Blog of the International Journal of Constitutional Law

What is legality worth in an Egyptian transition?: Some initial thoughts.

In some earlier posts I have described what appears to be a paradoxical state of affairs in Egypt: Given recent amendments to the Constitution, trying to oust the NDP regime in a formally constitutional manner will delay Mubarak’s formal retirement as head of state for a considerable period and might require significant concessions to current NDP elites. Nevertheless, some leading Egyptians with impeccable credentials as liberals, democrats and opponents of the regime have acted as if a legal transition is preferable to an extra-legal one. How can we understand this? Don’t the supporters of legality realize there is something distasteful about planning a transition according to some self-serving rules that the sclerotic elite you are trying to remove wrote during a period when they had you under their thumb? Don’t they see that negotiating with regime elites to ensure that they follow all the steps necessary legally to dislodge themselves may have unpleasant ongoing consequences? For example, showing that you actually care about legality may give that elite leverage to negotiate ongoing immunities or influence.

In fact, the leading Egyptian figures are not crazy to think that legality has some real value for liberal democrats in the current Egyptian transition—though of course there is room to debate exactly how much value it has. The adoption of the current constitution represented a symbolic step towards the rule of law in Egypt. Dismantling it would represent, in some ways, a symbolic step away. In the Egyptian context, taking such a symbolic step away from the rule of law may have some unquantifiable, but real, costs, and one can understand why some Egyptians feel establishing the rule of law is, under some circumstances, worth paying for. Let me explain:

The current Egyptian constitution was enacted in 1971. It was officially named “the Permanent Constitution.” Its ratification was supposed symbolically to represent the end the era of “revolutionary” constitutions that were issued with dreary regularity during the Nasser era. These constitutions could be changed by executive (i.e. army) fiat and were. Nathan Brown in his wonderful book Constitutions in a Non-Constitutional World has described how authoritarian regimes in the Arab world often drafted constitutions for non-liberal purposes, but in this and other works he has also discussed the process by which states with such constitutions have built up a cultures of thin (sometimes very thin) legality that have the ability to evolve into more robustly constitutionalist regimes (i.e., ones that respect not only legality, but democracy and liberal values as well.) A considerable amount of scholarship not just by Brown, but by others as well, has illustrated directly or indirectly, that Egypt has followed this pattern. Works by Tamir Moustafa, Bruce Rutherford, James Rosberg and me have suggested that the Egyptian government and people, even the mainstream Islamist opposition, have fallen into the habit of following the formal dictates of their (often illiberal) laws.

While most have seen this glass as 4/5th empty, we forget that it is 1/5 full. The Egyptian executive since 1971 has in interesting ways acted largely within the range of (admittedly enormous) powers formally granted by the Constitution. When the Constitution constrained presidents too much, they generally did use the relatively cumbersome process that was required to amend the Constitution. When judicial institutions held that the law prevented presidents from doing something they wanted to do, they usually used legal procedures available to them to interfere. Or they made a point to follow legal procedures to change the law. Many observers today focus on the fact that the courts have not been enforcing (and the government has not been obeying) a substantively liberal body of law. But we might be wrong to draw from this conclusion that the courts and the culture of legality is valueless.

Courts and a culture of legality are a form of dual-use technology: what can be used for bad can be used for good. The executive had too much power and the executive could (and did) establish a rule by law that oppressed the people. It did so, however, in a way that allowed people to see how an effective liberal legal system might work. Legal argumentation was permitted, within certain bounds. Litigation was even, on occasion, effective at ameliorating the lives of the people (even if that only meant forcing the government to develop a slightly different, formally legal mode of achieving an oppressive result). In the process, a surprisingly robust interest in law seems to have evolved among the Egyptian populace, including among Islamists.

Given the concerns that are often voiced about the possible rise of the Muslim Brotherhood in a democratic Egypt and about the impact that the Muslim Brotherhood would have on the rule of law, one does need to stress that leading Islamist groups have regularly chosen to contest government policies within the confines of the law—expending considerable time, effort and political capital not in the service of violence, but rather to litigate and agitate, within the letter of the law, for political reform. In the process, Islamists, like other Egyptians, have grown comfortable with judicial institutions, and apparently have come to respect them for their professionalism.

