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

Japanese “constitutional” change


The Democratic Party of Japan continues its efforts to transform Japanese political practice toward greater congruence with formal demands of the Constitution. Secretary-General Ichiro Ozawa is plotting strategy for a major reform bill, described here, that would reduce the power of the Cabinet Legislation Bureau to appear in the Diet. As a corrolary this would reduce its power to offer authoritative interpretations of constitution. These interpretations have been crucial in adjusting constitutional understandings of the famous anti-war Article Nine.

Thanks to Craig Martin, who has some good writing on the constitutional issues surrounding Japan’s Article Nine available here.

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Published on January 7, 2010
Author:          Filed under: hp, Japan, Tom Ginsburg
 

Comparative Constitutional Law Events at the 2010 AALS Annual Meeting

I am looking forward to attending the 2010 AALS Annual Meeting, held this year in New Orleans, starting today, January 6, and running until Sunday, January 10.

For the convenience of readers, I have taken a moment to look through the program to highlight the comparative constitutional law events on offer at the AALS.

All events, listed below in chronological order, will be held in the Hilton New Orleans Riverside:

Roundtable Discussion on Comparative Scholarship
Thursday, January 7, 2:00-3:30pm
Grand Ballroom B, First Floor

Breakfast of Section on Comparative Law
Friday, January 8, 7:00-8:30am
Grand Salon Sections 4 and 7, First Floor
* In collaboration with other sections. Tickets sold in advance.

Transforming National Security Law: Comparative Perspectives
Saturday, January 9, 1:30-3:15pm
Jefferson Room, Third Floor

The following panel discussions may also be of interest:

Re-Examining Customary International Law and the Federal Courts
Thursday, January 7, 9:00am-12:00pm
Napoleon Ballroom, Third Floor

The Interpretation-Construction Distinction in Constitutional Law
Saturday, January 9, 10:30am-12:15pm
Napoleon Ballroom, Third Floor

The Freedom of Religion and Belief Jurisprudence of the European Court of Human Rights
Sunday, January 10, 9:00am-12:00pm
Jefferson Room, Third Floor

If I have overlooked any of the comparative constitutional law panels or activities planned for the AALS–and indeed I may have–please fill in the gaps for our readers.

See you in New Orleans!

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Published on January 6, 2010
Author:          Filed under: AALS, hp, Richard Albert
 

Indo-Pakistani Constitutional Convergence?

The distinctions in constitutional structure between India and Pakistan—not to mention their differences in political culture—are as sharp as they are numerous. To name but a few, India is a federal state tending toward decentralization in a parliamentary system whose constitution proclaims its commitment to secular democracy. In contrast, Pakistan is a federal state with centralizing tendencies organized around a semi-presidential system which aspires to a model of Islamic democracy.

But India and Pakistan also share a number of constitutional similarities. One in particular is their constitutional grant of plenary power to the national legislature to amend the text of the constitution. As long as the legislature musters the requisite majorities, neither section 368 of the Indian Constitution nor section 239 of the Pakistani Constitution appears to impose any substantive limitation on the content of constitutional amendments in India and Pakistan, respectively.

Constitutional comparativists will know that the Indian Supreme Court has effectively overridden this plenary grant of power by interpreting the Indian Constitution as held together by a “basic structure” whose constituent elements are forever immune to formal constitutional amendment. According to the High Court, the Indian Constitution folds within itself a number of unalterable principles, including constitutional supremacy, republicanism, federalism, secularism, and the separation of powers. As a consequence, Indian courts may invoke—and indeed have in the past invoked, most notably in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789—this “basic structure” doctrine to invalidate duly-passed constitutional amendments.

We may be witnessing the emergence of a similar doctrine in Pakistan.

In a recent case, the Supreme Court of Pakistan invalidated an amnesty that shielded Pakistani politicians and other public officials from criminal and civil prosecution. (For helpful background of this case, I recommend the short briefing materials here at the Jurist.)

This is a significant judgment whose impact may reverberate in far-reaching ways for years to come.

