 2012 12:10:00 +0000

The first anniversary of Japan’s nuclear crisis is an occasion for sorrow and remembrance, but also an opportunity to evaluate the consequences of the tsunami for Japan’s governance system. As reported by a recent report by Japan’s Rebuild Japan Initiative, a private group, the natural disaster was exacerbated by managerial and governance disasters. The failure of the system to respond goes well beyond the particular leaders involved, though now former-Prime Minister Naoto Kan appeared weak and indecisive. It is, at some level, deeply constitutional in the small-c sense.

The problems began with Tokyo Electric Power (TEPCO), which ran the damaged nuclear plants. It apparently believed in the myth of total nuclear safety and was radically unprepared. It also made a series of human errors early in the disaster, and at one point considered simply abandoning the plant entirely. Indeed, we now know that further disaster was averted only because the on-site manager ignored orders from headquarters to stop injecting seawater into damaged cooling tanks. Headquarters wanted him to wait until the government made a decision. The manager’s act of disobedience saved many lives, but, as the Rebuild Japan report points out, the fact that it was necessary shows how dysfunctional the operation was.

The Government, too, looked weak. Throughout the crisis, no single person or entity came forward to assume command or take responsibility. The absence of clear leadership is to some extent a reflection of Japanese cultural style. The Prime Minister has historically been a weak figure in Japanese politics, usually serving as the face of backroom power brokers. Indeed, for centuries, Japan has been characterized by a gap between the public face of authority and actual political power. Before 1868, the Emperor reigned, but the Shoguns actually ruled. In the subsequent Meiji era, a group of oligarchs ran Japan, even while they adopted a constitution with a parliament and swore allegiance to the Emperor. In postwar Japan, it has been backroom politicians who pull the strings, with the bureaucracy making day-to-day decisions. The close ties between business and the bureaucracy mean it is often hard to tell where corporate interests end and government begins.

This pattern was apparent in the response to the nuclear disaster. TEPCO and the government seemed to be working closely together to manage the situation, but the company took the early lead. The government lacked even basic capacity to gather its own information, turning over its early briefings to TEPCO, and appointing a series of “scientific advisors” with industry ties. The task of regulating the industry is divided up among an Atomic Energy Commission, a Nuclear Safety Commission, a Nuclear and Industrial Safety Agency, and several other bodies in various ministries. Chains of command were unclear. To add to the confusion, the primary nuclear agencies provided different estimates as to the amount of radiation that had been released.

Without independent regulatory and information-gathering capacity, the government acted as if its primary role was to manage the public, dispensing bland assertions not to panic and avowing that “more needs to be done.” We now know that the Government was willfully slow in releasing information so as to avoid mass panic. For several days it refused to implement the recommendations of the International Atomic Energy Agency to evacuate a village 25 miles from the reactor. At one point, it considered an evacuation of Tokyo. But Japanese bureaucrats were worried about executing a mass evacuation for which they are ill prepared. Only time will tell whether these decisions lead to higher rates of cancer and other negative health effects.

Prime Minister Kan’s reaction to reports that upwardly revised estimates of released radiation was telling: rather than issuing a blanket statement that the government had in fact fully disclosed pertinent information, he said that he himself as Prime Minister had never hid any information because of inconvenience. The implication was that, although he was the head of government, he could not be responsible for what every agency knew or revealed. Furthermore, his answer left open the possibility of selective release of information for the public good.

Contrast the Gulf oil well disaster of 2010, when President Obama was out in front of the media, talking about holding his boot to the throat of BP. The message was clear—private business could not be trusted to handle the problem without pressure from the government. One cannot imagine Obama offering to bail out BP in the middle of the disaster. To some extent, the United States has a tradition of adversarial relations between government and business. Another reason why corporate interests reign more in Japan than in the U.S. is that we have mechanisms of legal liability—mass tort suits—that are technically available but not well developed in Japan. The Japanese equivalent of a class action proceeding requires each plaintiff to specifically designate the lead plaintiff as a representative. This “opt-in” is clumsier than our own system in which a lead plaintiff can represent all class members who do not opt out. The result in Japan is a system in which corporate interests predominate, and outsider lawyers play little role in incentivizing behavior.