The commitment to contesting the government within legal limits might seem surprising, given the limited results that can be achieved. This commitment is impressive, and it should not be disregarded lightly. The impulse to preserve the respect for legality should be particularly strong among those who wish to expand the legal restraints to which the government is subject in the future. Ultimately, it is much easier to thicken the thin rule of law than it is to create a thick rule of law from scratch.

There is a second, more pragmatic and arguably cynical argument in favor of respecting legality: The price of legal transition is negotiation and compromise with the NDP. It is certainly distasteful to pay this price and it may limit to some extent the flexibility of the new government going forward. At the same time, negotiating as required by the Constitution may in a very real sense buy not just legality, but also peace and stability. The NDP’s power base is ultimately the armed forces, including the powerful intelligence services. The armed forces are themselves not homogenous. The different factions within the armed forces need time to decide what they want and what they can live with—a decision that can and should be made on the understanding that the answers they reach may determine the amount of foreign military aid that they get to play with. Allowing leaders of the NDP to negotiate the terms of their exit is, effectively, negotiating with the army the terms of their returning to the barracks and supporting (or at least not undermining) an incoming regime. This is a smart negotiation in which to engage. Whatever happens over the next few weeks, Egypt still faces severe economic and political challenges. To deal with them, a government will need all the good will and support it can get from all quarters. Neither the Egyptians nor their many well-wishers and friends should want the result of this uprising to be a country in which a huge and powerful army has unwillingly been pushed aside, mistrusts the fledgling democratic regime and actively works behind the scenes at cross purposes with political leaders. Surely, one Pakistan is enough.

In short, then, there are both idealistic and realpolitik-y reasons to try and preserve legality. For those reasons, if the Constitution “must go,” then, all things being equal, it would be better to see it go on its own terms. Indeed, one might even be willing to pay some price to achieve legality in one’s transition. Up to a point, a reasonable person might be willing, in exchange for legality, to slow the process of transition, and also to allow members of the current regime to extract some concessions for their “retirement” from politics. Up to a point . . .

No one believes that the value of legality is limitless. The process of transition must not be too slow, and the concessions demanded by the outgoing Egyptian regime elites must not be too high. Regime elites have craftily drafted a constitution that gives them more power over their departure than most people think fair. They should be grateful that people are willing to negotiate under these circumstances. And they should be encouraged to negotiate in good faith quickly to “close the deal” that will allow a more democratic and liberal Egypt to emerge. It is in their best interest. If there is delay or further violence, the value of legality relative to quick change may diminish in the eyes both of their frustrated people and of the international community and with it the leverage of the current elites.

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Published on February 5, 2011
Author:          Filed under: Clark Lombardi, Egypt, hp, rule by law, Supreme Constitutional Court of Egypt

The Price of Legality in an Egyptian Transition, Part II–some other voices weigh in

As I noted in my last post, under the current constitutional scheme in Egypt, elites in the ruling National Democratic Party can hold hostage the “legality” of any quick regime change.

To recap: Under the current constitution, as soon as the president is forced out, elections must be held within 2 months and must be held in a manner that favors the election of someone associated with the NDP. According to the terms of the constitution, the Constitution cannot be amended within 2 months. The only way to remove the NDP apparatus is through a cumbersome and carefully orchestrated process: One must keep the President on, formally, as the head of state (although, if he is deemed “temporarily” disabled, actual power can be wielded by his vice president.) The President or his stand-in must then be convinced to agree to Constitutional and legal changes that would permit a free and fair election. In my earlier post I may actually have understated the care with which the transition must occur. One thing I did not stress, but should have, is that the amendments would ideally (and perhaps as a practical matter might have to be approved) by a new legislature. For this to occur, the President must be convinced to dissolve the legislature which will bring about the election of a new legislature within 60 days. The President himself must do this, not the stand-in, so if one anticipates President Mubarak resigning effective power under the legal fiction that he is “temporarily disabled” the parliament must be dissolved before the beginning of the “temporary disability.” Would the the President and/or his stand-in be willing to go through this elaborate process of divesting themselves from power. If so, one can be sure that they will demand concessions before they do that—possibly concessions that provide immunities or continuing influence for current regime elites.

