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I·CONnect

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

Out with the old, in with the new

The newly minted Supreme Court of the UK handed down its first decision this week, after coming to power on October 1, 2009. There is no doubt that Brits (and the rest of us) are still getting used to the idea of new branch of government in the UK. There is even some question (in my mind at least) about how many British citizens even know about the change. I was at dinner several weeks ago with a veteran British Political Scientist (albeit, one who has been transplanted across the pond for some time now) who, in response to my question about any thoughts on the new body, asked “What Supreme Court?,” perhaps wondering if I had mistaken Britain for, I don’t know, New Zealand.

Indeed, it seems almost unfathomable that the British would adopt such a change. For one thing, the process was downright hasty, by British standards. The Supreme court was envisioned in a deliberate, almost Lockean, move of igneous constitutional reform — not the product of sedimentation as we like to think of the origins of most of British constitutional structure. This is the short, sharp, shock that Cheryl Saunders refers to in her excellent post commemorating the last decision made by the outgoing Law Lords. The sharp part of the reform has to do with the British embrace of some notion, however moderate, of separation of powers. We shouldn’t think that the days of Parliamentary Supremacy are over — British citizens will not be electing an executive directly and with a fixed term any time soon. However, it is remarkable that the laws of Parliament will now be interpreted by another body, not Parliament itself (in the form of the House of Lords’ law committee (Law Lords)). In this context, it is remarkable indeed that this change would go down with so little fanfare (if, indeed, my guess about citizen awareness of this change is borne out by the data — I will be on the lookout for any public opinion data on the subject).

Whether under the radar or not, this arrival of this new body introduces a wave of interesting questions, which scholars will be grappling with for years. The court’s members are selected by a commission (with, presumably, professional rather than political goals) but appear to serve at the pleasure of Parliament (what exactly that will mean in practice is unclear at this point), and are obligated to retire at 70. This suggests to me a score somewhere near the mean in terms of judicial independence (compared to contemporary standards), but I’ll let our colleague Julio Rios Figueroa score that with his index. At any rate, the new body represents a significant shift upwards in independence from the prior regime. How the new court’s decisions will differ from those of the Law Lords and which cases get heard remain to be seen, but given a new structure and newfound independence, one would expect increased pushback on Parliament.

The court’s decision in its first case — what constitutes membership in the Jewish faith — suggests that its decisions will be far reaching, perhaps even up to the heavens. I will leave the discussion of that case for another post. Suffice it to say that it takes up some of the most fundamental issues in relationship between church and state.

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A New Book on the Latin American Amparo Suit

The amparo proceeding is a Latin American extraordinary judicial remedy specifically conceived for the protection of constitutional harms or threats inflicted by authorities or individuals.

Allan Brewer-Carías, one of Latin America’s most important constitutional lawyers, has written a book that highlightsthe recent trends and identifies variations in the constitutional and legal regulations on the amparo proceeding in nineteen Latin American countries and the Phillipines (Constitutional Protection of Human Rights in Latin America. A Comparative Study of the Amparo Proceedings, CUP, 2009). It is a a valuable reference guide to lawyers, legal scholars, and social scientists interested in the judicial protection of rights in Latin American countries, whether they have previous knowledge of the civil law tradition or not.

For a review of this book go to:
http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/brewer-carias1009.htm

JRF

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Published on November 7, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America
 

New report on constitutional treatment of the environment


The Reports section of this website has a new report on constitutional treatment of the environment–look under the “Special Issue Domains” menu under the Reports tab. Constitutional treatment of the environment is a relatively recent phenomenon, but is now found in some 66% of texts. Some constitutions provide for a duty of the state to protect the environment or specific natural resources, while others frame the issue in terms of a right to enjoyment of the environment. See the full report for more details!

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Published on November 6, 2009
Author:          Filed under: environment, hp
 

The Honduran Crisis as Constitutional Inoculation?

