Blog of the International Journal of Constitutional Law

Kenyan Constitution and Chicago Troika

Here is a great nugget from a recent edition of news at the University of Chicago. It includes some insights into what valuable work is being carried out by other members of this blog. It starts with some biographical material on Tom:

“Ginsburg first developed an interest in constitutions through his work at the Asia Foundation in the early 1990s, when he was sent to Mongolia as a young program officer to organize assistance in writing a new constitution.

Twenty years later, it was a natural fit when the Rome-based International Development Law Organization approached Ginsburg’s group to convene a group of American constitutional scholars to provide feedback throughout the drafting process for Kenya’s constitution.

Kenya, once a poster child for success in the developing world, had in recent years descended into tribal infighting and bloodshed. The new constitution was intended as a stabilizing influence among rival groups.

From December 2009 through March 2010, Ginsburg and his colleagues, including UChicago assistant professors Rosalind Dixon and Aziz Huq, reviewed three rounds of drafts and offered suggestions. They argued against the Kenyans’ original intention to divide power between a president and prime minister. Such a structure could enshrine existing political divisions and prevent the country from taking action on pressing problems. The drafters ultimately chose a pure presidential model.

On Aug. 4, after years of unsuccessful attempts at change, Kenya’s citizens ratified the new constitution.”

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Published on September 23, 2010
Author:          Filed under: hp, Mark Kende

New USIP volume on constitution-making

Those interested in constitutional design should take a look at the new volume from the US Institue of Peace, Framing the State in Times of Transition: Case Studies in Constitution Making. The volume features 19 case studies of constitution-making, including well-known cases like Afghanistan and Iraq, and more obscure cases ranging from Albania to Zimbabwe. Introductory chapters on the role of international law and the right to public participation, and a thorough analytic conclusion by editor Laurel Miller, bracket the volume. The volume is full of fascinating detail, and greatly expands our knowledge of constitutional design. Highly recommended!

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Published on September 20, 2010
Author:          Filed under: constitutional politics, hp, Tom Ginsburg

Turkey’s reforms

I’d be very interested to learn more from any readers in Turkey about the passage of the constitutional amendments in yesterday’s referendum.

My thumbnail view is that Turkey was ahead of the game in 1982 when it adopted a “post-political” constitution, in which democratic institutions were constrained by a series of guardian institutions, including the constitutional court, the national security council, the higher education council, and, until the accession of Abdullah Gul, the presidency. Many other countries, especially in the 1990s, adopted such institutions that reflected a distrust of majoritarian processes.

In Turkey, however, the pendulum is now swinging the other way. These constitutional amendments will increase the control of political institutions, including the president and parliament, over the judicial council and constitutional court. To some degree this is an inevitable reaction to a judiciary that has been heavily involved in policing the political process. As a co-author and I have argued in a paper on judicial councils, the judicialization of politics is followed by the politicization of the judiciary.

Less advisably, the amendments also repeal immunity for the military for the 1980 coup, which seems like an issue better left for the history books than for the courts. Reactions from those more informed than I are most welcome.

–Tom Ginsburg

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Published on September 13, 2010
Author:          Filed under: hp, referenda, Tom Ginsburg, Turkey

Awards, New Books, and a Book Series

Several recent awards, new books, and a new book series on comparative constitutional law & policy might be of interest to this blog’s readers. First, Sanford Levinson, one of the most influential, prolific and thoughtful scholars of American constitutional law, won the APSA’s Law & Courts Section Lifetime Achievement Award. Professor Levinson’s work on constitutional design in the United States and elsewhere is well known to many of our readers. His support of generations of scholars, young and younger, has been second to none. My recently retired colleague Richard Simeon, a prominent scholar of federalism, has won the APSA’s Daniel Elazar Distinguished Federalism Scholar Award. Meanwhile, The Endurance of National Constitutions (Cambridge University Press, 2009) by our fellow bloggers Zach Elkins and Tom Ginsburg (with James Melton) won the APSA’s Human Rights and Democratization section 2009 Best Book Award.