So, should anyone feel any obligation to ensure that a transition in Egypt is formally legal? Some seem to think not. My wife tells me that she saw on the BBC website this week, a picture of an Egyptian protestor holding a sign that says in English: ‘The Constitution Must Go.’ One understands the sentiment. Surely, there is something distasteful about planning a transition according to some self-serving rules that the sclerotic elite you are trying to remove wrote during a period when they had you under their thumb. That is particularly true if, as here, the provisions may allow members of that elite to negotiate ongoing immunities and/or continuing influence. Nevertheless, if one takes a step back there may be reasons that counsel against a hasty decision to force regime change through formally illegal channels.

Thus, Harvard Professor Tarek Massoud today published an op-ed in the New York Times that proposed a method that would preserve legality–in a manner analogous to the one I proposed in my post.

Similarly, yesterday, a group of leading Egyptian Democracy activists issued a statement in al-Shuruq calling for a transition that seems also to be trying to propose a path to transition that would ensure that transition occurs in a “legal” mode. For the paper’s Arabic website, click here. . For a translation posted by the Carnegie Corporation click here.

Reading, the activists proposal is illuminating, if only to illustrate how complex the process of transitioning in a legal mode would have to be: As it turns out, the activists’ proposal may not actually satisfy all the requirements to make it fully legal. A short while ago Tarek Massoud pointed out in an e-mail to some people watching the situation that this proposal would still violate article 82 because it has the acting president dissolving parliament and changing the constitution. Nevertheless, it is quite possible that this is an oversight The “Poison Pill” that I describe in my earlier post was added in 2007, but some newspapers and websites still have the pre-2007 Constitution on their websites. Given the number of things going on and the complexity of the provisions at issue, it is possible that people missed this. Furthermore, as Nathan Brown pointed out in a later e-mail, the activists overlooked the flaw in their plan as a mode of legally transitioning away from NDP rule. Furthermore, as Prof. Brown also noted, it needs only a minor change to work. (Mubarak would have to dissolve the parliament prior to handing the reins “temporarily” to his Vice President and at which point new Parliamentary elections would be held with 60 days under an existing law that (when it comes to parliamentary elections) could actually be held fairly.)

Assuming that the statement of the activists, like that of Prof. Masoud reflects a desire to find a formally legal manner of transferring power, one cannot help but be struck by their implicit embrace of a principle of legality–notwithstanding the inconvenience that embracing this principle might cause and, notwithstanding the fact that embracing the principle might force one to grant the members of the outgoing regime some concessions that one would not have to grant them if one simply removed them extra-legally.

In my next post, I want to discuss some of the reasons why a committed proponent of the regime in Egypt might today accept the proposition that a legal transition is preferable to an extra-legal one–even though legality might delay Mubarak’s departure or might require some distasteful concessions. Obviously the preference is not unqualified. I will not speculate about how many Egyptians actually accept this proposition or how-much-delay/how-many-concessions they are willing to endure. This is something that will become clear over time. I do want to make clear, however, that some do accept this principle, and it is worth thinking about why this might be.

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Southern Sudan’s Constitutional Review

On January 21 the Government of Southern Sudan (GoSS) issued a presidential decree for the “formation of the Technical Committee to review the Interim Constitution of Southern Sudan” and to present a final draft of a transitional constitution to the President by April 25. The intention is to have a transitional, as opposed to permanent, constitution adopted by the Southern Sudan Legislative Assembly and signed by the President on July 9, the anticipated date of Southern Sudan’s independence. That it is only a transitional document reflects the strong desire to put in place the necessary provisions to govern effectively and exercise fully the sovereignty of the South, while recognizing the myriad of issues that need to be addressed (both domestically and with the North) and the shortage of time between the referendum and independence preclude a comprehensive constitutional undertaking during the remainder of the CPA’s interim period.

