Over the weekend, it was reported that Afghanistan’s Supreme Court ruled that President Karzai can remain in office through the elections now scheduled for August, notwithstanding the explicit provision in Article 61 of the 2004 Constitution that the presidential term will end this May 22 . Unreported in the media was how this decision, which was praised by the US and the President, helps resolves an underlying issue in the Afghan Constitution about who has the ultimate power of constitutional interpretation. As detailed in an earlier post by Alex Their, the President’s office had contested the view of the Supreme Court that its power to review laws for conformity with the constitution included the power to interpret the constitution itself. This latest decision represents a certain degree of political pragmatism on the part of the Supreme Court but, perhaps more consequentially for the mid-term, also helps cement its view on the locus of constitutional interpretation.
One of the central findings from our (Elkins, Ginsburg, Melton) study of constitutional change over the last 200 years concerns the role of ambitious executives. Specifically, executives that are hemmed in by term limits or other constraints on their power often seek opportunities to replace or amend the constitution. We also find that such executives are often emboldened by such actions by their peers in neighboring or otherwise relevant countries.
Honduras, it appears, is on the verge of continuing in this tradition. Here’s an AP story from yesterday on the doings in Tegucigalpa.
Honduras contemplates constitutional changes
By FREDDY CUEVAS
Associated Press 2009-03-27 06:09 AM
The president of Honduras is moving ahead with plans for a nationwide poll on whether to change the constitution over the objections of the attorney general’s office, a top government official said Thursday.
President Manuel Zelaya says the 1982 constitution needs to be updated, and he wants the nation to vote on the issue in a public-opinion poll in June. If approved, a binding vote would be held in November.
But the attorney general office’s said Wednesday that the president has no authority to call for changing the charter. It also warned that if the vote is held, government officials could face charges and up to 10 years in jail.
Enrique Flores, the president’s legal adviser, said Thursday that the opinion poll is aimed at improving democracy.
“We aren’t afraid of going to jail for defending the people and our ideas,” he said. “And no one and nothing can stop this.”
Interior Minister Victor Meza also criticized the independent attorney general’s office.
“It is dangerous when state institutions succumb to politics, weakening the rule of law and corrupting institutions,” he said.
Under Honduran law, Congress must call for a constitutional assembly to change the constitution. But the current Congress opposes changing the document.
Zelaya has not said what changes he might propose in a new constitution. Recent reforms promoted by other Latin American leaders have expanded presidential powers and eased bans on re-election.
Zelaya’s four-year term ends in early 2010 and current law requires him to step down. General elections are scheduled for November.
Our colleague Vivien Hart, a pioneer in thinking about how the process of making constitutions relates to the consolidation of democracy and human rights, recently passed away.
A professor of American studies at the University of Sussex since 1996 and director of the University’s Cunliffe Centre for the Study of Constitutionalism and National Identity since 1991, Hart focused her research on the potential for constitutions to facilitate dialogue and to transform conflict in divided societies. Hart is the author of Bound by Our Constitution: Women, Workers, and the Minimum Wage; Writing a National Identity: Political, Economic, and Cultural Perspectives on the Written Constitution (edited with Shannon C. Stimson); and Distrust and Democracy: Political Distrust in Britain and America. Her USIP Special Report, Democratic Constitution Making, can be found at http://www.usip.org/pubs/specialreports/sr107.html
Vivien’s examination of modern constitution making led her to conclude:
“Today’s framers seek to build new practices. Recent constitution-making processes have been accompanied by massive efforts to involve the public before, during, and after the text is finalized. Examples of new practice include: prior agreement on broad principles as a first phase of constitution making; an interim constitution to create space for longer term democratic deliberation; civic education and media campaigns; the creation and guarantee of channels of communication, right down to local discussion forums; elections for constitution-making assemblies; open drafting committees aspiring to transparency of decision making; and approval by various combinations of representative legislatures, courts, and referendums”
These innovations have suffused new constitution making processesaas part of a larger trend of democratization around the world. The impact of these changes, however, remains far from certain. There are problems of implementation – many of the public consultation efforts appear to be more for show than for meaningful public input. But even where there is a genuine effort, this opening of a once elite sphere for public contest has also brought its own complications, as Vivien noted:
“There is no simple transition to a new constitutionalism. Control of the process and of the ultimate distribution of power is at stake and participatory constitution making remains highly controversial. Constitution making has not been made easier, and by no means all of these innovations, nor of the constitutions that result, have been successful. But the process does move incrementally closer to the needs of the present day.”
Although Hart wrote about an “emerging right” under international law to participation, ultimately the heart of her argument about participation was utilitarian, arguing that a lack of public participation in an era of democratic expectations would undermine consensus and constitutional stability:
“It is in such an environment of conversational constitutionalism that the issue (startling to some traditionalists) of a right to participate in making a constitution has arisen. The idea is hotly contested by those who argue that only elites in modern societies possess the moderation, technical expertise, negotiating skills, ability to maintain confidentiality, and above all rational incentives to compromise so as to maintain power that make for effective constitution making. But it is hard to argue against democracy. The elite-made constitution, according to the new paradigm, will lack the crucial cultural element of legitimacy. It will do so because the process, not just the final text, is seen as flawed.”
