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

Egypt’s New Chief Justice

Over the summer a new chief justice was appointed to the Supreme Constitutional Court of Egypt (the SCC). The appointment of Farouk Sultan was controversial in Egypt. Justice Sultan does not have a distinguished judicial background and is widely thought to lack independence from the executive . The appointment raises all sorts of interesting questions about the rule of law in Egypt and, more broadly about the types of pressure that can lead a government that had once experimented with limited judicial independence to apparently give up entirely on the ideal.

Since Egypt’s SCC is not best known court in the world, let me give some background on the Court, explain why the appointment of Justice Sultan has been so controversial and then muse upon the possible lessons to be drawn from this appointment.

Comparative constitutional scholars over the past five years have become interested in the phenomenon of judicial review in autocratic countries. (This is different from the study of judicial review in new democracies—a phenomenon that has in recent years also come to be examined by numerous scholars) The phenomenon of judicial review in an authoritarian state raises all sorts of interesting questions. Why would an autocratic leader or party create a court with the power to overturn legislation that the autocrat, in its wisdom, has decided to impose? One possible answer is that the autocrat does not expect the court to have any independence or power. But, in fact, in some countries, the courts actually do seem to have acted in an independent manner and have overturned laws that the autocrats, in their wisdom, enacted. Some of these courts seemed genuinely to annoy the executives who had caused them to be created. So what explains the executive’s willingness to create courts that had the power to rebel? What caused these courts actually to do so? And what have been the longer-term ramifications of their decision to cross the executive?

Those interested in these questions have often looked at the history of Egypt’s SCC for insight. A constitutional court was created in the 1970s by an autocratic government. Its structure was revised in 1980. In the 1980s and 90s, it began to embark on a path of liberal activism which was unwelcome to the executive. Over the past 10 years, it has come under sustained (and quite effective) pressure from Egypt’s authoritarian executive and the executive dominated legislature. The executive response to unwanted action by the Court ranged from the subtle (pressure on NGOs that generated the litigation that allowed the Court to act) to the not-so-subtle (appointing loyal outsiders to replace the retiring Chief Justice and then dramatically increasing the size of the court to pack it with unaggressive jurists). With these changes, the Court fairly quickly ceased to be an independent and activist institution. The SCC came to be a reliable ally of the executive and has suffered a diminution of prestige.

A number of scholars have done important work on the Court, and they have proposed slightly different answers to the question of why it was created, how it came for a time to exercise some independence and why the government has been so effective in supressing the Court. The debate that has emerged has been very productive and has helped us better understand the dynamics that may be at work when authoritarians create courts with a degree of judicial independence. Nathan Brown and Tamir Moustafa have done particularly thorough work, both in monographs and in articles, some of which are available on the Web. (For those who don’t have the time to engage with these bodies of work as completely as they deserve, I recently published an article in the Journal of Comparative Law. In it, I summarize some of the conclusions that they have drawn about the Court and add my own views about the Court’s creation and career.)

One question that has divided observers is whether the Court might reemerge as a liberal and independent voice. Those who harbored hopes it might have suggested out that the government’s attempts to rein in the SCC has had real costs for the Egyptian executive. I, for example, have argued that one of the reasons the Court was allowed occasionally to act independently was because it provided legitimacy for all government acts that the court did not strike down—and the overwhelming majority of acts fell into this category. Assuming this is correct, the decision to suppress the Court thus could only be made if the executive felt that the costs of judicial independence outweighed the benefits to legitimacy that the Court could provide. But the Egyptian government’s own behavior suggests that it has been concerned at least to some degree about the costs of suppression. Most important, even as it suppressed the SCC, Egypt continued to pay lip service to the ideal of judicial independence. I have nursed the hope that the pressures that led the Egyptian government publicly to speak in support of judicial independence might lead that government actually to rebuild it.

But the appointment of Farouk Sultan suggests that the government is no longer interested even in paying serious lip service to the ideal of an independent constitutional court. Nathan Brown is one of the few Western analysts to comment on the appointment of Farouk Sultan to be Chief Justice of the SCC. His post on the Abu Aardvark blog can be found at

http://lynch.foreignpolicy.com/posts/2009/07/21/why_did_the_egyptian_regime_appoint_a_new_chief_justice

It is worth a read. Brown explains clearly why Justice Sultan is viewed by so many Egyptians as wholly lacking in independence. The executive must know that a court led by Sultan will invariably be viewed with distrust. Yet the executive still went ahead and appointed him. Why would he do this? The Court has not made much, if any, trouble for the administration over the past five years. Why would President Mubarak wreak further damage on an institution that could provide him with some much-needed legitimacy?

