magnify

I·CONnect

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

17 years and now…this?

The new Burmese constitutions is extraordinary on many levels. First, is the waiting-for-Godot quality of the process that produced it. It took about seventeen years from initiative to ratification to get the document out the door. That is far and away a record. True, other countries kick around the possibility of a new charter sometimes for years. But once a formal process is under way, it is usually a matter of a year or two for most countries.

Together with some help from one of our graduate students (Justin Blount), the CCP team conducted an analysis of a randomly selected group of 50 of the 800 or so historical constitutions. The average process time from formal beginning to formal promulgation was about a year and a half. Getulio Vargas’ self-serving 1937 constitution for Brazil took only a couple of weeks to remove the constraints on his reelection plans.

After 17 years, you would think that the Burmese authorities would take care to put the charter in force on a solid footing. They had every intention to do so, with a referendum set for a date in May 2008. Then comes the cyclone, seemingly a natural disaster of historic proportion (in retrospect, the damage was much less than was initially feared). The referendum was to occur n the midst of the fallout of the cyclone (at its peak, almost). Rather than postpone to vote, the authorities were determined to push their new creation through. And push it they did. The vote was, not surprisingly, a highly consensual one with very few reported “no” votes. But what an unglorious sendoff to a document so long in the making!

We have not yet analyzed the document in much detail, but it’s clear that 17 years did not produce a tight, bulletproof text. Right out of the gate, citizens noted a problem with the document, or at least the version that was available at the time of the referendum. That version stated that amendments to the draft needed to be approved by “all of the voters,” a seemingly impassible hurdle. Some suspected that this was indeed the intent of the drafters — after all, after 17 years, why not make the document impregnable! But Burmese authorities blamed the clause on a typo, saying that their intended provision called for a majority of voters to approve changes.

Something tells me that more twists, turns, and rough terrain lie ahead for this seemingly ill-fated document. I will keep you posted.

Print Friendly
Published on August 3, 2008
Author:          Filed under: hp, process, Zachary Elkins
 

Major French Constitutional Reform

A major package of constitutional amendments backed by President Sarkozy passed by a single vote last week in the constitutional commission, a special joint session of deputies and senators. The bill sets a two-term limit for presidents, gives parliament a veto over some presidential appointments, and ends government control over parliament’s committee system. Public debate focused on letting the president address parliament once a year in a formal “state of the union” address, which has not been allowed since 1875 under the strict theory of separation of powers. The changes seek to improve parliamentary oversight ability, but also move the French system a tad closer to the American one.

Under the radar was another blow to the system of separation of powers, namely a provision allowing the Conseil Constitutionnel, France’s constitutional court, to review existing legislation for the first time. Review can occur on request by the Conseil d’Etat or Cour du Cassation (France’s administrative and supreme courts, respectively). Because of the longstanding fear of government by the judiciary, French constitutional practice had previously restricted the Conseil Constitutionnel to reviewing legislation before promulgation. The change means that for the first time since the French revolution, France has a constitutional court like those found in other European jurisdictions that can strike existing legislation.

To some extent the change (brought to our attention by Alec Stone Sweet of Yale) will have less impact in practice than it might have otherwise because French courts were already able to interpret French constitutional rights, even if they could not overturn legislation. Also, the European Court of Human Rights provided an alternative forum in which to challenge government policies that interfered with rights. But the changes will make the Conseil more visible and will set in motion interesting dynamics within France’s courts.

Print Friendly
Published on July 29, 2008
Author:          Filed under: hp, Tom Ginsburg
 

Why this forum?

Welcome! Here you will find commentary on issues and events surrounding constitutional design. The goal is the same as that for constitutionmaking.org more generally: to connect scholars and drafters, neither of whom can very easily follow what the other does. To that end, we endeavor to bring to light two sorts of information: (1) reports of constitutional deliberation (and challenges therein) from various corners of the world, and (2) reports of noteworthy research on the subject.

The ideas are serious but, we hope, that the tone will anything but ponderous; depending upon the authors’ energy level, it will ideally be lively and direct. If there is a lighter side to constitutional design, an irony worth exploring, or simply a good story from the field, we will not shy away from sharing it. In the end, however, the idea is to help drafters make decisions and to sharpen and re-direct scholars’ research and agenda.

The forum’s authors welcome reaction from readers (in the form of comments to posts) and are certainly amenable to more sustained and two-way communication. We plan, from time to time, to invite some to join us as regular authors or guests and will explore other ways to incorporate questions and comments in a more prominent form. If there are burning questions or comments that deserve to be headlined, we invite readers to email them to us and we will be happy to post our thoughts on the subject or invite others to do so.

Aside from that, we’ll refrain from making any broad proclamations about the forum. Should it prove useful and thought-provoking we will certainly keep it going.

Print Friendly
Published on July 27, 2008
Author:          Filed under: hp, inaugural post, Zachary Elkins