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I·CONnect

Blog of the International Journal of Constitutional Law

EU says Turkish reforms aren’t enough

In these pages, Ozan Varol posted a nice overview of the Turkish constitutional amendments in September. Varol had noted that the otherwise democratic reforms could potentially do some real damage to the independence of the judiciary. According to a story in Today’s Zaman, an English-language paper published in Turkey, help may be on the way.

The EU is pushing for Turkey to wipe the constitutional slate clean. Leveraging the possibility of EU accession, members of the EU parliament have proposed a resolution that would urge Turkey to replace its constitution with one that protects religious and cultural rights better and more firmly establishes civilian control over the military.

The draft resolution cites the “pressing need for an overall constitutional reform transforming Turkey into a full-fledged democracy, with the protection of human rights and fundamental freedoms at its core.”

We’ll have to keep an eye on this. Among other things, the resolution presents an interesting test of the power of EU conditionality.

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Published on December 8, 2010
Author:          Filed under: hp, Turkey, Zachary Elkins
 

In memoriam: Cai Dingjian

China lost one of its most distinguished scholar in Constitutional Law, and a leading advocate of political and legal reform, with the death of Cai Dingjian at the age of 54 on November 22, 2010. His funerals provoked a wave of emotion among his students and colleagues, and all of those working to promote legal reform in China. Chinese media and overseas messages largely reported his accomplishments and paid tribute to his memory.

Cai Dingjian was a soldier of the PLA at the end of the Cultural Revolution when he joined the Chinese University of Political Science and Law (CUPL or Zhengfa Daxue) in 1979 to study Law. He then worked for one year (1983-1984) in the Political Department of the PLA before returning to Peking University to receive a Master in Jurisprudence. He later left the PLA, and joined in 1986 the National People’s Congress Standing Committee, the country’s highest legislative body, where he stayed for the next 17 years. He was vice-bureau-chief of the NPC Standing Committee secretariat when he left at the end of 2003. Cai then returned to academia, to become one of the most outspoken advocate of constitutional democracy in China. He founded and became director of the Centre for the Study of Constitutionalism at CUPL, and the Centre for People’s Congress and Foreign Legislative Studies at Peking University. His activities were entirely aiming at promoting constitutionalism and the rule of law in his country. In 2003 one of his most noticed publications rejected the argument according to which China would not meet the cultural conditions necessary for electoral democracy. He published more than 200 articles.

His purpose however was not to theorize about the Chinese constitutional experience, but to make the reform happen, starting with the rule of law, which he defined as “the mission of his generation”. He devoted until the end a tremendous energy to promote experimental reforms, to train officials, and to take vigorous stands in the media. His favorite issues included legislative procedures, administrative transparency, public participation in decision-making, and fighting against discriminations. His last publications include Legal Modernization and Constitutionalism, China’s Journey towards the Rule of Law: Legal Reform, 1978-2008, and Report on Overseas Experiences of Anti-discrimination Law. His last essay, Democracy as a Modern Life-Style, has been published in January 2010.

Cai Dingjian will remain as one of the most esteemed public intellectuals of his generation. He firmly believed that legal reform was a necessity, and had chosen to promote it with political opportunism. With the defense of these ideas in Chinese society and institutions, his legacy is of immense value. He received respect from Chinese and foreign intellectuals, but equally from those fighting to defend or to promote justice wherever needed, and whenever possible. The advocates of the rule of law in China know that results are fragile, and that much remains to be done. They lost a brilliant leader and one of their best companions.

— Richard Balme, Sciences Po [reposted from http://sciencespo-globalgovernance.net/]

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Published on December 6, 2010
Author:          Filed under: China, hp
 

World Congress of the International Association of Constitutional Law in Mexico City

For those with an interest in comparative constitutional law, a good place to be this coming week is Mexico City. The VIIIth World Congress of the International Association of Constitutional Law kicks off tomorrow at the Hilton Reforma Mexico City. The latest version of the program is available here. As one might imagine, a lot of comparative constitutional law folks will be in attendance, including a couple of contributors to this blog. On Thursday afternoon, Ran Hirschl will be co-chairing a workshop on the subject of methodology in comparative constitutional law, and I’ll be speaking on the use of large-n (quantitative) methods. Another shameless plug: Thursday morning, Vicki Jackson will be chairing a plenary session on the universality vs. particularity of constitutional principles, featuring one of my most distinguished hosts at National Taiwan University, Jiunn-Rong Yeh. Come one, come all!

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Cote d’Ivoire’s Constitutional Council invalidates election results

Per the wire feed carried by the New York Times, Cote d’Ivoire’s Conseil Constitutionnel has just overturned the election commission’s conclusion that the opposition candidate won the country’s presidential election, and has instead handed victory to the incumbent president Laurent Gbagbo. The Times article notes that the election results reported by the election commission had been found credible by the African Union and the United Nations. Indeed, the U.N. Secretary-General’s special representative in Cote d’Ivoire has denounced the Conseil Constitutionnel’s actions in this case.