As Brown notes in his post, the best possible explanation for the Sultan appointment lies in the fact that the Supreme Constitutional Court of Egypt is not only the sole judicial organ with the power of constitutional review. Its Chief Justice is also empowered to oversee presidential elections. Furthermore,the court might be the final arbiter of electoral disputes that involve constitutional claims. Egypt is scheduled soon to hold an election that will probably result in a transition of power from the long-ruling President Hosni Mubarak to somebody else. That somebody else may quite possibly be Mubarak’s son Gamal. It may be someone else. But the election is in any case likely to be controversial and, thus, potentially dangerous to the current elites. As recent elections in Iran and Afghanistan have shown us, elections can be a remarkable opportunity for an opposition to embarrass a ruling party, and the potential for embarrassment becomes much greater if, as in Afghanistan, the bodies entrusted with investigating evidence of electoral fraud are even marginally independent. Even barring a reversal of reported results, tribunals with a conscience can cast doubt on the degree to which the government is supported and, of course, on its behavior. President Mubarak apparently wants at the head of the Supreme Constitutional Court a sympathetic figure. Justice Sultan is surely not the only such figure available. But as Brown notes, Sultan may be the only one who will reach mandatory retirement age a few months after the elections. This means that if Sultan is Chief Justice, Mubarak’s successor will be able to appoint a new Chief Justice fully loyal to him–something that should enhance the stability of the fledgling regime.

If this is correct, and most Egyptians think it is, then the need to have a sympathetic figure overseeing the upcoming elections has driven the Egyptian executive to appoint a Chief Justice who is likely to weaken further the reputation and prestige of an already beleaguered Supreme Constitutional Court. In the process, the current government has forgone the opportunity to rebuild its own legitimacy and, one assumes, that of its successor.

This is interesting, if a bit depressing. It raises intriguing questions about constitutional design. As a matter of constitutional design is it a poor idea in autocracies or new democracies to make a stand-alone constitutional court the final arbiter of election disputes? Many courts have this responsibility, and perhaps it is a dangerous one. Whatever pressures a government may have to interfere with the operation of an independent court will be magnified if the court plays a dispositive role in electoral politics—with potentially sad consequences.

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North Korea’s Cryptic Reforms


The South Korean press has just published text from amendments to the North Korean Constitution adopted this April. The Constitution apparently promotes Kim Jong-Il from Dear Leader to Supreme Leader; it also beefs up the role of the National Defence Commission, chaired by Kim. Commentators also note new emphasis on Kim’s doctrine of “military first” and so assume that the reforms are designed to consolidate the role of the military in the wake of Kim’s stroke last year.

We know little about the timing of constitutional reforms in authoritarian countries generally, much less stalinist one. But the history of Soviet constitutions suggests correlation between constiutional change and leadership change. New leaders sought to put their imprint on the national constitution. The North Korean case may have more to do with consolidating power to assure the succession of Kim Jong-Un, the Supreme Leader’s third son and designated successor, in the event something happens to Kim Jong-Il.

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Published on September 29, 2009
Author:          Filed under: hp, North Korea, Tom Ginsburg
 

Constitutional Change in the Dominican Republic

The Dominican Republic is going through a lengthy and important constitution-making process that will probably conclude before the end of this year. Several interesting issues have been raised by this process. For instance, the very question about whether the final product is going to be a new Constitution or an amendment to the Constitution of 1966. On the one hand, the changes are so thorough that the final product will be very different from the previous constitution. On the other hand, the changes are being carried out following to the letter the requirements for constitutional reform established in the charter of 1966 (Arts. 116-118). How many changes to an existing constitution amount to actually creating a new constitution? The current Dominican Constitution entrenches in Art. 119 the form of government (“civil, republican, democratic, and representative”) and Art. 120 explicitly forbid any other way to amend the constitution and even its temporal suspension under any circumstances. Thus, one answer may be that as long as the changes are executed according to established procedures and they do not alter crucial features of the form of government, the Constitution will continue to be that originally enacted in 1966.

Beyond the philosophical question regarding the identity of a Constitution, the current constitution-making process in the Dominican Republic has produced other interesting debates. For instance, on the creation of a judicial council and its powers, on whether to create a constitutional chamber within the Supreme Court or rather to establish an autonomous Constitutional Tribunal, and on the inclusion of rights such as the right to life. Indeed, the fact that this process has not produced headlines in major newspapers around the world (unlike those in Bolivia and Ecuador) is in itself good news and a reminder that important constitutional overhauls can also happen without a crisis in the Latin American region. Current Dominican Republican president, Leonel Fernández, has until now averted the temptation to include demands for indefinite reelection and other conflictive issues that have created constitutional crises in other countries (most recently in Honduras). In future posts I will give account of some of the debates surrounding the constitutional change in the Dominican Republic.