Hart drew seven lessons from her review of recent experiments in constitution making:
- Multiple circumstances—economic, social, cultural, and the level of violence—affect the possibility of participatory constitution making.
- If it comes to a crunch, power still trumps participation (very obviously in Zimbabwe but also in societies making a fresh start, where the playing field might seem more even, as in East Timor).
- Elites still set the agenda for constitution making.
- The constitutions that result from high levels of participation still look very familiar, as the traditional genre with its categories of bills of rights and institutional architecture still predominates.
- The constitution-making process has been opened up to expectations of participation that derive from international law and from political practice.
- Participation makes a difference, especially insofar as it creates a better educated public.
- A committed elite such as that in South Africa may guide an educational process in ways that raise the standard of participatory democracy.
Vivien’s efforts lifted the thoughts and aspirations of those whose work she touched.
A constitutional dispute may be brewing in Cambodia, as long-time opposition leader Sam Rainsy is losing his parliamentary immunity at the request of the Ministry of Justice. During the 2008 election campaign, Sam made remarks about the ruling Cambodia Peoples Party (CPP) that were deemed to constitute defamation. He then refused to pay the fine of roughly US $2500. Sam claims, with some textual support, that the parliament alone can remove his immunity, but this should not be a significant barrier given CPP dominance.
Parliamentary immunity is very common feature of constitutional design. Most constitutions today, including that of Cambodia, provide for qualified immunity for legislators from detention and from criminal prosecution. Far less common, however, is immunity from civil liability. Even in common law systems which traditionally provide for immunity for statements made in parliament, statements made during election campaigns are not subject to the same protection. In Canada in 2006 for example, now-Prime Minister Stephen Harper denounced the then-ruling Liberal Party on the floor of the House of Commons, stating that the government ran “a massive corruption ring using organized crime.” Parliamentary immunity prevented the Liberals from taking any legal action against Harper, though they threatened to do so if he repeated his allegation during the campaign.
The Cambodian case (as well as the more well-known case of Singapore) illustrates how dominant ruling parties can use civil liability to intimidate and even bankrupt the opposition, restricting political competition. Constitutional designers concerned with ensuring vigorous political competition ought to pay some attention to civil as well as criminal immunity. One example is the Constitution of Belize (2002), whose Article 74 provides that “no civil or criminal proceedings may be instituted against any member of either House for words spoken before, or written in a report to, either House or a committee thereof.” To be sure, such a provision would not save Sam Rainsy; but given the dominance of Hun Sen’s CPP, little would.
Alex’s post on the constitutional crisis in Afghanistan — specifically the tension between constitutional deadlines and practical reality — brings to mind similar challenges already encountered by Iraqis as they simultaneously attempt to rebuild a nation, stamp out vestiges of a near civil war, and honor the rule of law.
The first such tension occurred literally with the first constitutional obligation following the 2005 national elections. Art. 54 requires parliament to convene its first session within 15 days of certification of the election results. The results were certified on February 10 but the first session did not take place until March 16. The delay was due to political haggling over who would assume the top governmental posts (Parliament Speaker, President, and PM) — a critical first step for Iraq’s major constituencies to agree on a national unity government. It would be months before this process would be completed (and in the process other constitutional deadlines would be missed), but the end result, however imperfect, was a national unity government that survives to this day and has made momentous progress towards national accommodation.
A second example where practical considerations trumped constitutional obligations concerns the on-going constitutional review. Mandated by Art. 142, this comprehensive review of all constitutional provisions was to commence with the forming of a committee “at the beginning of [the parliament’s] work” and result in a report by the committee to the full parliament “within a period not to exceed four months.” Contrary to these requirements a committee was not formed until over seven months after parliament’s first session and two years later the committee has yet to present a final report to parliament. The reason: there are critical unresolved constitutional issues that go to the heart of Iraq’s federal structure, its treatment of vital natural resources, and its internal boundaries (among others) and Iraq’s political leadership has deemed it more important to allow the necessary time to work out compromises to these challenges then to abide by an arbitrary and self-defeating brief constitutional time line.
So what is one to take away from Iraq’s and Afghanistan’s constitutional travails? One lesson might be a caution against constitutional time lines, particularly in transitional or post-conflict countries where practical realities are likely to get in the way. A second lesson could be the need to include in constitutions a mechanism to resolve (predictably) missed deadlines. A third, more controversial, lesson may be to accept that in nascent democracies struggling with the myriad of challenges confronting Iraq and Afghanistan today a certain amount of constitutional flexibility may be necessary. Rule of law practitioners (and I count myself among them) should cringe at the parade of horribles that may result from starting down this slippery slope. (Another missed deadline, Art. 140’s December 31, 2007 deadline for a referendum on Iraq’s disputed territories, might have been more easily ignored as a result of the earlier more innocuous constitutional transgressions.) And to be sure, the far preferable solution is a document that is itself responsive to these challenges. But no constitution, however well crafted, will be able to provide for every contingency — particularly in nations where development of the constitutional “rules of the game” has far out-paced political maturation and development of a cohesive national compact. Iraqis have been pragmatic and creative in resolving crises stemming from missed constitutional deadlines. May Afghanistan similarly resolve its own.