But what may perhaps be most interesting for constitutional comparativists is a very short passage in the opinion. Near the end of its decision at page 14, the Pakistani Supreme Court wrote matter-of-factly that “salient features of the Constitution i.e. Independence of Judiciary, Federalism, Parliamentary form of Government blended with Islamic provisions, now have become integral part of the Constitution and no change in the basic features of the Constitution, is possible through amendment … .”

It is too soon to know whether the Pakistani Supreme Court intended to lay the foundation for something approximating the Indian basic structure doctrine. But that is certainly one plausible reading of this judgment—a judgment which could prove to be a pivotal moment in the constitutional evolution of Pakistan.

With that, let me thank Tom for inviting me to participate in this blog on comparative constitutionalism. It is an honor and a pleasure to join the team of scholars here, and I look forward to contributing to the conversation.

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New blogger on the site

I’m pleased to announce that Richard Albert of Boston College Law School has joined our ranks of bloggers. Professor Albert is one of the leading young scholars of comparative constitutional law in the United States. He’s published a number of papers, including an excellent article in the American Journal of Comparative Law on the fusion of presidential and parliamentary forms of government. Welcome, Richard!

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Published on January 3, 2010
Author:          Filed under: Uncategorized
 

Constitutional Hotspots for 2010?

I wonder if readers have thoughts on what locations will be likely to experience a constitutional crisis of some kind in 2010. Many of those that have had ongoing difficulties in the past year (Niger, Honduras, Zimbabwe) are likely to continue. Here are some other possibilities:

Thailand’s deep political divisions have not been resolved, and if by chance His Majesty King Bhumibol Ayuldeyej happens to pass to the next world, the situation may become even more volatile. (Shameless plug–I’ve recently written about it, and things have not stabilized.) One sign of underlying instability is that prosecutions for lese majeste–insulting the monarchy, still a serious crime in Thailand–are up from 17 in 2005 to at least 60 a year now. With ousted Prime Minister Thaksin Shinawatra now ensconced next door in Cambodia, there is mischief to be made. Of course, to predict constitutional instability in Thailand is like predicting snow in Chicago in winter.

2) Palestinian elections scheduled for this month have been postponed after Hamas refused to participate. What exactly is the legal status of the government? With the peace process at a standstill and continued conflict between Hamas and Fatah, it seems unlikely that any resolution or new constitutional agreement is in the offing.

3) Sudan: In one year, as per the 2005 Naivasha Agreement, the southern Sudan will have a referendum on whether or not to become independent. There have been significant disputes over the ground rules for the referendum, mostly resolved. But will the central government really tolerate the separation of such a significant amount of its territory?

I’m sure there are many oter possibilities out there as well.


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Published on January 2, 2010
Author:          Filed under: hp, hp; Tom Ginsburg, Palestine, Sudan, Thailand
 

The ECHR and ethnic discrimination in the Bosnia and Herzegovina constitution

The European Court of Human Rights had a holiday gift for Bosnia and Herzegovina’s smaller minority groups today. The story is widely reported; Deutsche Welle has coverage here. The court ruled that provisions of the country’s post-conflict constitution are discriminatory in violation of the European Convention on Human Rights. The suit in question, Sedjic and Finci v. Bosnia and Herzegovina [follow this link to retrieve the decision by name], was brought by two prominent politicians–one a Bosnian Jew, the other of Roma origin–who are both ineligible to serve as either members of the House of Peoples (the second legislative chamber) or co-presidents on account of their ethnicity. Both sets of offices are reserved for members of Bosnia and Herzegovina’s “constituent peoples”–namely, Bosniacs, Croats, and Serbs. (The presidency is a three-member body for which membership in one of three ethnic groups is a prerequisite. Here’s the actual offending language from Article V of the constitution of Bosnia and Herzegovina: “The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.”)