JRF

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The Spanish Constitutional Court faces direct democracy

The Spanish Constitutional Court is about to render one of the most important decisions in its history. The case concerns the Statute of Autonomy of Catalonia, a region in Spain that has traditionally had a strong nationalist movement. Under the Spanish Constitution of 1978, Spain was divided into 17 Autonomous Communities. Each Community has its own Statute of Autonomy that specifies a particular level of self-government and establishes its basic governmental institutions. Catalonia obtained its Statute of Autonomy in 1979. After a long and politically controversial process, a new and more ambitious Statute was enacted in July 19, 2006 to replace the earlier one.
The new law was passed by both the Catalan Parliament (by a supermajority) and the Spanish Parliament. The Spanish Parliament was deeply divided about the new Statute, however. While the governing Socialist party and its allies voted in favor of the Statute that the Catalan Parliament had proposed (although important amendments were introduced) , the Partido Popular in the opposition was strongly against it. The opposition argued that the new Statute deeply offended the principle of equality of Spanish citizens and the principle of the unity of Spain. At a more technical level, the Partido Popular found many parts of the Statute to be contrary to the Spanish Constitution, which is the supreme law of the land.
After a majority of the Spanish Parliament voted in favor of the new Statute, a referendum was held in Catalonia on June 18, 2006. The turnout was not high for Spanish standards: only 48% of citizens with the right to vote participated. A large majority of those who did vote, however, approved of the Statute: 73% voted yes, while only 20 % voted no. (The rest were blank votes:5%, and null and void votes: 0,8%).
After the referendum, the Statute took legal effect. The Partido Popular then decided to bring a constitutional challenge against it. Under the Spanish Constitution, a qualified minority of the Spanish Parliament (50 deputies or 50 senators) are entitled to challenge statutes before the Constitutional Court. This is an abstract review procedure that allows the Court to strike down laws that are unconstitutional even if they have not yet been applied to any particular case.
The Court is aware that its decision is going to have an enormous political impact. The case raises many interesting issues of a foundational kind for a theory of constitutional democracy. Let me mention two of them.
First, it seems reasonable to request actors to be consistent when they make their claims. One of the features of deliberative democracy is that participants are expected to take arguments seriously before decisions are made. Arguments can only be taken seriously, however, if participants are prepared to apply them in a consistent fashion. Similarly, the constitutional court is supposed to be a “forum of principle” (to use Ronald Dworkin´s expression) where claims are to be supported by reasons that one is ready to apply in a coherent manner. Now, the problem with the Partido Popular´s challenge against the Catalan Statute is that a similar new Statute has been enacted for Andalusia (another region in Spain), this time with the political support of the Partido Popular. It just happens that several provisions of the Andalusian Statute are similar to some of the provisions of the Catalan Statute that have been attacked by the Partido Popular on constitutional grounds. Obviously, this unprincipled way of acting has been widely criticized in Catalonia -it seems to reflect some sort of anti-Catalan feeling. The problem, however, is whether the Court should pay attention to this inconsistency. Should the Court disregard the Partido Popular´s arguments, given this party´s inconsistent behaviour? If the Court holds the view that it should focus on the legal arguments, no matter how inconsistent the plaintiff has been, the question, then, is this: what will happen with the Andalusian provisions, if the Catalan provisions are struck down? Technically, under Spanish Constitutional law, only the Catalan provisions will be affected. The similar clauses of the Andalusian Statute will remain good law, unless someone challenges them. But who will challenge them? The only possibility will be for ordinary judges to send constitutional questions to the Constitutional Court in the context of ordinary cases. Whatever the final outcome of this process is, there is no doubt that the Partido Popular´s inconsistency has greatly complicated things.
The second interesting issue that has been debated is this: is it acceptable for the Constitutional Court to pass judgment on a law that has been approved not only by two democratic Parliaments (the Catalan and the Spanish Parliaments), but also by the people themselves in a referendum? There is no doubt under Spanish law that the Court is legally entitled to control the constitutionality of any Statute of Autonomy, even if a referendum has been held for its enactment. Is it “legitimate”, however, for the Court to have been given such great power? In a democracy, shouldn´t the people have the last say?
Some voices in Spain have been raised to question the Court´s legitimacy in a case like this. They sometimes refer, for comparative purposes, to the French Constitutional Court´s case-law, under which a law enacted through a procedure where the French people have directly participated is immune from judicial review. The Court, indeed, has held that it lacks authority to check such a law under the Constitution, since the people is sovereign. (That holding was first announced in a decision of November 6, 1962, and was reinforced in a decision of September 23, 1992). The problem, however, is that the French Court refers to a decision made by the sovereign people -the French-, while the Statute of Autonomy was not approved by the sovereign people -the Spanish people-, but by a fraction of the sovereign people -only Catalan citizens participated in the referendum. In the United States, for example, federal courts have sometimes struck down state laws (ordinary laws or constitutional amendments) that were approved by the citizens of that state in a referendum. I am sure that similar cases have arisen in other countries. (It would be interesting to gather some examples through this blog).
Maybe the question is not a matter of legitimacy but of deference. It is legitimate, one may say, for the Spanish Constitutional Court to examine the validity of the Catalan Statute, but it should do its job in a very deferential manner, given the democratic procedure that was followed to get it enacted. Is this view plausible?
These and other issues have generated big controversy in Spain. To make things more complex, some days ago (September 13, 2009), an informal referendum, organized by a private association, was held in a small Catalan village (Arenys de Munt). The issue was whether Catalonia should declare its independence from Spain. Although only 41% of voters participated, those who did were overwhelmingly in favor: 96%. This is totally unrepresentative of Catalan public opinion, for the majority of Catalans are against independence. Other informal referenda will be held in other villages in the next weeks or months, however, or so it seems. The nationalist parties in Catalonia (even the moderate and widely supported Convergència i Unió) seem to be sympathetic with the actors that have initiated this process. What should we make of these developments? Is a signal being sent to the Constitutional Court, in order to make clear that a decision that sharply limits the scope of self-government (as defined by the new Statute of Autonomy) will not be easily swallowed by Catalans? What will happen if the Court strikes down some parts of the Statute? The current government in Catalonia has had to state that it will comply with the decision, but there is a strong current of opinion in Catalan society that takes compliance to be unjustified. The legitimacy of the Court in a democratic system is thus in question.
I hope to keep you informed about these developments in my next posts.
Victor Ferreres Comella