The Japanese media has also played a role in insulating tight government-business relations. Japan has a free press, but it has a reputation for being fairly passive. There is no tradition of investigative reporting, and until recently, reporters had to join cartelized clubs called kissha in order to cover particular ministries or topics. This tended to lead to fairly uniform reporting across the major dailies. In the recent crisis, there has been some sign of change, but many Japanese have been relying on foreign sources of news to get accurate information about the extent of nuclear danger.

The unfortunate combination of the series of earthquakes, tsunami, and compromised nuclear facilities would pose a challenge to any government, even one that had devoted extensive resources to disaster preparedness. Japan’s government no doubt saved many lives with tough construction regulations, seawalls and other preparations. Once the disaster hit, however, its performance was confused. While the immediate crisis is over, the nation’s leadership void will remain until the Japanese people demand the overhaul of a broken system in which no one accepts responsibility.

--TG

Fear and Loathing in Santo Domingo

noreply@blogger.com (Daniel Lansberg-Rodriguez) — Sun, 04 Mar 2012 18:02:00 +0000

Recently, the government of the Dominican Republic has began to implement a national policy aimed at stripping citizenship from the Dominican-born children of illegal immigrants. Primarily, the affected population consists of Dominican-Haitian adults who have spent their lives being considered legally Dominican. Often, these men and women will have never have left their birth country, are unlikely to speak Creole, and maintain few (if any) ties to Haiti. Predictably the international response has been largely critical of the measure, but so far the Dominicans stuck by their guns.

The theoretical legality of this policy stems from a clause in the country’s 2010 constitution. While restrictive citizenship laws of this nature are not particularly unusual (they have even been discussed in the US Congress from time to time,) their retroactive implementation so as to cover individuals who were previously citizens, very much is. To date, nearly 500 cases resulting from the policy have been brought before the Inter-American Commission on Human Rights.

Understandably, to those outside of the Dominican Republic, the policy raises uncomfortable specters. Historically, when unpopular minority groups (as are Haitians in the DR) have been stripped of citizenship through administrative processes, it has often precipitated future dehumanization. Those seeking an example need look no further than the Kurdish populations in the Middle East or European Jews in the 1930s.

Around the world, national citizenship usually stems from either "jus sanguinis" (“the right of blood") or "jus soli" ("the right of soil") and in most cases can be bestowed through either. The “right of soil” bases citizenship on the sovereignty of the territory in which the person was born. The “right of blood” grants national citizenship based on ancestry or, in rare cases, through religion as in Israel.

To draw an example from my own background, I currently possess three citizenships – the United States, the Netherlands and Venezuela. I was born in New York City when my parents, both of them Venezuelan, were living there on student visas. As such, I qualified for US Citizenship – through jus soli, despite my parents’ lack of long-term permission to reside here – and for Venezuelan citizenship through jus sanguinis. My Dutch citizenship was a result of my grandfather having been born in The Hague and of his citizenship being passed to his Venezuelan-born son, who in turn passed it on to his own American one.

This self-replicating aspect of jus sanguinis understandably gives some countries pause. If I have three citizenships, and my fiancé has two (Venezuela and Spain) does it follow that our children should be entitled to all four? If so, is there a risk that, with transnational populations becoming more common through globalization, the concept of citizenship might be diluted to the point where it loses all meaning?

In response to these concerns, many states (including Holland) are currently attempting to place generational caps on the passing on of citizenship through blood. Doing so makes sense given the above concerns, although it also risks creating a tiered hierarchy of citizenship. Doesn’t it somehow make me less Dutch if my children cannot be Dutch whereas some other Dutchman’s kinderen can?

Regardless, while there is a cogent argument to be made for limiting the exponential mitosis of citizenship through ancestry, the same cannot be said for policies aimed at stripping the citizenship rights of current residents after-the-fact. Unlike people born elsewhere, jus soli citizens are likely to hold strong cultural and psychological connections to their country of birth. Beyond the shattering blow to their personal identity, losing the rights and protections of citizenship can essentially leave people in the unenviable position of either having to vacate the country where they have built their lives or else suffer devastating drops in their standard of living.

Worse yet, these individuals may have no connection at all to their parents’ birth-country and, depending on their ancestral nation’s own jus sanguinis laws, may not even qualify for citizenship. Even where, as in Haiti, the country of ancestry does allow for ancestral citizenship in perpetuity, the necessary documents such as parental birth certificates may be lost. Furthermore, official cooperation from the receptor nation is likely to be unenthusiastic, particularly in cases where they would be repatriating poor populations who are difficult to assimilate culturally; the incentive is just not there. Tragically, the people most likely to be affected by these provisions are also those in the worst position to navigate the bureaucratic fracas that invariably ensues.