It may be time to turn to some of the broader implications of the Honduran constitutional crisis now that a resolution to at least the immediate standoff is in sight.

In particular, what will be the fate of the Honduran constitution? Ironically, some have suggested that a constitutional convention to rewrite the document – the proposal of which set the events in motion — would somehow bring closure to recent events. The predominant argument for a constitutional convention is the hope that Hondurans would benefit from some sort of national dialogue about institutions (and, presumably, some sort of healing). It’s hard to imagine real dialogue, at least in the current environment, and it seems likely that the institutional result would be something not too different from the current constitution. Certainly, one should not expect the adoption of a plebiscitarian document along the lines of the Venezuelan constitution from a constituent body that looks anything like the current legislature.


Indeed, the current constitution seems to have a rather healthy store of legitimacy and staying power. Adopted in 1982 after a spell of authoritarianism, it has now lasted longer than any previous Honduran constitution and ten years longer than the life expectancy of the average constitution. More than that, it now appears to have been inoculated by not one, but two threats to its being. It is worth recalling that many of the same group that defended the constitution this time around had floated the idea of their own term-limit bypass in 1985 in order to allow President Suazo to run again. That failure seemed to have strengthened their resolve of Michelleti and company to squash President Zelaya’s end-run around term limits.

Does the latest defense constitute another dose of crisis antibodies, something that will further inhibit future crises? The argument makes sense. We know that the risk to constitutions shrinks as they age (they crystallize, not decay). We also know that elites can more easily coordinate to defend constitutions collectively if they have expectations that others will join them. Certainly the 1985 defense and the more recent episode would provide just this sort of coordination. The 1982 Honduran constitutions may well be here to stay,albeit with some obvious revisions such as mpeachment provisions. We’ll see.

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Published on November 5, 2009
Author:          Filed under: constitutional change, honduras, hp, Latin America, term limits, Zachary Elkins
 

The European Court of Human Rights says no to crucifixes in Italian classrooms

Short version of Lautsi v. Italy: an Italian mother of Finnish origin has two children in school. The classrooms in which her children are instructed have crucifixes prominently displayed. She unsuccessfully petitions the government to have them removed before seeking relief from the European Court of Human Rights. The court awards her 5,000 euros in damages. Cue public furor.

Here’s the UK Guardian’s take on the Italian reaction. The judgment itself is currently available only in French, but there is an English-language summary available in the form of this press release from the Court itself. The conflict here between principle and practice appears to be especially stark, and in an area where emotions run especially high. On the one hand, it’s easy to see that the crucifix is a common fixture in Italian life. On the other hand, things are supposed to be different for purposes of legal analysis when the government forces them down your throat. It is difficult enough to see how one can square the practice of classroom crucifixes with the language of Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights, which the Court is responsible for enforcing. But it is even harder to see how the practice can be squared with the more specific language of Protocol 1, Article 2, which provides that “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

It is impossible to argue that crucifixes (and these are the Italian-style ones we’re talking about – the ones with an actual Jesus sculpted on them) lack religious character. And it certainly doesn’t enhance the appeal of the Italian government’s argument, either legally or politically, that the classroom crucifixes were originally made mandatory by Italy’s Fascist government in the 1920s (before the adoption of the current Italian constitution in 1948). Also worth mentioning: Lautsi, the plaintiff, had apparently relied in part upon an Italian Court of Cassation judgment of 2000 which held that the presence of crucifixes in election polling stations contravened Articles 19 and 21 of the Italian Constitution. (English-language discussion of the decision here.) One might think that case alone should have settled the matter in her favor before the Italian authorities, without necessitating recourse to the folks in Strasbourg.

Whether Italian politicians can be expected to acknowledge any of this, instead of simply pandering to public sentiment and scoring easy points by scapegoating a European court and rallying around the flag-I mean, crucifix–remains to be seen.