As currently envisioned, over the next three months the Technical Committee will work to draft amendments to the ICSS to transform the existing regional constitution to a (transitional) constitution of a sovereign state – powers that were formerly exercised in Khartoum will be transferred to Juba; the regional government and legislature will become national in character, as will other previously subsidiary institutions such as the regional armed forces and electoral commission; other key institutions, such as a central bank, will be created; and so on, in order to ensure effective governance upon independence. Fractious and more difficult issues, such as power- and wealth-sharing arrangements, federalism and decentralization, will be tabled until after July 9, when a later process to draft a permanent constitution begins.

The process for a permanent constitution is expected to be substantially longer. Based on resolutions of the All Southern Sudan Political Parties’ Conference (ASSPPC) in October 2010, the permanent process may include a National Constitutional Review Commission, a Constitutional Conference (thought to include all political parties and other interests), and an elected Constituent Assembly to adopt the permanent constitution. However, the establishment, composition and exact mandate of each of the bodies remains to be agreed among the parties, and then likely enshrined either in the transitional constitution or law.

To date, divisions within the political fabric of Southern Sudan have been largely overcome by the common goal of independence. With that unity of purpose soon to be fulfilled, many expect deep-seated and long-held political rivalries to re-emerge post-referendum. The challenge for GoSS officials (overwhelmingly from the Sudan Peoples’ Liberation Movement (SPLM) party) will be to manage the expectations and demands of the political opposition, some of whom contested the results of the April 2010 elections and have had an uneasy relationship with the leadership.

Opposition parties refer to the ASSPPC resolutions and call for a role in the preparations for the post-referendum period, including the development of the transitional constitution. The key to GoSS getting buy-in and support for the transitional constitution, therefore, will be including the opposition in the debating and drafting of the transitional constitution, convincing them of GoSS’s unconditional commitment to a comprehensive and inclusive constitutional dialogue after July 9, and discussing with the parties and then incorporating into the transitional constitution or law provisions setting forth concrete time lines and steps for drafting and ratifying the permanent constitution.

Recent statements by the SPLM, perhaps in response to objections by some opposition parties that they are inadequately represented on the Technical Committee, demonstrate confidence building measures and a commitment to a process that will include all major stakeholders. SPLM Secretary-General, Pagan Amum, recently announced that after the referendum results are announced an all parties’ conference will be held to, among other things, “decide on the shape and composition of the constitutional development process and we envisage a process that will be all-inclusive: all the political parties and civil societies in southern Sudan will participate in the development and drafting of the permanent constitution for southern Sudan.”

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Should He Stay or Should He Go: Negotiation as the Price of Constitutional Legality in an Egyptian Transition

In Egypt today, there are demands for the immediate resignation of President Hosni Mubarak. Those who make this demand seem to assume that his immediate resignation will facilitate the collapse of the regime that he heads—the political regime dominated by Mubarak’s National Democratic Party (the NDP). From a political perspective this might be true, though I cannot say for sure. Intriguingly, however, from a purely legal perspective, Mubarak’s immediate departure might have uintended consequences. Ironically, if Mubarak stepped down immediately it would become much harder to have a meaningful campaign period and hold an election in which the most popular leaders could take part and take the presidency—or at least harder to do so in a manner that is consistent with the formal requirements of the Constitution.

There is an ingenious device that one finds in the Egyptian constitution—one analogous to some of the “poison pills” that corporations occasionally adopt to prevent hostile takeover. If a President resigns or is otherwise removed, power will be transferred to high officials appointed to their office by the President. Not surprisingly the people in those offices today are members of the NDP elite. Furthermore, snap elections for a new president must be held under terms that overwhelmingly favor the election of a new President from the NDP. More maliciously still, the amendment provisions of the constitution are drafted in such a way that the Constitution cannot be amended in time to prevent the snap elections or alter the terms under which they are run. In short, even if the demonstrators had the power to force the current government unwillingly from office (something that they probably do not) they would not have the legal authority thereafter to run a fair election for a new President. To arrange for a formally “legal” transfer of executive power away from the NDP, one will have to negotiate with NDP leaders about the terms under which they cede power.

This raises some deeper questions. Among them: should anyone feel any reluctance about ignoring and violating the terms of this constitution? In this post let me just describe the problem and in a later post ruminate about some of the questions that it raises.