According to both the Prime Minister’s official webpage (in French) and French Wikipedia, the Conseil Constitutionnel is supposed to consist of a President, two Vice-Presidents, and six councillors, ***all appointed by the President***. In addition, former Presidents (of the country, not the constitutional council) are life members. Its mandate includes ensuring the regularity of elections and referenda.

It is not difficult to understand why a president might want a judicial body consisting almost entirely of his own appointees to decide whether he has won re-election, or why such a body might take liberties with the actual election results. The Conseil Constitutionnel does not seem to be contributing much in the way of checks and balances, it would seem.

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Published on December 3, 2010
Author:          Filed under: Conseil Constitutionnel, Cote d'Ivoire, David Law, election, hp
 

More Diversity on the U.S. Supreme Court

Over at Balkinization, Jason Mazzone discusses the need for more diversity on the U.S. Supreme Court. The concept of diversity can be viewed in several ways of course. It has been argued that the U.S. needs Justices from more varied law schools, that there should be more racial diversity on the Court, that the Justices should not possess mainly academic and judicial job experience, etc. Professor Mazzone provocatively suggests that placing a foreigner on the U.S. Supreme Court would be valuable. http://balkin.blogspot.com/2010/11/how-to-really-add-diversity-to-supreme.html Yet this is being done right now elsewhere. For example, I believe Kosovo has three foreign judges on their new Constitutional Court. One of them is a former judge from Minnesota. Moreover, other courts have diversity in the form of law clerks. South African Constitutional Court Justices can generally have one foreign law clerk and are essentially encouraged to do so. While I don’t see Professor Mazzone’s interesting suggestion coming to fruition any time soon, similar approaches are not unprecedented.

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Published on December 2, 2010
Author:          Filed under: hp, Mark Kende
 

Analysis of the October amendments to the Constitution of Georgia


The Parliament of Georgia passed a new wave of constitutional amendments on October 15, 2010, which have seriously reconfigured the relationship between all three branches of government and have affected their rights and responsibilities. These amendments limit the rights and functions of the President in favor of the growing importance of the Prime Minister and the Parliament. The newly adopted provisions will go into force in two periods.

A series of provisions, including those that reformulate the preamble and certain fundamental rights, define the role, structure, powers of the local government, and the Courts will enter into force as of January 1, 2011. Other provisions that reconfigure the relationship between the executive and the legislature, and affect the new balance of powers between the Parliament, Government and the President shall come into force after Presidential elections of October 2013 as the newly elected President will be sworn in.

These amendments have been passed amid widespread speculation that Georgia’s current President Mikhail Saakashvili will follow the example of Russia’s former President and now Prime Minister Putin. Saakashvili has been serving his second and final term as President. It has been alleged that by diminishing the powers of the President and increasing the authority of the Prime Minister, Saakashvili has been preparing himself to serve as country’s next Prime Minister. The multiplicity of newly emerged websites and social networking sites running the slogan “Saakashvili for the Prime Minister” further exacerbates these suspicions.

As it is impossible to discuss with the due details all the adopted provisions, this post will solely be devoted to the articles that impact the powers of the three branches of government. Firstly, it should be noted that the President remains the Head of the State and the guarantor of Georgia’s integrity and independence. He/she remains to be the Chief of the Georgian army as well as Georgia’s supreme representative in international affairs. The requirements for presidential candidates have been slightly altered. For example, it will be harder for Georgians residing abroad to run for the position. Considering that according to the UN Human Development Index Georgia is at the country with the highest emigrating population in the world, this amendment will exclude a substantial portion of Georgian population residing outside Georgia from contemplating running for the post of the President. According to this amendment, the person running for the President needs to be at least 35 years old, should have Georgian nationality by birth, should have lived in Georgia at a minimum for fifteen years, and should have been residing in Georgia for the last three years leading up to elections. Prior to amendments, all the prerequisites had been the same except the three year residence requirement. Original version required that the candidate resided in the country at the moment of elections, not for three years prior to elections.

Furthermore, the preconditions for serving as presidential candidates were expanded by adopting a restriction on dual nationality of the President, the Prime Minister and the Speaker of the Parliament. Such a restriction is innovative, and runs counter to the direction adopted by Georgia’s recent (2004) steps towards allowing dual nationality in certain cases.