Several new books are certain to be of interest to this blog’s readers. Vicki Jackson’s Constitutional Engagement in a Transnational Era (Oxford University Press, 2010) was published a few months ago, and provides a comprehensive, thought-provoking take on constitutional law in a globalized world. Gary Jacobsohn’s Constitutional Identity (Harvard University Press, 2010) has just come out, and addresses the problem of constitutional disharmony or organic mismatch between constitutional texts, aspirations and realities. And, yes, my very own new book, Constitutional Theocracy (Harvard University Press, 2010) has just hit the virtual book stands. It deals with the intersection of constitutional law and sacred texts in the non-secular world. Each of these books deserves a separate blog post, which I intend to post in the coming weeks.

Finally, this would be a good opportunity to bring to our readers’ attention a new book series on comparative constitutional law & policy that Zach Elkins, Tom Ginsburg, and myself are editing under the auspices of Cambridge University Press. We would be happy to consider original, high quality monographs as well as timely, thematically coherent edited collections for possible inclusion in this series, which we hope would emerge as fourm for influential texts in the field.


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Published on September 12, 2010
Author:          Filed under: hp; ran hirschl

The Constitutionality of Nigeria’s Recent Constitutional Amendment

A number of aggrieved parties including the Attorney General and Minister of Justice of the Federal Republic of Nigeria have filed suits in Nigerian courts seeking an interpretation of the constitutionality of the recent amendment of the 1999 Constitution of the Federal Republic of Nigeria. Nigeria’s National Assembly recently declared that the recent constitutional amendment was concluded when two thirds of Nigeria’s 36 States passed constitutional amendments as harmonized by the two houses of the National Assembly. It is contended by the parties that the President should assent to the Constitution Amendment Bill because the 1999 Constitution requires an Act of the National Assembly for amendments to the constitution. In this regard it is pointed out that the Constitution provides that proposed legislation by the National Assembly can only become law by presidential assent or the overriding veto of the National Assembly if the President withholds his assent. Nigeria’s National Assembly contends on the other hand that the process of amendment as detailed in the Constitution does not require presidential assent and is complete when two thirds of Nigerian states concur. This controversy is not surprising given the widespread condemnation of the amendment process because it is alleged that the process does not address systemic and fundamental issues of the Nigerian State.

It was widely thought that Nigeria’s constitutional amendment should have addressed issues such as the protection of socio-economic rights and the right to administrative justice; the limitation of presidential powers; redressing the imbalance in the manner in which power is shared by the three levels of government; providing better access to courts to challenge the constitutionality of executive and legislative acts including a more liberal standing rule and the strengthening of existing national institutions designed to support and promote good governance.

The recent amendments to the constitution address issues such as the eligibility of candidates for different offices; independent candidacy; political parties; the jurisdiction and powers of electoral tribunals; the manner of succession when the President or the Governor of a state is outside the country. It is therefore believed that these issues relate to electoral hegemony and are self serving for Nigerian legislators.

–Enyinna Nwuache
ANCL (African Network of Constitutional Lawyers)

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Published on September 10, 2010
Author:          Filed under: ANCL, Enyinna Nwuache, hp, Nigeria

Sri Lanka and Executive Self Dealing

The Sri Lankan parliament voted on Wednesday to approve the 18th amendment to their constitution, which strikes down the 2-term limit on presidential re-election. We’ve all seen this movie before. Critics responded by characterizing the amendment as a step towards authoritarianism, since its beneficiary is the sitting president, Mahinda Rajapakse. The President’s spokesman, right on cue, announced that the amendment would give the president time to continue his good work on economic development and ethnic reconciliation. The housing minister’s line was even more telling: “we’re not going in for dictatorship. If the president wanted to be a dictator, he already has enough powers to do so.”

Democrats (small d) will be conflicted over this move. On the one hand, the constitution was amended according to the stipulated procedure — nothing wrong with that. Think of the reasonably happy cases of Cardoso or Menem. On the other hand, the revision smacks of casuismo, as the Brazilians say, which I’ll translate roughly as self dealing. There is something unseemly about amending higher law to further the career of a single leader. Democracy, so the saying goes, should be about laws, not men.

Perhaps one’s views of this practice come down to one’s taste for casuismo, which for me is a decidedly bitter one.

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Published on September 10, 2010
Author:          Filed under: hp, sri lanka, term limits, Zachary Elkins

The Evolution and Ideology of Global Constitutionalism

Mila Versteeg and I have just posted to SSRN a paper entitled “The Evolution and Ideology of Global Constitutionalism” that may be of interest to readers of this blog. In this paper, we analyze an original data set that spans the rights-related content of all national constitutions over the last six decades. Our analysis confirms the existence of several global constitutional trends. These include the phenomenon of rights creep, wherein constitutions tend to contain an increasing number of rights over time, and the growth of generic rights constitutionalism, wherein an increasing proportion of the world’s constitutions shares an increasing number of rights in common.