In the face of this sort of language, it is not difficult to see how the court reached the conclusion that it did. These sorts of explicit ethnic set-asides are not only literally discriminatory, but they also discriminate against groups that have historically suffered more than their fair share of abuse. The Strasbourg court can hardly be blamed for discharging its obligations under the Convention and, indeed, the Bosnian constitution, which provides explicitly that the Convention “shall apply directly” and “shall have priority over all other law.” (Logically, there would not seem to be any barrier to a constitution proclaiming its own inferiority to some other legal instrument, such as the Convention, but the effective result–namely, the use of one part of a constitution to strike down another part–is at least superficially a bit paradoxical.)

As the court itself acknowledged, though, the story is a bit more complicated than that. The goal of writing a workable constitution for a deeply divided post-conflict society is not an easy one, and there is a limited repertoire of theoretical approaches and practical tools for doing so. One of the best-known approaches is the theory of consociational democracy championed by UCSD’s Arend Lijphart. Lijphart has long argued for power-sharing in the form of divvying up public offices in such a way that all relevant groups are represented and thus have a stake in upholding the constitutional order.

The Strasbourg court is clearly aware that the Bosnia-Herzegovina constitution reflects a bargain among opposing forces, but it just as clearly takes a dim view of that bargain. It makes a point of mentioning that the constitution was drafted and adopted as part of the Dayton Accords “without the application of procedures which could have provided democratic legitimacy,” and that the specific provisions in question were included at the insistence of the parties to the conflict, notwithstanding the expression of human rights concerns by the international mediators involved. From the perspective of consociational democracy, however, the fact that the ethnic set-aside provisions were sought by the parties to the conflict is no reason to invalidate them. It suggests, instead, that those provisions may be crucial to the survival of the constitution as a whole.

Consociational democracy is not the only approach to constitution-building in post-conflict societies, and some scholars have argued vigorously that it is far from the best, but it is certainly a plausible one. Unfortunately, discrimination would appear to be an inevitable byproduct of setting aside high public offices on the basis of ethnicity or religion. Do the ends justify the means? Is it imprudent to rule such approaches entirely out of bounds on human rights grounds? Does the fragile nationhood of Bosnia and Herzegovina potentially rest upon the answers to these questions? These are not easy questions.

And on that upbeat note … happy holidays everyone!

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The Irish SC and Gay Rights

Last week the Irish Supreme Court handed down a significant decision in relation to the rights of gays and lesbians living in Ireland. In McD v. L [2009[ IESC 81, the Supreme Court held that in a dispute over legal guardianship and access, a male biological parents (and sperm donor) was in principle entitled to statutory rights of access, even though this ran contrary to a prior agreement with a child’s current parents and guardians (lesbian couple) and their wishes. (The issue of the child’s actual best interests was reminded for further determination by the High Court). The decision is obviously significant for what it does not do for the recognition of same-sex relationships in Ireland, but also for the scope for national-transnational “dialogue” under the European Convention on Human Rights. Contrary to the High Court, the Supreme Court held that the right to family life under Art 8 of the Convention was not relevant to the interpretation of the relevant statute, and in any event, according to some justices, as of now Strasbourg jurisprudence did not extend to recognizing same-sex couples and their children as a family unit entitled to de facto protection under Art 8. It was also not for the Irish High Court, according to these justices, to “anticipate” where Strasbourg jurisprudence might go in this context in the future (see e.g. Fennelly J. par 94).

–Rosalind Dixon

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UKSC rules on Jewish school admission criteria

As the New York Times and other media outlets report, on Wednesday, Dec. 16 the newly established UKSC released its landmark ruling in a case involving apparently discriminatory admission criteria by a Jewish school in North London. According to the traditional Orthodox Judaism definition, a person may be recognized as Jewish only if his or her mother was Jewish, or if he or she converted to Judaism via Orthodox conversion practices. A 12-year old applicant to the said Jewish school comes from a devout Jewish family, where the father is Jewish and the mother converted to Judaism via non-Orthodox (and thus supposedly more lenient) conversion process. There was no doubt about their substantive adherence to Jewish traditions. The school refused to admit the applicant on the basis of his questionable Jewishness, at least by the school’s Orthodox definition of “who is a Jew”. The UKSC applied extra-religious, general law equality norms to a religious community’s own membership criteria, thereby ruling that the school’s selective admission policy was unjustly discriminatory.