Having said that, it should be noted that powers of the President have been seriously curtailed with great authority delegated to either Prime Minister or the Parliament. The starkest difference is in the increased powers of the Prime Minister in relation to appointing and leading the Government. Prior to these changes, President appointed the Prime Minister and gave consent to appointment of Ministers. Only after appointing the Prime Minister and consenting to candidatures of other Ministers, the President requested the vote of confidence from the Parliament. After adoption of October 2010 amendments, the leadership role of the Prime Minister has changed. The wording in article 79 “[T]he Prime Minister is the Chair of the Government” has been changed to “the Prime Minister is the leader of the Government”, with the specific definition of Prime Minister’s functions having changed as well. According to the new phrasing of article 79, the Prime Minister “defines the areas of activity of government, organizes the work of the Government as well as coordinates and supervises the activity of its members.” Prior to amendments, the article also required that the Prime Minister report to the President on the activity of the Government and underlined that the Prime Minister is accountable before the President and the Parliament. This latter phrase has been removed in the current reading, implying that the Prime Minister’s accountability and reporting obligations before the President have been removed.

Moreover, the Prime Minister is henceforth empowered to appoint unilaterally and dismiss members of the Government.

Changes in the President and Prime Minister’s authority to issue and annul legal acts are sufficient to illustrate the degree of changes in their authority. In February 6, 2004, as newly elected President Saakashvili put forward, and the Parliament adopted a set of sweeping changes to the Georgian Constitution; these amendments included and added power of the President to suspend or annul written legal acts of the government and other executive agencies, if they contradicted the Georgian Constitution, international agreements, laws or Presidential Acts. This new power enshrined under then-article 73(3) was subject to critique from domestic as well as international organizations, as it encompassed a function of judicial review traditionally in the domain of the Constitutional Court of Georgia. Amendments of October 15, 2010 no longer allow for such Presidential power. Moreover, the ability of the President to issue legal acts was further severely constrained with the new institution of “countersignature.”

The phenomenon of countersignature is completely new to the Georgian legal culture. From now on, legal acts of the President will require a ‘countersignature’ by the Prime Minister, except the acts promulgated during martial law. Orders of the President, which, according to the Law on Normative Acts, is issued to regulate individual cases such as e.g. Appointments or dismissals of certain personnel, granting of awards, as well as other acts, which do not have a wide and continuous legal effect, do not require a countersignature. In case of countersignature, responsibility for the act rests with the Prime Minister.

The new Constitution puts forward a clearly defined, supreme role for the Government. Prior to amendments article 78 stated: “The Government of Georgia undertakes implementation of country’s domestic and foreign policy in accordance to law. The Government is accountable before the President and the Parliament of Georgia.” Hence, in practice the Government served as the advisory body to the President, who led and implemented country’s domestic and international policy. The new amendments specifically indicate that the Government is “the highest organ of executive government”, and that it is only accountable for the Parliament. Although the President is still permitted to request an extraordinary session of the Government, no longer is the President allowed to chair Government meetings.

Nowhere the shift to the Parliamentary republic is so evident, as in the new procedure of elections of the Prime Minister. The Government is considered dissolved as soon as the authority of newly elected Parliament is recognized. Yet the President may authorize the old government to continue the fulfillment of its functions until the new government is composed. Then the President appoints the Prime Minister based on the recommendation from the party which has won the majority of seats in the preceding parliamentary election. Within seven days after nomination, the candidate for the Prime Minister chooses the candidacies for the positions of Ministers. Afterward the person nominated for the Prime Minister presents the whole Government together with its Program of Action before the Parliament for the vote of confidence. In the previous version, the President selected the candidacy of the Prime Minister independently of the Parliament. The President himself then presented the Government composition for approval of the Parliament.

The above-mentioned changes are but a few recent amendments to the constitutional system of Georgia. Amendments of October 2010 have introduced important changes to all aspects of Georgia’s constitution, be it in fundamental rights, judiciary system or checks and balances between the three branches of government. All of these changes, only a few of which have been discussed here, could give plenty of food for thought to comparative constitutionalists, human rights scholars and political scientists alike.

–Anna Dolidze, JSD Candidate, Cornell Law School

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Published on November 27, 2010
Author:          Filed under: Anna Dolidze, Georgia, hp
 

What would happen if the U.S. repealed the 14th amendment?

So many constitutional issues came up in the context of the 2010 U.S. election that I’m just now summoning the energy to react to them. One issue was the provocative proposal by Senators Jon Kyl and Lindsay Graham (among others) to repeal the 14th amendment, or at least that part of the amendment that grants citizenship to all those born in the territory of the United States. The news cycle being what it is, the proposal didn’t gain more than a week of traction after its first splash and I haven’t heard much of it since. I don’t doubt, however, that we’ll hear it again once the next round of anti-immigrant fervor revs up (or even before then). The proposal may even be in the wish list of the new class of legislators, who knows. We know that John Boehner, the new Speaker of House, is on record as a strong supporter of repeal. In that event, it might be prudent to speculate about the consequences of a repeal of the 14th amendment.

