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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

Showing Germans the Light

–Or Bassok, Tikvah Scholar, NYU School of Law

Conferences in the US on German public law often digress into an attempt by Americans scholars to show their German counterparts the scholarly “light.” The recipe has several variations.[1] According to the milder version, German public law scholarship fails to give an adequate account of reality when it comes to issues such as the relationship between courts and other political actors or to judicial motives. German scholarship thus needs to adopt a more realist view, similar to the one characteristic of American scholarship.

According to the harsher line of critique, German public law scholars continue to adhere to an unrealistic view of courts (the first line of critique) and to doctrinal analysis of law since they are not sufficiently aware that legal concepts do not really decide cases (the indeterminacy problem). American public law scholars have seen the legal realist “light” presented by the legal realist movement and thus are not focused anymore on doctrinal analysis. Therefore, German scholars need to be enlightened by American scholarship, or so the claim goes.[2]

The recent workshop “The Changing German Landscape of Theorizing Public Law” held at NYU School of Law symbolized a departure from these lines of critique as all papers presented an Americanized style of analysis written on German public law. Yet one should stop and consider two issues that stand at the core of the harsher line of critique. First, German scholars acknowledged the lessons learned from the legal realist movement earlier than Americans scholars but did not follow them. Second, it is not clear that following the realist “light” will lead to positive consequences. In this brief post I will address these two issues.

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Published on May 22, 2013
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The Politics of Tunisia’s Final Draft Constitution

–Duncan Pickard, Democracy Reporting International and Rafik Hariri Center for the Middle East at the Atlantic Council [cross-posted from MENASource, a project of the Rafik Hariri Center]

Tunisia’s constitution-drafting process has reached another milestone: the committee coordinating the drafting of the country’s post-authoritarian constitution presented its third and final draft to the National Constituent Assembly on April 22. The draft strikes important compromises that political parties made on the most vexing issues of the process, including the balance of executive powers, the protection of human rights, and the role of religion in state and society. Although the draft garners the support of a large and diverse group of Constituent Assembly members—no small feat in the face of intense partisanship—its ability to stand up to the criticism of a plenary session is in question. The final constitution will need to pass with a two-thirds majority in the Assembly (the preference of most blocs) or failing that, a public referendum. There are many roadblocks to completion that yet make consensus elusive.

The distribution of executive powers and the role of religion in state and society have been the most divisive issues. Ennahda, the moderate Islamic party with 40 percent of seats in the Assembly, prefers a parliamentary system: a strong prime minister and a weak, indirectly elected president. Opposition parties support a presidential system whereby the president would be directly elected and have significant powers. Ennahda considers its leadership more sustainable in a parliamentary system given the fissures in the alliance of secular parties, while secular leaders think that they could overcome their differences to elect a president who could balance an Ennahda majority in parliament. The debate around executive powers evaded consensus in the committee responsible for addressing the issue. The first two constitutional drafts had two competing versions of the relevant articles.

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Published on May 16, 2013
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Is Turkey in the process of adopting a new constitution or a large scale constitutional amendment? Some questions concerning constitutional theory

–Ali Acar, PhD Student at European University Institute  [ali.acar@eui.eu ]

Turkey is currently undergoing a process of drafting a new constitution. The lack of legitimacy of the present, 1982, constitution, which was originated from the 1980 military coup d’état, renders adoption of a new contitution necessary in the public opinion. There are high public expectations for the new constitution in terms of assuring democratic standards.

The process for the new constitution officially started on 19th October, 2011. In order to carry out the task of drafting, a parliamentary committee of constitutional reconciliation was established. The committee is composed of an equal number (three) members from each of the four political parties sitting in the current parliament, plus the president of the parliament who serves as the president of the committee. According to the rules of procedure the committee itself adopted, consensus/unanimity is required for each matter to be put into the draft constitution.