The “Poison Pill” in Egypt’s Constitution.

The Egyptian Constitution envisions three possible circumstances under which power might shift from a sitting president to another figure: (A) The President finishes his term, (B) The President is temporarily incapacitated or (C) or The President is permanently removed from office. In each of these cases, the constitution as it exists today provides that the election will be held according to a scheme that is rigged in subtle ways in favor of the current ruling party, the National Democratic Party (NDP). If people want not just a change of President but a change to someone who is not associated with the NDP (as demanded by the Egyptian protesters), the constitution will have to be amended so as to change the terms under which candidates for the presidency are selected and elections for President will be run. One might expect that it would be easier to achieve such an amendment if one forced the current president to resign. But one would be wrong. As a matter of constitutional design, the sudden departure of a President seems to set inexorably in motion a election that will be run under un-amended provisions of the current constitution. Let me explain:

The Egyptian constitution provides that, at the end of a presidential term, a presidential election shall be held either to re-elect the current President or to elect a new one. The Constitution limits, however, the people who can run in this election. Article 76 of the Constitution is a long provision that seems at first glance to allow candidates from multiple parties to run but which has been meticulously crafted to ensure that, in Egypt’s current situation, only candidates supported by the ruling National Democratic Party and could win. The parties with whom the most famous opposition figures (secular or Islamic) are most associated will not be legally permitted to field a candidate. This would need to be amended to allow for truly open elections. But an amendment to the Constitution requires the recommendation of the president or 1/3 of the delegates to the lower house of the legislature, the People’s Assembly. Since the regime has rigged elections to make sure that members of People’s Assembly are overwhelmingly members of the NDP, the People’s Assembly is unlikely to recommend anything the president would not. In short, if one wants free elections one needs to negotiate with the President and strike some bargain that would lead him to call for the amendment of Article 76.

If the president is for any reason, deemed “temporarily” unable to fulfill his duties, the situation remains much the same. Article 82 of the Constitution provides that the powers of the presidency will devolve to the recently Vice President, if there is one and the Prime Minister, if there is not. In this case, it would devolve to the recently appointed vice president of the regime, the head of the intelligence service Omar Suleiman. Article 82 bars the vice president, during the time he is filling in for a temporarily disabled president, from dissolving the People’s Assembly or requesting an amendment to the constitution. However, the Assembly could, on its own propose an amendment. And it is largely beholden to the leaders of the NDP. For the establishment of a truly open election down the line, Gen. Suleiman and his allies in the NDP would “allow” the captive legislature to call for an amendment of the constitution in a way that would lead to truly open elections and, thereafter, a shift of power forever away from the NDP. But they too would surely demand some concessions before they did so.

Things change if President Mubarak were forced to resign permanently. Ironically, however, they do not make it any easier, and perhaps, make it harder to bring a non-NDP person into the Presidency . If the president were to suffer permanent disability or sent a formal letter of resignation to the People’s Assembly the vice president does not become the president. Article 84 instead says that the Presidency is to be assumed by the speaker of the People’s Assembly acts as President for 60 days or, if he is unavailable, the Chief Justice of the Supreme Constitutional Court. During these 60 days, the Speaker or the Chief Justice, as the case might be, are forbidden to dissolve the People’s assembly and neither is permitted to request an amendment to the Constitution. During these 60 days elections for the presidency must be organized and held. It is this provision for quick elections that is so nasty.

Unless the Constitution is amended, the elections held within 60 days will have to be held under the terms of Article 76—the provisions that favor NDP candidates. As it turns out, however, it takes more than 60 days however, to amend the Constitution to ensure that the elections are held in a fair and open manner. Article 189, provides that either the President of the Republic or a one third plurality of the People’s Assembly, may request the amendment of the Constitution. If a majority votes for the proposed amendment there must be a two month delay and then another vote. If a 2/3 supermajority approves, then there must be a popular referendum. In short, elections must be held within 60 days of a President’s departure or resignation and an amendment requires more than two months to go into force. So, paradoxically, Mubarak’s permanent departure might make it very difficult legally to hold a constitutionally valid election for a new president that would be fair and free and viewed as legitimate.

