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I·CONnect

Blog of the International Journal of Constitutional Law

Constitutions and budgeting: why don’t we observe more pre-commitment?


A popular academic theory of constitutions holds that constitutions serve to commit the polity across time. Knowing that we are likely to try to impose majority will on minorities in the future, we tie our collective hands to limit the damage that can be done to individual and community rights. Knowing that we are likely to prefer to continuously re-elect incumbents, we impose term limits that force us to choose new candidates, limiting democratic choice. There are many other examples in the literature, which is associated with scholars like Cass Sunstein and Stephen Holmes.

From this point of view, it is somewhat odd that constitutions do not more frequently limit the size or growth of government in budgetary terms. It might make sense, for example, to pre-commit not to engage in deficit spending over a certain percentage. To be sure there are lots of examples of constitutional provisions that set aside a certain percentage of the revenue for particular allocations, and some examples of restrictions on extra-budgetary spending (Austria’s Art. 51b limits it to 1/1000 of total spending, unless there is a state of defense; other constitutions prohibit extra-budgetary spending entirely.) But I know of no constitution that imposes an explicit limit on the size of the state. Relatively few national constitutions require a balanced budget, even as an aspiration. Switzerland provides one example: Art. 126 makes reference to a balanced budget over the long term and states that “The maximum of the total expenditures which may be budgeted shall be determined by the expected receipts, taking into account the economic situation.” Article 128 actually spells out the maximum personal income tax rates, so presumably when one combines limited taxes and a sort-of balanced budget requirement, there are fairly rigid limits on state spending. But the whole Swiss constitution can be amended through referendum so the level of pre-commitment is not that high.

The main point is that, while constitutions sometimes involve precommitments, they do not always do so in areas we might think they should. And many provisions of constitutions don’t seem well explained by precommitment theory: why do so many spend so much time on issues like the national anthem and oaths of office that could easily be dealt with in statutes?

–TG

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Published on April 10, 2010
Author:          Filed under: budget, hp, Tom Ginsburg
 

“Targeted killings” yet again?

An interesting story from Israel. Compliance with judicial scrutiny of “process-light” measures adopted by governments to combat terrorism is certainly not limited to the post-9/11 context. Spain (ETA), Britain (Northern Ireland), or Peru (Shining Path) are merely few examples. In 1999, the Israeli Supreme Court banned the use of torture in interrogations by Israel’s General Security Services, but allowed the use of what it termed “moderate physical pressure.” In 2006 it ordered the weighing of security considerations against potential harm to civilians in determining the legality of “targeted killings” (the controversial practice of assassinating suspected Palestinian terrorists by Israel’s security forces). The Court also held that a sincere effort must be made to arrest suspects before an order to kill is issued. Since that ruling, the official line has been that “targeted killings” are illegal and no longer practiced. Or are they?

On April 7, a story broke out in the Israeli media after it had been censored for a few months but eventually leaked to numerous foreign media outlets. It goes something like this: In 2007, a secretary at the office of a senior Israeli army general, during her mandatory military service (in most cases, 3 years for men, 2 years for women), collected and kept hundreds of documents, including “top secret” ones, which upon finishing her military service she transferred to an investigative journalist in Ha’Aretz (arguably, Israel’s most respected newspaper). The documents, dated after the Supreme Court ruling in 2006, appear to indicate that the IDF continued to approve the de-facto “killing upon encounter” of Palestinian Islamic Jihad militants that are included in the IDF’s “most wanted” list. These documents also appear to indicate an a-priori approval of killing of Palestinian civilians that happen to be at the scene. (As an aside: allegations of that nature were made in the Goldstone Report investigating alleged international law and human rights violations during the Israel-Hamas conflict in Gaza in early 2009). In late 2008, the journalist published an article accussing the army of disregarding the Court ruling. A year later, security services asked the journalist to reveal his sources. He refused, but agreed to hand in the documents and his computer. Days later, the source was detained, put in a 4-month house arrest, and is now facing charges of severe espionage with an intention to harm national interests. Conviction as charged carries a possible life sentence. The matter was kept in the dark for months.

So several issues arise, among them: 1) the obvious tension between freedom of the press and security needs, or what’s the role of censorship in such situations; 2) the shaky moral foundations of the “targeted killings” practice used by “rule of law” states; 3) the ethical and legal rules of engagement with respect to the source-journalist-security services triangle; and 4) the army’s apparent disregard, or at least loose interpretation, of Supreme Court rulings. The source, herself working for a local news website, says the documents were circulating around freely in the general’s office, with dozens of low-ranked personnel with little or no security clearance having access to them. She says she had no intention to harm national security interests, just to alert the media to the situation. Intentions aside, the story has now turned into a whole espionage-censorship-is the army above the law kerfuffle. Did top army generals, perhaps even pertinent political authorities, blatantly ignore an unwelcomed Supreme Court ruling? Please stay tuned.