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Published on September 23, 2009
Author:          Filed under: constitutional theory, hp, Spain, Victor Ferreres Comella
 

New Report on Transitional Justice


The Reports section of this website features a new entry on transitional justice provisions in constitutional texts (see the Special Issue Domains tab). Surprisingly, very few constitutions actually mention transitional justice in any detail. A small number provide for Commissions for Truth and Reconciliation (e.g. Burundi, Congo, Nepal) while others focus on potential criminal or civil liability for members of the previous regime. Some constitutions set up sepcial courts (such as the gacaca in Rwanda) or civil compensation tribunals (Malawi). More detail, including provisions from constitutional texts, is available in the report.

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Published on September 23, 2009
Author:          Filed under: hp, Tom Ginsburg, transitional justice
 

Guest Post: Matsudaira on Japan Election

The Democratic Party (DPJ) of Japan, Japan’s new ruling party, has decided to abolish its policy department. In a notice given to its Diet members by Ichiro Ozawa, the party’s director general, the DPJ has prohibited its Diet members from directly proposing bills, within the exception of lawmaking regarding highly political issues, such as electoral law. Instead, a new set of policy workshops will be held between the DPJ’s parliamentary corps and its ministers, through which the former can express its policy concerns to the latter. The DPJ cabinet members will take these views into account in the process of bill drafting.

The DPJ’s fear is that members of parliament will be captured by interest groups if they are able to propose bills by themselves, and that their role should be limited to reviewing and passing the bills proposed by the cabinet. The Japanese Constitution vests the sole legislative power in the Diet but allows the cabinet to propose bills. But the bureaucracy-dominated system formed in prewar constitutional practice took the position that the the power to propose bills falls within the scope of the executive power. Still, even under the LDP regime, parliament-proposed bills played an important role when Diet members decided to break partisan lines to make laws for which the cabinet had no concern. The DPJ’s new policy of cabinet centralism may raise questions about the separation of powers in a parliamentary government.

–Tokujin Matsudaira, Hitosubashi University

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Published on September 21, 2009
Author:          Filed under: Democratic Party of Japan, hp, Japan
 

Why constitutional theory needs to be comparative and international

What’s wrong with mainstream constitutional theory? Among other things, it is neither comparative nor international, at a time when other countries and the international legal regime are in need of constitutionalization and might actually benefit from some applied theory. Here’s a rundown of the argument, with thanks to both the Constitution in 2020 and Balkinization blogs for hosting it.