Kabul: Afghanistan is experiencing a complex constitutional crisis concerning the delay of Presidential elections this year, and a fundamental disagreement over what body, if any, has the authority to interpret the post-Taliban constitution ratified in 2004, available here.
To be sure, official language lists could conceivably be inclusionary. However, by far, the modal number of languages listed on these texts equals one (about 85% of constitutions that list an official language list only one). Some (e.g., Iraq (4) and Switzerland (3)) list more. South Africa’s list of 11 languages on its latest constitution holds the current record, although certainly other multiethnic states could contend for the title if they did not adopt explicitly unifying arrangements that go the opposite direction (e.g., Nigeria).
Hugo Chavez goes to the polls today in his second bid to amend the Venezuelan Constitution to eliminate presidential term limits. Should he lose, he has vowed to leave office when his current term ends in 2012; should he win, he hopes to rule for life. Chavez’s success seems likely because he has learned to cunningly manipulate the rule of law in his favor.
Chavez’ power grab, pursued through perfectly legal channels, exposes the Achilles’ heel of the rule of law: so long as you abide by its principles, you can do just about anything, including changing the rules to extend your control. It offers cover for even the most despotic behaviors. And if Chavez succeeds, he becomes an ominous model for a new age of would-be dictators.
The rule of law, as conventionally defined, requires that laws be clear, open, and equally applied to individuals and government alike. In recent years, it has become the subject of overlapping international consensus, such that dictatorships and democracies from Beijing to Burundi proclaim its virtues. The World Bank and other international donors have poured billions of dollars into improving the rule of law around the world. Everyone likes the principle because it promises procedural order and straightforward implementation of the rules, whatever they might be.
Chavez has been crafty in manipulating this set of understandings. In December 2007, voters narrowly rejected Chavez’ proposed constitutional amendments, which included both the abolition of term limits and the expansion of emergency presidential powers. Some human rights groups and the United Nations condemned that proposal, mainly for the low bar to invoking a state of emergency.
This time Chavez has been careful to restrict the amendment to the abolition of term limits, and the international community has been quiet. Polls suggest that he will be successful, setting up the probability that Chavez will serve until 2018 and beyond.
There is, of course, nothing inherently undemocratic about constitutional amendments extending the term of leaders: indeed, one can argue that by artificially preventing voters from choosing a candidate they might prefer, term limits are themselves undemocratic. Yet there is something unseemly about a ruler in a democracy serving for life. Democracy is ultimately about processes, not personalities, and so we naturally are suspicious of a ruler who seeks to stay on forever.
From the perspective of the rule of law, the key question is whether rules on presidential terms are properly enacted. In the old days, a Latin American leader bent on extending his rule would simply have replaced the constitution after his bid to amend it failed. Indeed, Venezuelan history is littered with 24 discarded constitutions, second only to the Dominican Republic (29) in its rate of turnover.
Unlike many of his predecessors, however, Chavez was patient enough to wait for another day, paring down his proposal while quietly expanding his control over the media and courts. Chavez is a gadfly and a lightning rod, delivering and receiving epithets with great abandon. Perhaps over time he will ultimately run his country into the ground. But he is smart enough to have figured out that if he follows the rules, he can get away with a lot. Ch CC avez represents a new disturbing kind of ruler for a new age – at a time when most are praising the rule of law, Chavez understands that he can use it to move toward unfettered power.
It is often tempting, or at least convenient, to charge sitting legislatures with the task of constitution writing. These bodies are usually representative and are built to write laws. Why not trust them with higher law too? One concern is the problem of self dealing. One of, if not THE most, important tasks in constitution making is setting the balance of power between the legislature and executive. Can we trust legislators not to put their finger on the scale?
Some early evidence suggests that we can. In a working paper, my co-authors Tom Ginsburg and Justin Blount and I compared roughly 200 consitutions written by sitting legislatures with another 200 written by constituent assemblies dedicated to constitution making. Adapting a measure of legislative power developed by Steven Fish, we found that, if anything, sitting legislatures tend to provide LESS power to legislatures than do constituent assemblies. This finding could very well be a product of non-random selection in distribution of the constitutional process (this is observational data, after all). Nonetheless, the findings should provide some comfort to those who lose sleep at night wondering about self-serving legislators!
As some of you know, we are periodically combing through the Comparative Constitutions Project’s growing dataset on constitutional provisions (of both historical and contemporary constitutions) in order to produce “option” reports on various design provisions. The idea is simply to ensure that drafters know what others have done.
This week we added three reports, one on customary international law, another on official and national language provisions, and the other on secession and accession. These bring our report total to close to 50 with many more to come. We will announce the publication of new reports here should you want to stay current!