Also worthy of note: those in the comparative law field may be familiar with the name of at least one of the members of the seven-judge panel that decided this particular case – András Sajó, a distinguished comparative law scholar of the Central European University in Budapest, a frequent visitor at NYU Law School, and co-author of one of the leading comparative law texts (Dorsen et al., Comparative Constitutionalism, published by West). The Italian government is, not surprisingly, appealing the judgment to the court’s 17-judge Grand Chamber.

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Honduras crisis comes to a close


Honduras’ political crisis is coming to an end. Five months after being forced out of the country by the military, Manuel Zelaya will apparently be allowed to resume his term of office. The country’s election scheduled for later this month, in which Zelaya is not a candidate, will proceed as planned. I’d like to pose an open question to our bloggers and readers: what are the lessons of the crisis for constitutional design and constitutional politics?

–TG

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Published on November 1, 2009
Author:          Filed under: honduras, hp, Tom Ginsburg
 

Kuwait Constitutional Court Supports Female MPs


Kuwait’s Constitutional Court ruled Wednesday that two female MPs who refuse to wear the hijab would indeed be allowed to sit in the country’s parliament. The two women were among four elected this past May, the first women to serve in that capacity. Conservatives had challenged their election on the basis that they refused to wear the hijab, in defiance of a recent ruling by Kuwait’s fatwa department that Muslim women are required to do so. This is another interesting example of constitutional courts mediating between religion and constitutionalism, an important topic on which our own Ran Hirschl has a forthcoming book.

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Published on October 29, 2009
Author:          Filed under: hp, kuwait, Tom Ginsburg
 

Canadian Language Wars (yet again)

Canada is arguably one of the world capitals when it comes to language rights jurisprudence. The fundamental disagreements concerning the preferential status of French in Quebec vis-à-vis Canada’s commitment to bilingualism have been a perennial bone of constitutional contention over the last 30 years.

The formal status of English and French, as well as minority language education rights in the two languages are protected by s. 133 of the Constitution Act, 1867, and by ss. 16-22 & s. 23 of the Charter of Rights and Freedoms, 1982. Since the emergence of a nationalist movement in Quebec in the 1960s, and even more so since the rise to power of the Parti Quebecois in the mid-1970s, the Quebec provincial government has made a continuous effort to promote French and establish its status as the primary, or even sole, language in Quebec. In 1984, the Supreme Court of Canada ruled that the education provisions of Quebec’s Bill 101 (requiring that teaching in Quebec be in French only) contradicted s. 23 of the Charter and should, therefore, be struck down. In Ford v. Quebec (1988), the Court ruled that the provisions of Quebec’s Bill 101 requiring that public signs and advertisements may only be in French violated the Charter’s freedom of expression guarantee. It also ruled that a blanket use of an override declaration by the Quebec government (Bill 178) was an improper and invalid application of the Charter’s “override clause” (section 33 of the Charter). At the same time, the Court has issued a series of rulings protecting the status of French and French education in predominantly anglophone settings, from Alberta to Manitoba, and from PEI to New Brunswick. But the language question in Quebec continues to linger.

In 2005, the Supreme Court of Canada revisited the tension between Quebec’s Bill 101 and the Charter’s section 23, when it ruled unanimously that in determining a child’s entitlement to minority language education (in this case, education in English in Quebec), section 23 must receive a broad interpretation consistent with the constitutional objective of protecting minority language communities. The requirement in Bill 101 that a “major part” of a child’s past educational experience be conducted in English in order to be entitled for further English education must involve a nuanced qualitative, not a strict quantitative, assessment.

On October 22, 2009, another landmark Supreme Court ruling on the matter was released. Under s. 23(2) of the Charter, citizens of Canada of whom any child is receiving or has received instruction in the language of the linguistic minority (in Quebec, that would be English) may have all their children receive primary and secondary school instruction in that language. Quebec’s Charter of the French Language establishes that, in principle, French is the common official language of instruction in elementary and secondary schools in Quebec, but allows for children with some history of schooling in English to receive instruction in English in a public or subsidized private school in Quebec. That provision created a loophole that essentially allowed parents whose children were not entitled to instruction in English to send one or more of their children to unsubsidized private “bridging schools” (écoles passerelles) in English for a year so that they would then be eligible to attend publicly funded English schools.