For years, Santo Domingo has maintained a policy of wooing its own American-born diaspora into adopting dual-citizenship and bringing much-needed investment and know-how back to the island. How can they continue to do so in good conscience when much of this desired population would not have even qualified for US Citizenship (or the educational opportunities and access to capital that come with it) were America to possess similarly backward immigration and citizenship laws to its own?

South Africa to "Review" Constitutional Court

noreply@blogger.com (Tom Ginsburg) — Sat, 03 Mar 2012 10:51:00 +0000

Fifteen years after the adoption of the 1997 Constitution, a live debate has emerged in South Africa about the role of the judiciary. This week the Government published a Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State. The developmental language returns to the emphasis on social transformation, which might be contrasted with a more rights-oriented framework. What is interesting is that the language of transformation is now being directed not with just at South Africa’s socio-economic maldistribution, but at the judiciary itself. The implication, and the view of some commentators, is that the Court has interfered with the Government’s ability to engage in social and economic transformation.

The Government grounds this exercise in Sec. 16(6) of Schedule 6 to the Constitution:
"(a) As soon as is practical after the new Constitution took effect, all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, must manage the rationalisation envisaged in paragraph (a)"

In this light, and as part of a broader set of judicial reforms, the Minister of Justice announced a comprehensive assessment of the impact of Constitutional Court rulings on the transformation of the state and society. The nominal idea is to look at the impact of the decisions on socio-economic conditions, and to enhance capacity for dialogue with other branches of government toward pursuing a common goal. Others believe the ultimate goal is a reduction in the Court’s powers. President Zuma seemed to imply this in an interview in which he said “How could you say that the judgment is absolutely correct when the judges themselves have different views about it? We don’t want to review the Constitutional Court; we want to review its powers.” While the President has had to backpedal, the debate about the role of the Court and its ability to constrain Government seems to be likely to continue over the next couple years as the review proceeds.

Burma's Constitution: Straitjacket or red-herring?

noreply@blogger.com (Tom Ginsburg) — Fri, 02 Mar 2012 02:38:00 +0000

[re-posted from New Mandala] While Burma watchers continue to debate the extent of and motives behind Naypyitaw’s current reform process (see here for my take), there seems to be much wider agreement that the 2008 Constitution is a deeply flawed document. Indiana University Maurer School of Law Professor David C. Williams calls it the “worst he had ever seen.” Other writers describe it as a patent tool to ensure military dominance over politics.

While much of this criticism is just, it is also difficult to imagine that a liberal democratic constitution would have survived long even in Burma’s current political environment. The constitution itself is only a piece of paper representing careful elite negotiations about the rules of the political game. The U.S. Constitution works because neither political party could ever completely dominate the country. Thus, each has an incentive to see that the government respects the political rights of political losers as well as winners. By contrast, Burma’s military remains powerful enough to demand a veto over any reforms. Thus, the 2008 Constitution does not create the underlying power imbalance, but merely ratifies it.

Fortunately, constitutions are not static but rather respond to underlying political dynamics. Much constitutional change comes not from rewriting the words in the text, but rather reaching a new consensus on how to interpret those words. After all, constitutional language is often imprecise, sometimes deliberately so. However, in those instances when even the smartest lawyers cannot find new meaning in old words, political elites amend or rewrite the constitution to reflect new political developments.

This happens more frequently than one might think. In fact, constitutions generally live fast and die young. According to research by Tom Ginsburg, Zachary Elkins, and James Melton with the Comparative Constitutions Project, the average lifespan for constitutions is just 19 years. To put that in perspective, a generation in the U.S. is around 25 years. (Alternatively, the average constitution lives one year less than the average Canary.) The U.S. Constitution, which will soon celebrate its 225th anniversary, is the exception, not the rule. Thomas Jefferson, who believed each new generation should write its own constitutional compact, would feel vindicated.

So should critics of Burma’s 2008 Constitution, if history is any guide. Burma’s previous two constitutions – 1947 and 1974 – each lasted around 14 years. Moreover, the 2008 Constitution lacks the ingredients for a long-lived constitutional recipe – an inclusive drafting process, detailed provisions, and a flexible amendment procedure. The question is not if Burma’s democratic opposition will be able to change the constitution, but rather when.