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Published on September 18, 2009
Author:          Filed under: constitutional theory, David Law, hp
 

Job posting: Somalia

Editors note: Comparativeconstitutions.org will on occasion post job and conference announcements, so long as they seem relevant to our mission. Below is a new announcement from NDI.

The National Democratic Institute for International Affairs (NDI) seeks to hire a lawyer or legislative staff professional with international law/legal experience to provide legal expertise in implementing the constitutional development components of its Somalia program. NDI is expanding its ongoing governance activities in support to Somalia’s legislative and executive branches as these transitional institutions develop their capacities. The position would be based in Nairobi, Kenya, with travel to Djibouti, Somalia and the broader region. This position is funded for one year with possible extension contingent upon availability of funding. The position would start October-November 2009.

NDI has been active in Somalia since late 2005 with programming supported by the United States Agency for International Development (USAID) and the Norwegian Ministry of Foreign Affairs aimed at building the core governance and parliamentary capacities of the Transitional Federal Parliament and the Transitional Federal Government. The Institute has worked with the Offices of the President and Prime Minister and the Speaker of Parliament, political and administrative heads of more than 30 ministries, and nearly 400 members of parliament (MPs) including two-dozen female MPs to develop governance and parliamentary capacities. With funding from USAID, the program will build the capacity of the Transitional Federal Institutions and independent commissions to develop constitutional-related legislation and engage the Somali public on constitutional issues. The program will focus on assisting Somalia’s Independent Federal Constitutional Commission (IFCC), Ministry of Constitutional Affairs and relevant parliamentary committees which are tasked with drafting a referendum law to support the broader participatory constitutional development process while working with a broad range of international actors. The program will also include civic education activities and public outreach including a public opinion research element intended to reflect the will of the populace and the unique political, social and economic circumstances of the region.

Primary Responsibilities:

§ Provide technical advice on the development of the referendum law, and help ensure that Somalis engage in a broad-based, informed dialogue on the political system to be adopted;

§ Provide technical advice on the constitutional process to members of the IFCC, Ministry of Constitutional Affairs, relevant parliamentary committees and the Constitutional Consortium as well as other key leaders and national actors;

§ Improve the technical capabilities of the IFCC in drafting sections of the constitution on human rights including women’s, minority, and community rights;

§ Provide legal input to the constitutional process, including suggestions on language and formulation and comments on the overall cohesiveness of constitutionally-related documents;

§ Provide legal assistance in drafting transitional legislation – as defined and mandated in the Transitional Federal Charter – including laws on the constitutional referendum;

§ Provide comparative studies and options related to human rights to assist local partners in deciding what is appropriate for the Somali context;

§ Develop manuals when needed to facilitate activities, workshops, training sessions, etc;

§ Help identify consultants – international and Somali – to assist with the program and help oversee their work and activities;

§ Build and maintain relationships with counterparts in the Constitution Consortium, key Somali officials, civil society actors and other stakeholder groups;

§ Help draft field reports that monitor and measure program performance, results and political developments; and

§ Ensure programmatic goals are achieved and reporting requirements are adhered to. Qualifications § Law Degree (JD, LLB, LLM, etc.) and background strongly preferred;

§ Minimum of twelve (12) years relevant work experience in international development, community organizing, political campaigns, organizational development and/or legislative affairs;

§ Living or working experience outside of the U.S. preferred especially in extremely challenging political environments including the Middle East or Africa and/or experience working in conflict or immediate post-conflict environments;

§ Knowledge of and comparative experience in constitutional development, civic participation and political processes;

§ Experience in implementing programs funded by USAID and other bi- and multi-lateral donors;

§ Proven ability to communicate skills and experience to others as a trainer, advisor, or consultant;

§ Excellent networking skills, as well as the ability to conduct professional political relationships;

§ Excellent interpersonal skills and cultural sensitivity to effectively interact with all levels of staff, U.S. and foreign government personnel, members of donor organizations, funders, and policy makers;

§ Excellent oral and written communications skills to effectively present information, respond to questions and negotiate;

§ Oral and written fluency in English required;

§ Conversational, foreign language ability applicable to region preferred;

§ Proven analytical skills for interpreting complex program and political issues and to think innovatively and introduce new concepts;

§ Ability to inspire and motivate staff where results are clearly beneficial;

§ Working knowledge of PC-based word processing and spreadsheet applications with seasoned budget and accounting skills; and

§ Ability and willingness to travel to regional locations, which are often remote and difficult to reach.