One cannot help but admire the perverse craftsmanship of this scheme. If one wants to satisfy the demands of this constitution AND at the same time satisfy Egyptian protesters demands for a quick transititon to a true multi-party democracy, then one should probably try to keep Mubarak in office (even if through a legal fiction he is considered to be “temporarily” disabled and power rests with a caretaker like Suleiman.) This forestalls the need for an election within 60 days and allows people to negotiate changes to the constitution and law so that open elections can be held. This would involve reforms to Egypt’s laws and administrative regulations, which need to be revised (or perhaps officially placed under a policy nonenforcement) so as to open space for political discussion. Constitutional amendments also need to be negotiated quickly so as to permit a truly open slate of candidates for President. These would need to be approved quickly by a majority of the People’s assembly which would pave the way for a subsequent supermajority vote two months later followed in short succession by a national referendum for a new president.

The Questions This Raises

This situation is intriguing. And it raises a question that one often deals with when trying to dismantle an authoritarian regime without violating the constraints of legality. Is it actually worth contorting oneself to ensure formal legality? Assuming that the protesters acquire the means to compel Mubarak to step down, this is a question they will have to ask themselves. And, I suspect, it is not just with respect to this position. Surely there are other parts of the Constitution that people might be tempted to ignore or violate in the interests of changing power, calling for a new constitutional convention and, in other ways, establishing quickly a more democratic and liberal Egypt.

–Clark Lombardi

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Egyptian developments

President Mubarak has announced he will step down, supposedly in accordance with constitutional procedures in September. Many protesters, however, find this to be inadequate. Meanwhile some opposition figures assert they will help develop a drafting process for a new constitution. For a provocative recent paper discussing the disadvantages of group drafting of a constitution (as opposed to individuals or even foreigners), see “Constitutional Design in the Ancient World,” by Lanni and Vermeule,

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Published on February 1, 2011
Author:          Filed under: hp, Mark Kende

New report on Human Dignity

We have a new report on the protection of human dignity in national constitutional texts, available in the “Reports” section of the website under the “Rights” tab, or directly here. From what we can tell, the concept first appeared in the constitutions of Finland and Estonia in 1919 and spread rapidly after its adoption as a core concept of international human rights law after World War II. Over 70% of constitutions in force in 2000 included the concept. The report contains some samples of different types of references to the dignity concept.

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Published on January 31, 2011
Author:          Filed under: dignity, hp, Tom Ginsburg

French Court Affirms Ban on Gay Marriage

Yesterday, the French Constitutional Council upheld a law prohibiting gay marriage. The ruling appears to be as much about the institutional relationship between courts and legislatures in France as it is about marriage itself.

In its short decision, the Constitutional Council made two points of note. First, the bundle of family rights preserved in the French constitutional tradition does not protect same-sex couples’ right to marry. Therefore, reasoned the Council, the legislature may prohibit gay marriage and instead require same-sex couples wishing to solemnize their relationship to enter into civil unions. [paras. 7-8] Second, the Council must respect the legislature’s judgment in choosing to treat same-sex and opposite-sex couples differently. [para. 9]

The official judgment is available, in French, here. The webpage also archives related materials including the official press release accompanying the decision.

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Published on January 29, 2011
Author:          Filed under: France, gay marriage, hp, Richard Albert

Further Changes Proposed to the Turkish Constitutional Court

Late last year, in September 2010, Turkish voters approved by 58% of the vote a set of constitutional amendments, which included a court-packing plan that expanded the size of the Turkish Constitutional Court from eleven to seventeen seats (which I discussed here). Further changes are now on the horizon for the Constitutional Court. Earlier this month, the governing Justice and Development Party proposed legislation to alter the hierarchy of the Turkish judiciary.