It’s worth looking at how other countries have handled constitutional transitions. After all, Burma’s military is not the first to have written a constitution that assures itself a veto over an elected government. When the 1988 referendum restored democracy to Chile, Pinochet’s constitution established a National Security Council; prohibited the president from removing the commander-in-chief of the armed forces; reserved 9 out of the 35 seats in the senate for non-elected appointees; and established high barriers to amendments (sound familiar?). Today, Chile is a vibrant democracy not because Pinochet wrote a good constitution, but rather because democratization made it in the military’s interests to not block constitutional reform. In 2005, the Escobar government worked out a deal with conservatives and abolished all of the aforementioned restrictions.

It’s also not uncommon for newly democratic governments to avoid the amendment process by simply convening a constitutional convention to write a new constitution. Starting afresh also encourages drafters to consider topics not included in the previous constitution. After overthrowing Marcos in 1986, Cory Aquino’s coalition took this approach in order to circumvent conservatives in the congress and ensure that the new constitution reflected their progressive human rights and nationalist economic goals. For that to happen, the country – and particularly political elites – must support the move to a new constitution. That is why almost every government puts new constitutions to a public referendum – as a symbol of that national consensus.

This approach of course frees constitution drafters from the straightjacket of a constitution imposed by the military. However, it also entails risks by reopening old debates and forcing political elites to spend time and effort forging new compromises. After 1998, for example, Indonesia’s major parties chose not to replace the 1945 Constitution for fear that doing so would give Islamists an opening to propose enshrining Shari’ah law in a new constitution. In the end, Reformasi eventually amended the constitution beyond recognition, but also managed to forestall debate on the role of Islam.

Which path is better for Burma? Will democracy be more stable if the new government accommodates the old? Or should Burma begin with a tabula rasa? Unfortunately, political scientists have only just begun to research these questions. The decision will depend heavily on the exact nature of the democratic transition. However, when transitions come they often come quickly and without warning. It is worth thinking about not only which provisions of the 2008 Constitution should be amended, but also about the risks and benefits of starting constitutional bargaining anew. If history is any guide, Burma might face this choice within the next decade or so.

--Dom Nardi, University of Michigan

Will the ECtHR have its wings clipped?

noreply@blogger.com (David Law) — Thu, 01 Mar 2012 18:42:00 +0000

The Brighton Declaration, consisting of British proposals for reform of the ECtHR and the European Convention on Human Rights itself (ECHR), has been leaked on the Internet. (The British currently hold the chairmanship of the Committee of Ministers of the Council of Europe). You can find it here and here. If some of these proposals are adopted, the ECtHR will have a lot less to do than it does now.

There is quite a bit in the declaration to digest, but highlights include the following:

- Enabling the ECtHR to give nonbinding advisory opinions upon the request of national courts.
- Incorporation into the Convention of doctrines already applied by the ECtHR, namely, subsidiarity and the infamous "margin of appreciation" that demands deference to national governments.
- Shortening the deadline for individual petitions.
- As an "alternative" to shortening the filing deadline: applications to the ECtHR would be deemed "inadmissible" if the claim is “identical in substance” to one brought in a national court, UNLESS the national court "clearly erred" in its application of the Convention.

Amendment of the Convention is inherently difficult: it requires unanimity among the 47 member states of the Council of Europe. But reform of the Court is a different story. It's clear that the ECtHR is swimming (drowning?) in cases: the Guardian reports a backlog of 165,000 cases. Institutional reforms thus far (such as the introduction of 3-judge panels, and then dispositions by a single judge) have not enabled the Court to surmount the 65,000 or so petitions that come in per year. Not that the Court doesn't dispose of a lot of cases: it does, to the tune of 50,000 or so per year. (These statistics, and a fistful more, are available on the Court's website.) But do the math, and you see the problem.

The question then is whether the cure will be worse than the disease. The "alternative" proposal to boot "identical in substance" petitions is quite drastic, obviously, and would no doubt enable the ECtHR to dispose of its docket more quickly, but at the potential cost of limiting its enforcement of the Convention to something that resembles in scope federal habeas review of state court convictions in the U.S. (i.e., extremely deferential review).

The ECtHR's own skeptical response to the Brighton Declaration can be found here; discussion of the response, and other useful commentary, can be found at the UK Human Rights Blog.