The Resident Program Director will work with the Resident Program Manager and Resident Program Officer as well as full- and part-time national staff and will be supported by NDI’s Nairobi and Washington-based staff. This position reports to the Resident Director in Nairobi. Salary range is commensurate with experience. Benefits and a housing allowance are provided. The position currently is an accompanied post. Please visit our website to apply online at http://www.ndi.org/ or for more information contact Suzy Foster, ext. 6337, sfoster@ndi.org.

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Published on September 17, 2009
Author:          Filed under: Job postings, Somalia, Tom Ginsburg
 

Guest Post on Constitutionalism in China: A Response to Tom


Tom has graciously invited me to respond to his recent posting on Chinese constitutionalism, and in particular to his reference to my forthcoming book with Stéphanie Balme. He may well regret it, because while he himself has described the book in most gracious terms, I must take exception with certain possible implications that could be inferred from his description. In doing so, I readily acknowledge using him as a straw-man. But despite their logical problems, straw-men can be very convenient framing devices. Tom’s description of China’s constitutional possibilities recapitulates – admittedly without necessarily endorsing – a particular way of looking at constitutions comparatively. It is a way that is common, if not ubiquitous, to the comparative constitutional analyses I see emanating from the US, and often from the West more generally. And it is a way that I strongly believe we have to begin freeing ourselves from.

At least insofar as his opening paragraph is concerned, Tom seems to be portraying China’s constitution in exceptionalist terms. He notes that it appears to be “serving programmatic and ideological rather than constitutionalist ends.” He also notes that “rather than providing for enforceable rules constraining government, the constitution is used either to bless changes that have already occurred or to announce new policies to be achieved in the future.”

These descriptions of the Chinese constitution are true enough. They are also quite common, indeed omnipresent, in American descriptions and critiques of China’s so-called “constitutional” system. Perhaps for this reason, I therefore read these descriptions as possibly implying that a more archetypical constitution actually works to serve other functionalities (which I will describe in more detail below)—that the Chinese constitution, to the extent it could be said to have a “constitution”, is in this regard exceptional.

(In fact, Tom does indeed draws similarities between China’s constitutional experiences and those of Mexico—similarities that I myself explored in 2002. But the reference to Mexico still evinces the possibility of a kind of essentialism, i.e., the possibility that the Chinese / Mexican experience is essentially only relevant to what we might call “the Global South”. But as I shall argue below, Tom could just as easily have related China’s constitutional development to that of the US, or to the West more generally—and I also argue that such a parallel would have actually been a much more useful referent, because it would have more effectively challenged the parochial assumptions that infect and corrupt our efforts to understand and evaluate the full diversity and possibilities of “constitutionalism” that manifest in human experience.)

It is this vision of Chinese (or perhaps Global Southern) exceptionalism that I strongly challenge. I argue that as described by Tom, China’s constitution is by no means exceptional, even by the standards and experiences of the Anglo-European “West.” As I shall describe below, the problem is that the particular comparative referents identified by Tom in his first paragraph are anachronistic. At best, they describe a mature constitutionals system, not an emergent one. And at least insofar as these emergent constitutional systems are concerned, it is the conditions that Tom describes in the context of the Chinese constitution that represent the norm, not those of his comparative referent.

That comparative referent sees constitutions as archetypically (1) juridified (i.e., constructed out of “enforceable rules”); (2) textualized (Tom’s entire description of China’s possible normative constitutional options derives solely from the text of the 1982 constitutional document); and (3) permanent. My strong suspicion is that these particular conditionalities are American in origin: they resonate quite strongly with what American’s like to glorify in their own constitution (nb. I’m an American). The problem is that these particular tropes only really began to attach themselves to American constitutional consciousness in the 1880 (see Michael Kammen’s The Machine that Would Go of Itself), about the same time as American constitution was ascending to its present status as a virtually religious document (representing what we might call a “mature” state of constitutionalism). But as applied backwards (as they too often are), to the founding, these tropes are largely mythological. As well described by Gordon Wood in The Radicalism of the American Revolution, the American constitution during the first three or four generations was in fact very ideological (see, e.g., Federalists vs. Anti-Federalists), very programmatic (Federalism was itself very much a kind of conservative political program), and even very fluid and responsive to leadership change (see especially the emergence of “Jacksonian Democracy”). Just like China’s present constitution.