A broadly similar “who is a Jew” question has haunted Israeli constitutional law for decades. For a host of historical and political reasons, the Orthodox stream of the Jewish religion has long enjoyed the status of being the sole branch of Judaism formally recognized by the state. This exclusive status has enabled the Orthodox community to establish a near-monopoly over the supply of public religious services, and to impose rigid standards on the process of determining who is a Jew – a question that has crucial symbolic and practical implications as, according to Israel’s Law of Return, Jews who immigrate to Israel are entitled to a variety of benefits, including the right to immediate full citizenship. This has taken place while over two thirds of the world’s Jewry, on which Israel relies for essential symbolic, material, and strategic support, continues to live outside of Israel, and does not subscribe to the Orthodox stream of Judaism. As things now stand, the Israeli Supreme Court has recognized non-Orthodox conversion to Judaism performed outside of Israel but is yet to OK such conversions performed within Israel. In 2005, the Court recognized non-Orthodox ‘bypass’ conversions to Judaism performed de jure abroad. It held that a person who came to Israel as a non-Jew and, during a period of lawful residence there, underwent conversion in a recognized Jewish community abroad would be considered Jewish. This legitimized a practice referred to as “leap conversions” whereby residents of Israel may go abroad for a few days, undergo non-Orthodox conversion, and return to Israel as converted. So if you happen to think that American constitutional law of religion is somewhat convoluted, think again . . .

RH

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Published on December 17, 2009
Author:          Filed under: Israel, Ran Hirschl, religion, United Kingdom
 

The Church and Constitutional Fidelity

Nearly a month ago, the Wall Street Journal carried an interesting story on the role of the Catholic Church in the Honduran constitutional crisis. The Church, as it turns out, supported the coup (a highly contested word in this context, I know) for which they received a fair amount of criticism from Zelayistas. In the WSJ interview, Honduran Cardinal had this to say:

“In our communiqué immediately following the event,” he explains, “we were
saying this was a constitutional removal of the president, and that we have to
learn from the mistakes, and we were calling for the reconciliation of the
country. That’s all that we did, but that very same day we were blamed as
golpistas, golpistas.”

Of course the role of the Church in Latin American politics has always been an intriguing question. The church is often charged with favoring the right (as opposed to “godless communism”) during the many of the cold war battles, but at other times (especially in Central America and especially the jesuits) it has supported the progressive causes of the left in the battle against inequality and poverty.

In the Honduran case, the Church seems to have taken a position on legal philosophy, suggesting that the constitutional text and its edicts should be supreme. Indeed, the Cardinal even lauded the military for protecting the document: “Now the army is respected, because they have dedicated themselves to the constitutional role of defending the law and the borders.” If we assume that the Cardinal’s position towards the constitution is not simply politics disguised as legal interpretation, then it raises some interesting questions.

Specifically, for me it recalled Sandy Levinson’s vivid distinction between a Protestant view of constitutional interpretation and the Catholic one in his book, Constitutional Faith. In broad terms, the Protestant view of interpretation is one that stays close to the text but allows nearly anyone to interpret it. In the Catholic view, the text is subordinated to official interpretation (doctrine), which is produced by a specific and hierarchical set of officials. It is interesting, then, — if only for kicks — to wonder how whether the Catholic clergy tend to adopt the same sort of interpretive philosophy in the political realm as they do in the religious one.

In the Honduran case, one would be tempted to see the Cardinal’s view as highly textualist since he supports the defense of the term limit imposed by the founders. However, it is also possible that the Cardinal is even more swayed by the Honduran Supreme Court’s affirmation of the term-limit provision (or even the army’s action!), in which case the Cardinal would be acting in a very “Catholic” way by deferring to doctrine. Perhaps another case, in which the text and doctrine are at odds, would provide us with a better answer as to the relationship between processes of political and religious interpretation in the church.