RH

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Published on April 8, 2010
Author:          Filed under: Israel, Ran Hirschl
 

Race in the New South Africa

South Africa has gone through a rough few weeks recently with racial issues at the forefront that touch on constitutional questions. The controversial leader of the African National Congress youth league, Julius Malema, has included a sing-along with his speeches. He uses an anti-Apartheid song that contains the lyric “shoot the Boers” and other similar statements. This has created quite a row given that Malema has significant political power in the majority party.

Next, the controversial white right wing Afrikaaner (Boer) nationalist, Eugene TerreBlanche, was brutally killed, allegedly by two blacks who worked for him. The authorities have stated the killing was connected to supposedly unpaid wages. The authorities have also said that they will prosecute fully. Some supporters of TerreBlanche, however, claim the killing was linked to the kind of rhetoric used in the song mentioned earlier. This seems like a stretch.

Several legal issues have arisen. One is that a court had just recently enjoined Malema from singing this song at rallies, because the song supposedly violates South Africa’s hate speech restrictions. Another is that the National Prosecuting Authority has announced that it will try the accused TerreBlanche killers in camera because one is only 15 years old (the other is 28). Whether either legal decision will stand is unclear. What is clear is that South Africa’s racial divisions remain significant.

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Published on April 8, 2010
Author:          Filed under: hp, Mark Kende
 

Kenya’s draft moves on…

Kenya’s draft Constitution moves today to the office of Attorney General Amos Wako, who has four weeks to prepare the text for public referendum. The current text is the same as that forwarded by the Committee of Experts to the Parliament in late February—Parliament debated but failed to pass some 100 proposals for amendment. Prime Minister Raila Odinga called for no further amendments (perhaps thinking about Wako, whose earlier draft constitution was key to the unraveling of the prior process in 2005). So it seems that this draft will likely be the final product, or very close to it.

Some observations on the draft: It is a significant improvement over earlier versions in the process, on a number of dimensions. Although the draft establishes a presidential system, which has led to some concern given the troubled history of presidentialism in Africa, this is probably preferable to the semi-presidential system that was initially proposed (though arguably inferior to the parliamentary model). There are a number of independent commissions with some institutional protections, though limited powers. The parliament will have a role in approving appointments and so this may form some check on the president. The devolution scheme, which was a major focus of debate, will establish 47 counties which are to be the primary subnational unit. The counties are represented in the Senate, which has legislative powers for topics related to subnational governance.

This is not to say that all is perfect in the draft. 47 counties is both a large number, requiring much administrative duplication, and a small number, in that local government will be relatively far from the communities on the ground. These units may be susceptible to capture and domination by one or the other group in any given geographic area.

The election system, at both levels of government, will involve special seats to represent women, the disabled, and other groups, but the process for picking these seats is unwieldy: they will generally be apportioned to political parties on the basis of the seat totals (not vote totals) earned in the relevant general election. Without any provision for dealing with electoral remainders, these will likely be a source of contention. Other looming electoral issues: Art. 137 implicitly prohibits cabinet members from being nominated for president (because they cannot serve as members of parliament). This seems unwise, as it may discourage strong leaders of smaller parties from entering the cabinet, undermining national cohesion. The draft also adopts a ban on ethnic or regional parties—such bans are typically ineffectual, and may have perverse side-effects if the government uses the prohibition to outlaw opposition parties.

Constitutional politics around the draft are heating up. Certain church groups are opposing the draft because it restored some limited possibility of abortion under conditions of medical necessity, and because it allows for jurisdiction of kadhi courts over some limited issues of Muslim personal law. These issues have plagued Kenya’s constitution-making efforts for some time, and the draft handles them in a compromise fashion. Indeed, by declaring that life begins at conception (a position shared by all religions) the draft already reflects some capture by the Christian groups. No doubt there will be many other issues raised in the forthcoming campaign. Under the transitional provisions Art 12(3), current President Kibaki seems to be prohibited from running again, so this may lead to some opposition, though I’m too poorly informed about Kenyan politics to know if this is really an issue.

–TG

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Published on April 7, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg
 

Kenya’s constitution moves on toward referendum

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Published on April 7, 2010
Author:          Filed under: Uncategorized
 

Constitutional amendment proposals in Turkey

Turkey’s ruling Justice and Development Party (AKP)has submitted a new version of their proposed Constitutional amendments to the Grand National Assembly. The draft differs only slightly in substance from the previous version that the party submitted. One of the new additions is a proposal to alter Article 157 of the Constitution to provide judicial immunity to judges of the Military Supreme Administrative Court would have judicial immunity.