Of course, if all one looks at is the text of the 1787 constitutional document (and the Federalist Papers), one does not see any of this—hence the lasting success of the historical mythologizing of the 1880. This is the “textualization” part of Tom’s comparative referent. And like the others, textualization has been a defining feature of American constitutional pride since the 1880s. But in fact, the constitutional text was probably the least important component of our early constitutionalism. It is true that the constitutional text did not change much in the first 80 years of our constitutional history. But our constitutional nevertheless effectively transformed itself during the first 35 years of its existence. The constitutionalism of Jacksonian democracy was not only nothing like that which the Framers sought to enshrine, it was in many way exactly what they had sought to avoid in the drafting of the 1787 text. The fact that the same text could accommodate such radically opposed constitutional visions is itself a testament to its irrelevance as a juridical source of authority. This hypothesis is confirmed in the study by Michael Kammen referenced above, which argues that prior to the Civil War, the constitutional document of 1787 functioned primarily as a symbol for the new American state rather than as a juridified construction of that state.

Nor is the experience of the American founding unique in this regard. A similar story could be told about the emergence of modern Western constitutionalism in England in the 1730s; about its role in the establishment of France’s post-Revolutionary state; and about its radicalization in England in response to early industrialization. Together with the American founding, these represent the first four incidence of modern Western constitutionalism. And in none of them, did the emergent constitutions evince textuality, jurification, or permanence / stability. Insofar as constitutional emergence is concerned, China’s experience actually represents the norm. And what I think of as “the American trope”, i.e., that trope referenced by Tom in his comparative description of China’s constitution, is what is exceptional—if not actually mythological.

I write this because as someone who has spent a lot of time exploring what one might call comparative constitutional development, I am distressed by the degree to which comparative constitutional analyses continue to draw exclusively and uncritically from these canonical and often very idealized tropes that Americans developed and continue to use primarily to sanctify their own constitutional system. As comparative models, these tropes completely obscure the diversity of constitutional experiences and possibilities found in the world, and even in just the “West.” In fact, they obscure the diversity of important constitutional experiences found in the United States. They thereby create images of exceptionalism, and deviation, and often of simple and inevitable failure, where such do not actually exist. And in doing so, it greatly distorts our understanding of the full range of human “constitutional” possibilities that exist—especially insofar as those of the Global South are concerned, but also insofar as our own “Western” and even American constitutional experiences are concerned.

In this regard, I must confess that I find statements like Don Clarke’s purported description of China’s constitution as “the least important document in the Chinese legal system” quite depressing. I’m not certain I understand what Don exactly means by this, but reading him charitably, I suspect that he means that insofar as China’s positive legal corpus is concerned, the constitution is much less likely to be formally cited than are (other) positive legal instruments. And this is certainly true—as juridical text, China’s 1982 Constitution is non-justiciable. And political actors often act in ways that deviate from its textual commands, particularly insofar as protections of political rights are concerned.

But the idea of a “legal system” can encompass far more than its juridically-authoritative texts (see, e.g., Christine Parker et al.’s Regulating Law). And “importance” (and effect) can resonate in affects that escape formal juridical capture (see, e.g., the “Dreyfus affair” and the invention of laïcité in France). And seen in this broader light, China’s constitution, including its constitutional text, is in fact clearly very important—as evinced, for example, by the extraordinary willingness of a surprisingly large number ordinary Chinese citizens to risk their livelihood and their freedom to promote its particular relevance; and – quite frankly – also by the Chinese government’s own fears of such discussions.

(By contrast, the Chinese government has never found need to seize and detain critics of it’s Securities Law, of which there have been many; nor has anybody shown any willingness to go to jail over issues of its interpretation—this by itself suggests to me that insofar as the Chinese themselves are concerned, the constitution is a more important component of China’s “legal system” than is the Securities Law.)

The problem with Don’s claim, therefore, is that regardless of what he actually meant by it, it will inevitably be read, at least in the US, as confirming our received impressions that “constitutionalism” – meaning the concerns, behaviors, and normative influences associated with the emergence of what we today think of as “Western” ideas constitutionalism in England, the US, and France in the later part of the 18th century – is not and will never be a meaningful component of China’s present political system. This impression is the product of the mythological tropes that I have described above—the ones that Americans developed in the 1880s in order to celebrate and establish the secular-divine superiority of their own constitutional-political system. Don’s description, in other words, will invariably be read as confirming that China’s constitutional experience, if it can be called that, is unique; and is it not of a kind shared by American constitutional understandings.

But this is it most assuredly wrong. The deficiencies that Don appears to be referencing are deficiencies that are common to emergent constitutional systems everywhere, including those that would eventually found the countries that today comprise the developed “West”, and including those of the US.