In 2002, two new paragraphs (AKA Bill 104) were added to Quebec’s Charter of the French Language in response to that loophole. It suggested periods of attendance in such “bridging schools” as qualifying children for public education in English should be disregarded. A group of Quebec parents, naturalized immigrants of Asian origins (i.e. neither francophone nor anglophone background) argued that Bill 104 violated their constitutional rights as it effectively closed the only way open to them to acquire public education in English.

Drawing on a typical “section 1” analysis (the Canadian version of what has been dubbed “proportionality”), the Supreme Court ruled unanimously that Bill 104 was “excessive” in its infringement upon parents and children’s minority language education rights. The court also held that the loophole affected few students and that it did not pose a threat to the vitality of the French language in the province. The Court thus granted the government of Quebec a year to amend the law in a way that would balance more adequately between the preferential status of French in Quebec and minority language education rights in that province.

Quite predictably, the ruling awakened some nationalist sentiments in Quebec. Some of it is no doubt authentic. But part of it politically driven. The current Premier, Jean Charest of the moderate Liberal Party is portrayed by the Parti Qubecois opposition as too soft on Quebec sovereignty issues. The opposition’s staged outrage is thus meant in no small part to capitalize on the Court’s anti-Quebec decision to denigrate Charest politically. The opposition leader, Pauline Marois, said Charest had a duty, as the head of the Quebec nation, to protect the French language despite the court decision. “The Supreme Court, a court named by another nation, has once again hacked away at a tool that is fundamental for the Quebec nation,” Marois said. “How does the premier intend to correct the situation?” Only time will tell. Or in French (my 4th language, mind you): Seul le temps nous le dira.

RH

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Published on October 23, 2009
Author:          Filed under: Canada, Language rights, Ran Hirschl
 

Courts in authoritarian regimes


Some readers may know that I have an occasional interest in the role of courts in authoritarian regimes. There is a wonderful quote in today’s NYTimes from Iranian “opposition” leader Mehdi Karroubi, who has been threatened with trial at a special court for clergy. The concept of this special court is itself interesting: the court is used as a device to maintain cohesion within the dictatorial class, somewhat similar to Robert Barros’ found in his study of the Chilean constitutional court under Pinochet. The idea here is that constitutions can be used by authoritarian regimes to coordinate the disparate interests of the members of the ruling class.

But Karroubi’s quote, copied below, illustrates the additional idea that because of their public nature, courts can be used to rally support for the opposition, even in cases that they lose. Karroubi says: “I am not only unworried about this court …. I wholeheartedly welcome it since I will use it to express my concerns regarding the national and religious beliefs of the Iranian people and the ideas of Imam Khomeini, and clearly reveal those who are opposed to these concerns.” Courts are, as Tamir Moustafa and others have observed, double-edged swords.

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Published on October 23, 2009
Author:          Filed under: hp, Iran, Tom Ginsburg
 

Constitutional democracy as a national security strategy


Longtime China observer Jerry Cohen recently posted a critique of Taiwan’s government after its prime minister reacted against foreign critics. See here . One theme of Jerry’s comments is that Taiwan, as an island whose defense rests on explicit and implicit guarantees from the United States, is now of strategic value not because of its location but because of its values. The US might defend Taiwan because it is a democracy, but is unlikely to defend it for other strategic reasons in an era of a rising and important China. The interesting implication is that pursuing constitutional democracy might make sense not only for internal moral reasons, but as an element of a security strategy. Thanks to Tokujin Matsudaira for bringing the blog to my attention.

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Published on October 22, 2009
Author:          Filed under: hp, Taiwan, Tom Ginsburg