The first version of AKP’s proposed amendments was submitted to parliament last Tuesday, despite warnings from Turkish President Abdullah Gul that the party should take more precautions before amending the constitution. The reform package contains seven revisions from the original amendments unveiled at the end of March, including a highly-disputed reform to the judicial system that would allow military and government officials to be tried in civilian court. The reform would also make it harder for the government to disband political parties that challenge the country’s nationalist establishment and would ban the prosecution of the 1980 coup leaders. AKP says it created the amendments to promote democracy in Turkey and support its bid into the European Union (EU). The proposed amendments have been met with opposition by Turkey’s Supreme Court. In an interview in late March, the president of the court Hasan Gerceker declared that the proposed amendments threaten separation of power and judicial independence. Another iteration in the longstanding struggles between the AKP and the military-judicial complex, if I can use the term.

Thanks to Serkan Yolcu for the heads-up!

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Published on April 7, 2010
Author:          Filed under: hp, Tom Ginsburg, Turkey
 

Update on Kenya



The Kenyan

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Published on April 6, 2010
Author:          Filed under: Uncategorized
 

Kenya parliament passes draft…

without amendments. we are not certain whether this means there were no amendments from the version proposed by the Committee of Experts in late February, or the version proposed by the Parliamentary Select Committee. stay tuned for more information…

-TG

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Published on April 2, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg
 

A Step Backwards for the Iraq Judiciary

The Iraq judiciary has made great strides in its capacity and independence since the fall of the Saddam regime, as demonstrated by brave and politically unpopular decisions made in the name of fair and impartial adjudication. In 2008 the Iraq Supreme Court vacated the Council of Representative’s decision to strip a parliamentarian’s immunity so he could be prosecuted for traveling to Israel. In so doing the court held that a 1950’s law making travel to Israel illegal violated the Constitution’s freedom of movement. In 2009 the Supreme Court overturned the de-baathification (and subsequent disqualification from office) of the President of the Iraqi Bar Association. In its brave and unpopular decision, the Supreme Court determined that de-baathification only applied to public posts and that the Bar Association, as a non-governmental entity, did not qualify. The previously de-baathified individual was allowed to resume his position.

It was hoped that these decisions were indicators of the type of judiciary Iraqi courts were becoming — independent, fair and impartial, and grounded in sound legal reasoning – and gave hope that the judiciary could play a pivotal role in the development of the rule of law in Iraq. Unfortunately, a recent decision involving the March parliamentary elections gives cause for concern.

In the wake of Iraqiyya’s (led by Ayad Allawi) victory over the State of Law Party (led by Prime Minister Maliki) – Iraqiyya won two more seats than State of Law – the Prime Minister has looked to the courts to secure his chances of retaining his post. Article 76 of the Iraq Constitution calls for the President to “charge the nominee of the largest Council of Representatives bloc with the formation of the council of Ministers.” In 2006 there was no uncertainty over the meaning of this provision – the United Iraqi Alliance, a coalition (formed before the election) of Shia parties, had the largest number of seats in Parliament and was charged with forming a government.

Arguing that the word “bloc” is ambiguous (the Constitution does not specify whether “bloc” refers to pre or post-election groups and the word itself can mean large or small coalitions), Maliki asked the Supreme Court to interpret Article 76 so that “largest Council of Representatives bloc” would be defined in terms of post-election coalitions that come together to form a government — giving Maliki the chance to reach agreement with other parties in order to create the “largest bloc” and therefore first crack at forming a government. In a disappointing reversal of the earlier (and more democratically principled) understanding of Article 76, the Supreme Court adopted Maliki’s reading of Article 76.

The Iraqi judiciary’s development over the past seven years is admirable and should be the envy of most other Arab judiciaries. One might even be tempted to give it a pass given the high stakes surrounding these elections – clearly emerging courts must pick their battles carefully, asserting too much strength and independence too soon could have long-lasting negative consequences. Still, one has to be disappointed with a decision that seems to favor the political establishment over the rule of law.

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A Step Backwards for the Iraqi Judiciary

The Iraq judiciary has made huge strides in its capacity and independence since the fall of the Saddam regime, making brave and politically unpopular decisions in the name of integrity and fair and impartial adjudication. In 200

The political turmoil over the Iraq elections was bound to touch the judiciary —
It could have been an opportunity for the judiciary to assert its independence and firmly establish itself as an

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Published on March 31, 2010
Author:          Filed under: Uncategorized