Perhaps our most striking discovery, however, is that 90% of all variation in the rights-related content of the world’s constitutions can be explained as a function of just two variables. Both of these variables are underlying traits of a constitution that can be measured quantitatively. The first variable is the comprehensiveness of a constitution, which refers simply to the tendency of a constitution to contain a greater or lesser number of rights provisions. The second variable is the underlying ideological character of the constitution. We find empirically that the world’s constitutions can be arrayed along a single ideological dimension. At one end of the spectrum, some constitutions can be characterized as relatively libertarian, in the sense that they epitomize a common law constitutional tradition of negative liberty and, more specifically, judicial protection from detention or bodily harm at the hands of the state. At the other end of the spectrum, by contrast, some constitutions are more statist in character: they both presuppose and enshrine a far-reaching role for the state in all aspects of life by equipping the state with a broad range of both powers and responsibilities.

For each constitution in our data, we calculate a numerical score that measures its position on this ideological spectrum. Using these scores, we are able, in effect, to trace the ideological evolution of global constitutionalism. We show that the world’s constitutions are increasingly dividing themselves into two distinct families–one libertarian in character, the other statist. Within each family, constitutions are becoming increasingly similar to one another, but the families themselves are becoming increasingly distinct from one another. The dynamics of constitutional evolution, in other words, involve a combination of ideological convergence and ideological polarization. We conclude the paper with a call for further research in the area of empirical constitutional studies.

You can click here to download the full paper.

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Moldova fails to fix political system

It appears that Sunday’s referendum in Moldova failed to generate enough voter interest to fix the country’s political impasse. Europe’s smallest country has been unable to elect a president for a year, and now faces parliamentary dissolution and new elections.

The story begins in 2000, when the 1994 Constitution was amended to replace the directly elected presidency with one elected by a three-fifths vote of the parliament. (The amendments also seem to have raised the age of eligibility to 40 from 35.) Unfortunately, the country’s political deadlock has prevented any candidate from receiving the necessary supermajority in parliament. Sunday’s referendum was designed to approve constitutional amendments to end the decade-long experiment with an indirectly elected presidency and return to direct public election. (There were other issues including confirming Romanian as an official language.) But voter turnout of 30% failed to meet the requirement of one-third of eligible voters. Analysts attribute the low turnout to apathy and a boycott by the opposition communists.

While no doubt a source of great frustration for the government, the failure perversely highlights one of the virtues of the semi-presidential system. It has long been argued that semi-presidentialism resembles presidentialism when the government is united, and parliamentarism when the government is divided. In the present instance, with a caretaker president, power naturally flows to the parliament and government. This may not have been the ideal of the constitutional drafters but still will leave the country able to function, assuming that the parliamentary elections produce a clear government mandate.


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Published on September 6, 2010
Author:          Filed under: hp, Moldova, Tom Ginsburg

Freedom of Expression Endangered in South Africa

The post-Apartheid South African press and media have traditionally been vigorous. They have frequently criticized the government as well as opposition groups. The press and media there can sometimes be a bit sensationalistic (hardly unique to South Africa of course). But it’s fair to say that the country’s press freedom has been good overall. This may be changing.

The ANC government of President Zuma has proposed a Protection of Information Bill. It would apparently allow government agency heads to categorize certain types of information as in the “national interest” and impose penalties on publishers or others who disclose the material. The ANC has also pushed to establish a tribunal that would monitor the print media. There’s little doubt that the ANC actions come from annoyance over reports criticizing Zuma and the government. But this is not the right approach. One reporter was even arrested for fraud shortly after publishing an article criticizing the national police chief. The New York Times has a good summary of developments:

The South African based blog Constitutionally Speaking has even more details: Fortunately, the leading South African trade union group (COSATU) has expressed reservations and is an important political entity connected to the ANC. It would certainly be ironic if the party that helped lead liberation in South Africa imposed such draconian restrictions. Hopefully, it won’t happen.

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

USIP Studies of Constitution-Making


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Published on September 2, 2010
Author:          Filed under: Uncategorized