Some of the political parties, led by the governing Justice and Democratic Party (AKP), and the (pro-Kurdish) Peace and Democracy Party (BDP), argue that the process should lead to a totally new constitution (here in the technical/constitutional law sense of the term), while others, the Republican People’s Party (CHP) and the Nationalist Action Party (MHP), seem to hold the view that the drafting process should be directed toward a large scale constitutional amendment. In other words, the majority of the current composition of the Parliament, represented by AKP, seems to assume to itself the constituent power of a constitutional assembly, even though this claim is dubious from the perspectivess of the CHP and MHP. Of course, these different opinions will have some important consequences, which I will come below.  (By the way, the current composition of the Parliament resulted from the election of June, 2011, held for the regular term of legislative election.)

The said committee seems to now to have reached an impasse, since the consensual/unanimous decision-making rule does not resolve the different and apparently irreconcilable opinions of the political parties, especially on some particular issues. Of them, the Kurdish question and some of the proposals for its solution (such as public education in one’s mother tongue and local autonomy), and the form of government (the AKP’s insistence on presidential or semi-presidential system) are the most controversial. If the committee fails, the AKP will most probably instigate its own plan to pass the new constitution. It is not very clear at this stage if it would pursue a large scale constitutional amendment or a new constitution in the technical sense.  The AKP argues for the latter, but in a perplexed and an unconvincing manner. And this causes some complex questions concerning constitutional theory, to which I will come shortly below. Read the rest of this entry…

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Published on May 13, 2013
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The Judicialization of Pure Politics in Brazil

–Vanice Regina Lírio do Valle, Estácio de Sá University Law School

The Brazilian Constitutional Court gained visibility worldwide due to its recent ruling in the “mensalão” case – a trial involving a Congressional vote-buying scheme which ended in the conviction of many politicians associated with former President Lula, and also numerous congressmen still in the House. The repercussions of the trial led its reporting Minister – Joaquim Barbosa, now  President of the Court – to be appointed by Time Magazine as one of the 100 most influential people in the world.[1]

The Court’s activism has led to some tension between the Court and the legislature. A recent confrontation between the Court and Congress evidences that perhaps judicialization of pure politics has crossed a line, which isn’t sitting well with the legislature.
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Published on May 8, 2013
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Libyan Congress Blunders Constitutional Moment

–Lorianne Updike Toler, Esq., Lorianne Updike Toler Consulting & The University of Pennsylvania Law School

The April 10 vote by the General National Congress of Libya amending their interim Constitutional Declaration was incredibly short-sighted.  Instead of fixing the largest problem with the Declaration, the GNC dealt with the issue for which they were receiving the most political heat: popular elections rather than GNC appointment of the constituent assembly that will write Libya’s constitution.

While Libya has many advantages, including a sophisticated intelligentsia, a returned and educated Libyan diaspora, and a respectful international community, they lack political and consensus-building experience—not to mention constitution-writing experience—thanks to 42 years of Gaddafi rule.  Their inexperience is demonstrated by the poor drafting and, now, poor amending of their interim Constitutional Declaration.

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Published on May 4, 2013
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Egypt’s Constitution: The Religious Pot

–Mohamed Abdelaal, Indiana University Robert H. McKinney School of Law, Alexandria University School of Law

Immediately after the Egyptian Revolution in 2011, which ended thirty years of repression and dictatorship under the regime of former President Hosni Mubarak, Egyptians faced the serious challenge of electing a new president and building a new Egypt. Amidst these transitions, the country has witnessed the rise of the Islamists, a phenomenon that has given birth to a bitter battle with the Liberals regarding Egypt’s status as a religious or secular country. Article 2 of the 2012 Constitution, which lists the principles of sharia law as the main source of legislation, plays a pivotal role in steering this debate.