But what was the turnout in Homs?

noreply@blogger.com (Tom Ginsburg) — Tue, 28 Feb 2012 14:42:00 +0000

Syria’s Interior Ministry reported that the new constitution won the support of 89.4 percent of votes cast in Sunday's referendum, with a turnout of 57.4 percent. The document itself, available here, features a rambling preamble (I am officially coining the term “preramble”) that touches on the tropes of Arab politics: anticolonialism, the Zionist enemy, modernization, and the glories of Arab civilization. But the term “revolution” which featured prominently in the 1973 text, is no longer present. Radical chic doesn’t seem so appealing when it is directed at the revolutionaries themselves. Instead, the preamble asserts, rather incredibly, that “completion of this Constitution represents the culmination of the popular struggle for freedom and democracy.”

Article 8 has been modified to provide for a multiparty system, replacing the old version in which the baath was the leading party in socieyt. And, giving in to a longtime demand of the opposition, presidential elections will be direct. The presidency has a limit of two 7-year terms, which would give Assad anoth 14 years in power, assuming he wins. That seems likely, since all presidential candidates must have a certain level of parliamentary support. And they must be vetted by the Supreme Constitutional Court, which in turn is appointed entirely by the president and on which he also sits. In short there seem to be myriad ways of ensuring continued rule of the Baath in this "democratic" text.

--TG

Workshop on Constitutions and the Environment

noreply@blogger.com (Zachary Elkins) — Sat, 25 Feb 2012 00:20:00 +0000

Erin Daly (Widener University), writes with an announcement about the following conference, which looks intriguing:

Constitutional Environmental Rights Workshop

Thursday, May 31, 2012

Environmental Law Center

Widener University School of Law, Wilmington, DE

On Thursday, May 31, 2012, the Widener Environmental Law Center (WELC) in Wilmington, Delaware, will host a one-day scholar workshop on recent developments in the growing field of global and domestic constitutional environmental rights. Workshop organizers Professors Erin Daly and Jim May invite you to attend to present a work in progress, to comment, or to observe. Space is limited. RSVPs by 3/31/12 to: dedantinne@widener.edu

Environmental values and rights are featured in constitutions around the globe, addressing such issues as preservation, re-development, sustainability, pollution abatement, human rights, climate change, energy reform, water resources, or environmental rights. Constitutional provisions from almost six dozen countries embed individual rights to some form of healthy, adequate or quality environment, recognize basic human rights to clean water, air, and land, and environmental opportunity, or provide a right not just to, but of, nature. And more than one-third of states in the United States explicitly purport to provide a basic civil right to a quality environment or recognize environmental concerns as a policy consideration.

The workshop will serve as a forum for works/projects in progress. The objective is to share ideas in a relaxed setting, review and provide peer level comments about each other’s work, and assess current developments. Lunch and light refreshments are included. The program is free.

The program is open to (1) scholars who are interested in sharing significant works-in-progress, such as books, articles, advocacy and constitutional amendments, and (2) scholars who would be interested in providing comments to a work in progress, (3) observers. Confirmed participants so far include Mark Tushnet, Bob Percival, John Dernbach, Randy Abate, and Daniel Bonilla.

Space is limited to 50 participants. If you would like to participate, we ask that you please respond soon, and no later than March 31, 2012, to: dedantinne@widener.edu. Please note whether you would like to participate to share scholarship (one-page abstract, please), as a commentator, or as an observer. If your paper/project is chosen, then we ask to receive it by April 30, 2012.

Widener University School of Law’s Delaware campus is located roughly 10 minutes from Amtrak’s Wilmington station stop, and about 30 minutes from the Philadelphia International Airport. If you have any questions, please contact Professors Jim May (jrmay@widener.edu), or Erin Daly (edaly@widener.edu). We hope you can join us!

New Constitution Attempts, but Is Unlikely, to End Mugabe Reign

noreply@blogger.com (Tom Ginsburg) — Thu, 23 Feb 2012 20:26:00 +0000

A state-owned Zimbabwean newspaper is reporting that the new draft constitution, leaked last week, could prevent President Robert Mugabe from running for office. The salient clause, drafted by members of his own ZANU-PF party, states that "a person is disqualified for election as President if he or she has already held office for one or more periods, whether continuous or not, amounting to 10 years." Mugabe has ruled Zimbabwe since its independence in 1980, despite presiding over the spectacular decline of one of the continent's most promising economies. At a time when several entrenched dictatorships have been quickly ousted, this is an unexpected development in a country whose political processes have been perennially complex and opaque.