Currently, the Turkish judiciary consists of a two-level court system, with trial courts at the bottom and appellate courts at the top. The four primary appellate courts—the Constitutional Court (Anayasa Mahkemesi), the Council of State (Danistay), the High Court (Yargitay), and the Military High Court (Askeri Yargitay)—have jurisdiction over different subject matters. The Constitutional Court reviews the constitutionality of laws, the Council of State hears appeals from lower administrative courts, the High Court has jurisdiction over civil and criminal appeals, and the Military High Court hears appeals from lower military tribunals. Under the current system, each appellate court is the final arbiter of cases within its subject-matter jurisdiction and no right of appeal exists from one appellate court to the other (though, under Article 152 of the Constitution, courts may refer a case to the Constitutional Court where the court is “convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties”).

The proposed legislation would transform Turkey’s two-level judiciary into a three-level judiciary by placing the Turkish Constitutional Court at the top of the hierarchy. Under the proposed legislation, the Constitutional Court would become the highest court of appeal and would have jurisdiction to review, affirm, and overturn the decisions of the Council of State, the High Court, and the Military High Court, which would become intermediate courts of appeal.

Burhan Kuzu, the Chair of the Constitution Committee in the Turkish Parliament and a founding member of the governing party, explained that the proposed changes are intended to improve Turkey’s poor track record before the European Court of Human Rights (ECHR). According to Mr. Kuzu, if the Turkish Constitutional Court has jurisdiction to review the judgments of the other appellate courts, the Constitutional Court may correct an erroneous court ruling without the intervention of the ECHR, obviating any appeal to the ECHR.

But others believe ulterior motives lurk behind the proposed legislation. Notwithstanding any concerns about Turkey’s track record before the ECHR, why would the governing Justice and Development Party expand the jurisdiction and the authority of a court with which it has clashed repeatedly? After all, this same court was the target of a successful court-packing plan proposed by the governing party last September.

The secularists believe that the governing party, having successfully passed the court-packing plan, now wants to place the court at the top of the Turkish judiciary. Following the implementation of the court-packing plan, the once pro-secular Constitutional Court is expected to drift toward the pro-Islamist ideology of the governing party. And because the Court will likely start singing the governing party’s tune, the governing party has a powerful motive to expand the Court’s jurisdiction and ensure that the other appellate courts in the country fall in line with the Court’s newfound ideology.

The proposed legislation on the promotion of the Turkish Constitutional Court is still pending before the Constitution Committee in the Parliament.

— Ozan Varol, Chicago-Kent College of Law

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Published on January 27, 2011
Author:          Filed under: constitutional amendment, hp, Turkey

Independent Institutions in Iraq

The Iraq Federal Supreme Court (FSC), following a petition by Prime Minister Maliki’s office, has just ruled that independent commissions such as the Independent High Electoral Commission (IHEC) and the Central Bank of Iraq are to be attached to the executive branch. The ruling would seem to contradict the 2005 Constitution’s Chapter on Independent Commissions, which makes IHEC (as well as the Human Rights Commission and Public Integrity Commission) “subject to monitoring by the Council of Representatives” (the Iraqi Parliament). (Art. 102) The Central Bank is similarly made “responsible before the Council of Representatives.” (Art. 103) Despite this seemingly clear language, the FSC found Articles 102 and 103 ambiguous and ruled that the “nature” of IHEC’s and other similarly situated commissions’ work is “executive” and that “the subordination to the legislature contradicts the principle of separation of powers.” See, Iraq and Gulf Analysis,

From a legal standpoint the ruling is curious in that it uses a constitutional principle (separation of powers) to declare a constitutional provision unconstitutional. The ruling is even more tenuous in light of the fact that the Constitution attaches other institutions in the Independent Commissions chapter, such as the Endowment Commissions (Art. 103) and Martyr’s Foundation (Art. 104), to the Council of Ministers (the Iraqi executive) — evidencing thought and consideration by the drafters on which commissions should be responsible to the legislative branch and which to the executive.