Egypt’s path towards the Islamization of its constitution went through many historical stages. In Egypt, the idea of “Islamization of the constitution” does not mean designing a religious state, but rather embracing the principles of the Islamic shari’a in the constitution. In other words, the battle over Article 2 of the Constitutional Declaration followed many historical precedents that shaped the Article. The whole story started in Ottoman Egypt; however, the argument that took place in Ottoman Egypt was not as polarized as the one that is happening today because in Ottoman Egypt no calls were ever heard to govern irrespective of the shari’a or to abolish it.

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Published on May 2, 2013
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Bachelet Appoints Group to Study New Constitution for Chile

–Claudia Heiss, Instituto de Asuntos Publicos, Universidad de Chile

On April 23rd former President of Chile Michelle Bachelet (2006-2010), the front-runner candidate for the November presidential election, announced a commission to study a new constitution. The group is composed of nine lawyers (including two women) some of whom contributed to the 2005 reform signed by Bachelet’s predecessor Ricardo Lagos. That reform eliminated some of the most ominous institutional enclaves of the Pinochet dictatorship, like the appointed and for-life senators, and the political role of the armed forces through the National Security Council.

The center-left coalition that ruled the country from 1990 to 2010, the Concertacion, had been reluctant to replace the 1980 Constitution, an illegitimate decree of the dictatorship, on grounds that the transition to democracy had to play by the rules and produce incremental reforms in time. Social pressure, however, has increased since 2006, demanding deeper political reforms that include a change of the binomial electoral system which guarantees a legislative tie between the center-right and center- left coalitions. The supermajorities of the Constitution and its 18 Organic Constitutional Laws (requiring 4/7 of the legislature to be amended) have given veto power to the parties of the right, blocking any substantive political reform.

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Published on May 1, 2013
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Marry me or tax me? That is the constitutional question

–Angelique Devaux, French Licensed Attorney (Notaire), LL.M. in American Law (Indiana University Robert H. McKinney School of Law)

To marry or tax me. This could be the modern Shakespeare quote heard in the oral arguments last March 27th at the US Supreme Court in the pending case Windsor v. United States. But it is more about a story that happened in several jurisdictions around the world facing the same controversial legal and constitutional issue: whether your government should define marriage as an opposite-sex couple only, or not …?

This post explains for readers how the case came to be, and it situates its significance within a larger comparative context.

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Published on April 29, 2013
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Ireland’s Constitutional Convention Considers Same-Sex Marriage: Part II

–Eoin Carolan, University College Dublin

Ireland’s Constitutional Convention has voted overwhelmingly in favour of a proposal to amend the Irish Constitution to allow for civil marriage for same-sex couples. 79 Convention members favoured the proposal with 19 against and 1 expressing no opinion.

There was also a similarly large majority in favour of a directive amendment requiring the State to provide for same-sex marriage with 78 members opting for this, as against 17 members who preferred a permissive amendment and 1 who expressed no opinion.

The background to the Convention and to its consideration of same-sex marriage under the Irish Constitution was discussed in a previous post, available here.

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Published on April 25, 2013
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New Developments on Japan’s Proposed Constitutional Amendment Process

–Tokujin Matsudaira, Kanagawa University Faculty of Law

Recently the Asahi Shimbun Weekly (ASW, a special Monday edition of Asahi News) interviewed eight constitutional scholars and asked them to answer a survey about the possible amendment of Japan’s postwar constitution. The results appeared in ASW on April 8 (in Japanese).

The eight scholars are Yasuo Hasebe (Professor of Law at the University of Tokyo [UT]), Joji Shishido (Associate Professor of Law at UT), Miho Aoi (Professor of Law at Gakushuin University), Tsunemasa Arikawa (Professor of Law at Nihon University), Setsu Kobayashi (Professor of Law at Keio University), Katsutoshi Takami (Professor of Law at Sophia University), Asaho Mizushima (Professor of Law at Waseda University) and Shuji Yagi (Professor of Political Science at Takasaki Keizai University) .

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Published on April 23, 2013
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