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Published on December 14, 2009
Author:          Filed under: constitutional interpretation, honduras, hp, religion, Zachary Elkins
 

Turkey’s Constitutional Court bans pro-Kurdish party

Under the 1982 Turkish Constitution, Turkey’s Constitutional Court – a stronghold of Kemalist-statist interests and an active defender of Turkey’s militant secularism – is vested with the power to order the closure of political parties whose agenda is found to be “in conflict with the indivisible integrity of the State with its territory and nation, human rights, national sovereignty, and the principles of the democratic and secular Republic” or when “the internal functioning and the decisions of political parties [is] contrary to the principles of democracy” (Article 143).

On Friday, December 11, the Court voted to shut down the pro-Kurdish Democratic Society Party (DTP) and banned dozens of members from joining other political parties for five years. It also expelled two of the party’s politicians, including Ahmet Turk, the DTP leader, from parliament. Various media outlets report that the court found the party guilty of co-operating with the Kurdistan Workers Party (PKK), which has been fighting for autonomy in Turkey’s mainly Kurdish southeast. The detailed reasoning for ruling has not yet been published. However, the Turkish newspaper Hurriyet reports that Hasim Kilic, the Constitutional Court CJ, said the party’s closure “was decided due to its connections with the terror organization and because it became a focal point of the activities against the country’s integrity.”

Over the last 26 years, reports our colleague Hootan Shambayati who studies Turkish constitutional politics at Bilkent University, Ankara, the Turkish Constitutional Court has ordered the closure of political parties on 19 occasions (seventeen of those since 1991). While some of these closures were based on technical grounds (e.g. parties’ failure to comply with certain bureaucratic standards), others were based on ideological grounds. For example, the Court dissolved several pro-Kurdish parties, and, most notably, two major Islamic parties – the Welfare (Refah) Party (1998) and the Virtue (Fazilet) Party (2001). In February 2003, the European Court of Human Rights dismissed an appeal against the Court’s ruling in the Refah dissolution case and concurred with the Court’s view of Shari’a norms as incompatible with core principles of democracy. In April 2008, the Court agreed to hear a challenge to the very constitutionality of the moderately religious AKP – Turkey’s ruling party over the last few years. In a widely publicized decision issued in July 2008, the Court came very close to banning the AKP but stopped just short of doing so; six of the eleven judges, one vote shy of the necessary seven votes, found the AKP platform unconstitutional. In so doing, the judges signaled that no further “Islamization” will be tolerated by the Court and by its secular and military establishment backers.

The ruling is not likely to be endorsed with open arms by the European Union, which had warned Turkey that banning the DTP would violate the rights of the Kurdish minority. Ironically, as one of my students suggested to me, it is quite likely that the Turkish Constitutional Court based its reasoning, at least in part, on the ECtHR. CJ Kilic recently said that: “A political party has to make a distinction between pro-terror and peaceful messages. The European Court of Human Rights is clear on this point.” CJ Kilic seems to refer to the ECtHR reasoning in the Herri Batasuna v. Spain case (July 2009), where it upheld the Spanish Constitutional Court’s ban on the Basque Batasuna party and its proxies for its assumed association with – and failure to condemn – a terrorist organization (ETA) despite not having acted illegally itself. These pro-ETA parties, ruled the ECtHR “contradicted the concept of a ‘democratic society’ and presented a major danger to Spain’s democracy.” The analogy between the two cases is questionable in many respects, so it’d be interesting to see whether the Turkish Constitutional Court actually cited the ECtHR’s Batasuna decision. If it did, as my student suggests, that would mean the ECtHR’s defense of democracy in one country (Spain) might have had a negative effect on democracy in another (Turkey).

RH

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Published on December 12, 2009
Author:          Filed under: European Convention on Human Rights, Ran Hirschl, Turkey