Presumably, the preferred alternative of those who would repeal the right to jus soli citizenship would be some version of jus sanguinis policy, whereby birthright citizenship is conferred upon only those with some claim to U.S. lineage. But exactly what alternative policy Kyl, Graham, Boehner and friends have in mind is unclear.

One thing that we can observe (thanks to CCP data) is that, were the United States to move towards jus sanguinis, it would not find itself alone. Indeed, the trend in immigration law over the last two centuries in unmistakably towards jus sanguinis. At the beginning of the 20th century 60% of constitutions provided for birthright citizenship for the native-born; by 2000, 35% did.

One wonders, of course, what U.S. society would be like under a jus sanguinis policy? Assuming that immigration patterns continue and fertility rates within the immigrant population remain constant, one direct effect would seem to be a significant increase in the number of non-citizen residents and, more strikingly, an abrupt spike in the number of non-citizen minors. So, fewer naturalized citizens and fewer birthright citizens as a proportion of the immigrant population and in absolute terms. Of course, the assumptions of constant immigration and immigrant fertility are in question and, indeed, the very target for repeal advocates (call them repealers). Repealers would argue, we can assume, that immigration rates and immigrant-fertility rates would decrease once the citizenship incentive is removed. Or at least those repealers who are alarmed about the specter of “anchor babies” presumably think so.

Some social scientist will no doubt be able to answer these demographic questions if they haven’t been answered satisfactorily already. The analysis should be straightforward. Since a number of countries have shifted their citizenship policies to and from jus soli, one might gain some purchase on that question by looking at the relevant demographic data in those countries over time. I’m not sure whether population researchers have addressed that question or what their findings are, but if anyone can point me to some research, I would be obliged.

Apart from any demographic effects, it seems likely that a change in policy would have strong downstream effects on national unity across ethnic groups in the United States. As we know, the jus soli provision in the 14th amendment was adopted precisely to ensure that former slaves, and their children, could enjoy their full rights as citizens – certainly a necessary but insufficient step in achieving their full integration into American society. It’s seems possible that this measure has achieved stronger effects for immigrant groups that came later as well.

Indeed, in measures that John Sides and I have used to tap the concept of national unity in multiethnic states, the United States fares quite well. For example, blacks and latinos in the United States are as likely to say that they are “very proud” to be American as are whites. This stands in stark contrast to most multiethnic states in which minorities exhibit significantly less national attachment than do majority citizens. Could it be that jus soli has something to do with this? I think so. Sides and I are looking at data across a set of multi-ethnic states and have noticed some intriguing effects: on average, minority citizens in jus soli countries show “very proud” rates that are 10 points higher than those of minority citizens in jus sanguinis countries. These effects stand after controlling for a host of factors, including (crucially) the level of pride among majority citizens in the country.

These effects, if born out (Sides and I are still investigating), would make jus soli citizenship one of the most effective institutional solutions to ethnic disharmony that multiethnic states have at their disposal. Power sharing institutions like federalism and PR electoral systems are the most prescribed treatment for divided democracies. But with respect to indicators like the national attachment of minority citizens, power-sharing institutions like federalism and proportionally representative electoral systems do not even move the needle on national unity. Citizenship policies, which obviously focus directly on inclusion, may be a better drug.

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Published on November 19, 2010
Author:          Filed under: citizenship, consociational democracy, United States, Zachary Elkins
 

Sad News

The famous German legal scholar, Professor Winfried Brugger of the University of Heidelberg, died suddenly. Besides being a leading legal philosopher, and scholar of German constitutional law, he was one of Germany’s preeminent experts on American constitutional law. He also was a frequent visitor to Georgetown Law. Many faculty there and elsewhere thought the world of him. A short bio can be found here: http://en.wikipedia.org/wiki/Winfried_Brugger This has also been a rough year for Georgetown Law generally as they have experienced several other deaths among well loved faculty.

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Published on November 15, 2010
Author:          Filed under: hp, Mark Kende
 

New Constitution for the US?

The Revolutionary Communist Party has issued a new draft constitution for the Socialist Republic of North America. Only the preamble is available on the website; those interested in learning more will have to buy the book. The preamble itself, full of anachronistic language, is over 2700 words long, which would, according to a recent paper of mine on constitutional specificity, make it one of the longest preambles in the world if it were ever adopted. It would not be the longest preamble in history, however: that distinction belongs to the Yugoslav Constitution of 1974, which had a preamble of 6000 words, longer than 20% of all entire constitutions.

What is it with communists and preambles?

–TG

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Published on November 11, 2010
Author:          Filed under: constitutional change, hp, Tom Ginsburg, United States
 

New Constitution for the US?

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Published on November 11, 2010
Author:          Filed under: Uncategorized