The ruling would also seem to run afoul of the growing political preference in the wake of the March 2010 elections to disperse power within the executive branch and away from the Prime Minister’s office, as evidenced by a range of power-sharing proposals by Iraqiyya, the Kurdistan Alliance and ISCI during the government formation process. And finally, it contravenes the clear intentions of the previous parliament to clarify and solidify both the independence of the commissions and their relationship to the legislature. For example, the final report of the 2007 Constitutional Review Committee (of which all major political parties were members) included provisions that state:

• “Independent commissions shall be subject to the oversight of the Council of Representatives.”
• “Independent Commissions shall submit their annual budget and final accounts to the Council of Representatives after being scrutinized by the Board of Supreme Audit.”
• “The approval on appointing the heads of Independent Commissions shall be by the Council of Representative, by absolute majority of its members.”
• “. . . Heads of Independent Commissions shall be relieved by the Council of Representatives, by absolute majority of its members . . .”
• “An Independent Commission shall be cancelled by the Council of Representatives, by two thirds majority of the number of its members.”
• “The Federal Government . . . shall support the work of Independent Commissions in order to succeed in their tasks, with consideration to the independency of these commissions.”

The ruling has already generated substantial controversy in and outside Iraq, some critics going so far as to describe it as a “coup.” See,

The actual impact on the commissions themselves will not become clear until more is known about how the executive will manage/oversee them. Over the past two decades, the concept of the independent commission has taken on increased prominence in a growing number of constitutions and states. Commentators now often refer to them as a “4th branch” of government and the “integrity” branch by virtue of their role as protector of the system of government itself, its neutral monitoring, the promotion of transparency and accountability, and to make sure that politics is conducted on a level playing field. To effectively assume this role independent commissions require legal, political, financial and administrative independence, and must be insulated from partisan politics and the wishes or self interest of the executive or ruling party.

The Constitutional Review Committee amendments were intended, first and foremost, to constitutionalize these principles. At a time when Iraqis identify corruption as one of the most serious problems facing the nation; when one considers the pressure put on IHEC during the March 2010 elections cycle by virtue of contentious Debaathification decisions and the Prime Minister’s allegations of the manipulation of results by the electoral commission and demands for a recount; and the existential threats facing Iraq’s Christian and other minority communities – Iraq needs to protect and indeed bolster the independence of the Commission for Public Integrity, IHEC, the High Commission for Human Rights, and other commissions vital to the health of Iraq’s nascent democracy. Unfortunately, there are legitimate reasons to fear that the Federal Supreme Court’s ruling will instead further politicize and undermine these institutions.

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Published on January 26, 2011
Author:          Filed under: constitutional amendment, courts, hp, iraq, Jason Gluck

Tunisia and constitutional transition

The situation in Tunisia is perhaps too fluid to speculate on, but if the current situation stabilizes, it is an interesting example of constitutional compliance under a (potentially collapsing) authoritarian regime. Article 57 of the 1959 Constitution, as amended, reads:

“In case the Presidency of the Republic becomes vacant on account of death, resignation, or permanent disability, the Constitutional Council shall meet immediately and pronounce the permanent vacancy by absolute majority of its members. It shall address a declaration to this effect to the President of the Chamber of Councilors and the President of the Chamber of Deputies, who shall be invested immediately with the functions of Interim President of the Republic for a period of at least 45 days and at most 60 days….

The Interim President of the Republic may not be a candidate for the Presidency of the Republic even in the case of resignation.

The Interim President of the Republic shall discharge the functions assigned to the President of the Republic, without having the power, however, to resort to a referendum, to dismiss the Government, to dissolve the Chamber of Deputies, or to take the exceptional measures provided for in Article 46.

During the Interim Presidency no amendment to the Constitution or censure motion against the Government shall be admissible.

During the same period presidential elections shall be organized to elect a new President of the Republic for a term of five years…”

Under the terms of this article, Fouad Mebazaa, who had been President of the Chamber of Deputies, was named Interim President. This followed the brief claim of Prime Minister Mohammed Ghannouchi to serve as President. So far so good: it looks as if the provisions of the constitution were being followed. Subsequently, Ghannouchi resumed the role of interim Prime Minister but has vowed to step down after free and fair elections, which he claims will be organized within six months. There is only one problem: Article 57 seems to require a new election for the permanent president within two months. After 60 days, Mebazaa will lose his mandate, and then what? Stay tuned in March for an update…


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Published on January 26, 2011
Author:          Filed under: authoritarianism, hp, Tunisia