In fact, the world, including the less comfortable parts of it, has a lot to teach Americans about the nature and possibilities of human constitutionalism. The proper response to discoveries of incidents of apparent constitutionalism in unexpected places — such as in China, or more recently, in Iran – should therefore be to cause us to critically reevaluate our own understandings of what is constitutionally possible, and hence of what is constitutionally “important,” particularly insofar as emergent constitutionalism is concerned. Far too frequently, however, as is particularly the case with China, our response is simply to dismiss or essentialize such incidents because they fail to conform to our own constitutional litergies—a practice that David Sciulli’s Theory of Societal Constitutionalism has criticized, specifically in the context of American constitutional analysis, as the “fallacy of exhausted possibilities.” (A classic example of this is Fareed Zakaria’s famous disquisition on what he called “illiberal democracy”.) I can’t speak for Stéphanie, but this was my ultimate purpose in putting together this book—in my dreams, it would cause people not simply or even primarily to begin rethinking the possibilities of constitutionalism in China; but more importantly, to begin rethinking the human possibilities of constitutionalism itself.

(In the real world, however, I just hope it will get me a few citations.)

Mike Dowdle

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Published on September 12, 2009
Author:          Filed under: China, hp
 

Whither Chinese Constitutionalism in the 21st Century?


China’s constitution has been described (by Professor Donald Clarke) as the least important document in the Chinese legal system. But constitutional discourse is clearly becoming more important in Chinese law politics, as highlighted by the recent high profile arrest and subsequent release of Xu Zhiyong, a lawyer associated with the Open Constitution Initiative. Like other communist documents, the Chinese constitution is usually described as serving programmatic and ideological rather than constitutionalist ends. That is, rather than providing for enforceable rules constraining government, the constitution is used either to bless changes that have already occurred or to announce new policies to be achieved in the future. One frequent pattern, found in the former Soviet Union and in China until 1982, was that new constitutions would be adopted with changes in leadership, as new leaders sought to announce their presence.

The 1982 Constitution, adopted shortly after Deng Xiaoping consolidated power and launched China’s modernization program, is an interesting document in this regard. Law played a central role in Deng’s thinking as he sought to provide greater institutional order to underpin China’s development. The 1982 Constitution de-emphasizes the Chinese Communist Party and nominally places the Constitution above all organizations in the country. Post-Deng leaders have modified the constitution through amendment, rather than replacement, preserving ideological continuity with Deng. Amendments have been used to mark ideological developments. For example, in 1988, the Constitution was revised to make reference to a privatesector to complement the “socialist public economy.” The 1993 amendments added the phrase “socialism with Chinese characteristics” to the preamble and introduced the “socialist market economy,” thus incorporating Deng Xiaoping’s formula into the document. In 1999, a reference to the recently deceased Deng was incorporated into the preamble. In 2004, the Constitution was amended to guarantee private property rights and provide for compensation for expropriated land, an important signal for both foreign investors and China’s own market sector. Human rights are also included, reflecting the Party’s ideological pushback against critics. In addition, in keeping with the tradition of each Chinese leader’s leaving his mark on the Constitution, Jiang Zemin’s theory of the Three Represents was introduced into the preamble. This provided ideological coverage for inclusion of the business class (“advanced productive forces”). It seems highly likely that a future amendment will incorporate the latest formula of the Harmonious Society that is the mark of current leaders, Hu Jintao and Wen Jiabao.

Our forthcoming book, The Endurance of National Constitutions, speculates that China’s 1982 Constitution might ultimately play a role not unlike that of Mexico’s 1917 Constitution. Mexico under the PRI regime had a constitution that embodied ideological continuity, but not constitutionalism. Over the long period of PRI rule, however, the constitution was frequently amended to co-opt and include new social forces as they arose. This led to gradually increasing congruence between the formal promises of the text and actual social practice. Eventually, when Mexico democratized in the late 1990s, the constitution was preserved and now operates as a more significant constraint on political actors, with both left and right wing parties relying on it in particular instances. The story shows the gradually increasing importance of a constitution within an authoritarian regime, under conditions in which there is a need for ideological continuity. To be sure, the analogy between China and Mexico is speculative, and there are important structural and ideological differences between the CCP and the PRI. But the Mexico outcome is at least one possible model for China.

More on the Chinese Constitution can be found in an excellent forthcoming book edited by Stephanie Balme and Michael Dowdle. No doubt we’ll have more to say about the topic when that book hits the shelves.

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Published on September 9, 2009
Author:          Filed under: China, hp, Mexico, Tom Ginsburg