Executive term limits has long been a contentious issue, as the ZANU-PF is the sole political party in Zimbabwe without term limits for its representatives. Failed attempts to rewrite the constitution in 1999 and 2007 still left the ruling party intact, making this rare display of discord within ZANU-PF a possible consolation to the steady clamor for a truly democratic constitution. South African President Jacob Zuma has also continued his public condemnation of Mugabe, asserting that a new democratic constitution must precede any elections. He is expected to facilitate power-sharing talks.

The aging Mugabe turns 88 today, and has been fending off a 2008 WikiLeaks report on his treatment for prostate cancer. He has repeated his pledge to hold elections this year "with or without a new constitution" against the power-sharing agreement to run a poll after a new constitution has been written and approved. Moreover, Zimbabwe's constitutional committee will almost certainly remove the clause as it finishes review of the draft. Thus celebrations for the dictator's birthday continues apace, with a cheerful Mugabe saying he has no plans to retire soon.

UPDATE: As expected, the constitutional committee clarified the term limit clause by adding 'under this constitution,' thereby allowing Mugabe to run in the next elections. Genuine democratic reform through the constitutional process remains a bleak prospect.

--Cindy Tan

Nathan Brown on Egypt

noreply@blogger.com (Tom Ginsburg) — Wed, 15 Feb 2012 12:24:00 +0000

Nathan Brown has a terrific op-ed in the Guardian here. He makes the excellent point that there will be far too much attention, both inside and outside Egypt, to the constitutional provisions governing Islam. Such provisions are always very vague, and whether the formula is that Islam is "the leading force" or "the basis of law" or "the source of law" is often of much less relevance to actual constitutional operation than is the question of who gets to interpret the clauses. Brown thinks instead that the key issues are likely to be the structure of the political system and the independence of the various monitors and guardians, including the media and the courts.

Brown is surely right. The role of Islam in constitutions seems to me to be of only symbolic importance. But symbols have enormous political consequences for whether or not a constitution is ultimately passed and accepted. In this regard, it is a good thing that the formula adopted are usually written at such a high level of abstraction as to allow great flexibility. While from a liberal (or Coptic) perspective it would be far better if Egypt's ultimate constitution were simply silent on the issue of Islam, that seems unlikely. In a world of second-best, abstraction may be as much as form of minority protection as more structural institutional protections.

--TG

Notes from Behind the Bench

noreply@blogger.com (Zachary Elkins) — Tue, 14 Feb 2012 22:54:00 +0000

Willy Forbath and John Ferejohn (visiting from NYU) are running a unique colloquium at Texas this spring. They've invited six of the leading justices from constitutional courts around the world to visit and share insights from their time on the bench.

Yesterday, Manuel Jose Cepeda of Colombia's constitutional court -- widely viewed as one of the more autonomous and innovative courts in Latin America -- was in Austin to lead off the series. Judge Cepeda's session turned out to offer an enormously engaging peek into the court's approach to constitutional interpretation in the face of a series of important historical accidents and waxing and waning political firestorms.

There are too many thoughtful nuggets from Cepeda's remarks that I won't have time to represent them here, though I might spend a few blog posts digesting some of them. But an offhand, almost throwaway, remark by the judge about the Colombian citizenry's view of the 1991 constitution stuck with me. Judge Cepeda speculated that a widespread view among the public of the constitution is that the document is far too easily amended. By contrast, recall that the 1886 constitution that preceded the current one is thought to have turned voters and elites off due to its inflexibility with respect to amendment. Taken together, it is interesting to note the strong connection between the degree of the public's attachment to the document and the document's amendment rules. As an aside, it is remarkable how little affection the citizenry and elites displayed for the century-old 1886 document -- about 90% of the population voted to replace the 1886 constitution. If the U.S. constitution is venerated excessively here (see Sandy Levinson's Constitutional Faith -- a must read if there ever was one), perhaps the poor 1886 document suffered the opposite problem.

I'll write later on the very surprising role of style -- or at least the organizational structure of the text -- on constitutional adjudication in Colombia. (To foreshadow: copy editors have more power than we think!).