A couple years ago, my co-authors and I published an examination of constitutions drafted under foreign Occupation. We wanted to ask whether constitutions drafted under such circumstances differ in quality and endurance from other constitutions (the answers were generally not). But we also identified a theoretical problem with such constitutions. In general, one feature of constitutional success is that they be “self-enforcing”, meaning that it is in the interests of those powerful groups that live under it to maintain it. The risk of foreign occupation is that the constitutions will be externally enforced: while this might seem to be a good thing, external enforcmenet might induce local actors to act strategically in ways the actually undermine the constitution.
It seems to me that this describes the current situation in Iraq, still without a government several months after the election. Major pieces of legislation have not been passed. The continuing presence of the Americans (notwithstanding the sort of-almost-partial withdrawal earlier this month) means that the risks of political failure are reduced. This has allowed Iraqi politicians to play a game of chicken, in which each side refuses to back down in favor of the other, undermining the very functioning of the constitution as a basis for political life. Even if no agreement is reached, there are limits to the damage that either side will suffer—Iran will not invade, Kurdistan will not secede, and civil war will not erupt.
At the time it was drafted, Professor Nathan Brown argued that no constitution was better than this one; but perhaps the problem are not the particular institutional choices in Iraq so much as the structural circumstances of its drafting.
There has been much debate recently over a federal district court ruling that struck down part of Arizona’s controversial immigration law. The ruling essentially said that the Arizona law was preempted because this is an area of federal authority. The Court did not focus on the argument that the law invited racial profiling and other problems. At the same time, the idea is being floated that the 14th Amendment to the U.S. Constitution should be amended to deny U.S. citizenship to a baby that is born to illegal immigrant parents. Supporters of such an amendment even say the amendment’s original drafters would never approve of birthright citizenship. Supporter also argue that such children use up resources, and can become “anchor babies.” Some have even hypothesized these babies could be taken out of the country, trained to become terrorists, and then come back to commit crimes. There are many powerful counter-arguments. Some studies, for example, show that illegal immigrants pay taxes, and actually underutilize public resources. Moreover, the terrorist argument is a red herring according to some former FBI agents.
One very different argument could be made against this amendment derived from other countries such as India, Germany, and South Africa. The argument is that such a constitutional amendment would be unconstitutional. In some of those countries, courts have struck down constitutional amendments, that were passed through the accepted processes, because the courts reasoned the amendments were inconsistent with the most basic values of their fundamental charters. These values include human dignity and freedom. In the U.S. one could argue that this constitutional amendment proposal has similar flaws. As several U.S. Supreme Court cases indicate, laws enacted against groups based on irrational animus are not permitted. Such laws violate equality and dignity interests. Moreover, the Court in Plyer v. Doe held that the children of illegal immigrants cannot be punished for their parent’s misdeeds. The Court there struck down a Texas law as unconstitutional even though it did not burden a fundamental right or a suspect class. The law simply would have charged these children to go to school. Yet the Court concluded this could create a permanent underclass.
Denying birthright citizenship to the children of illegal immigrants would injure their dignity even more, and would also make them permanent second class citizens because of their parents’ actions. To be objective, the current U.S. Supreme Court would likely not find these arguments persuasive in response to passage of a birthright amendment. The amendment processes are treated as sacrosanct. But perhaps this is an area where racial animus and nativism is at play to such an extent, at least with many amendment supporters (though not all), that the Court should not be afraid to look at foreign constitutional law, as it has in some other cases. Perhaps the Court should consider such a draconian constitutional amendment to be unconstitutional.
Last week, the interim government of Niger announced a proposed amnesty for the country’s ruling junta in its new draft constitution. State radio channels hailed the action as the best possible outcome for the majority of “social and political forces.”
Although the text itself is still being finalized by the constitutional consultative council, the gist is that General Salou Djibo and his military allies would be protected from potential prosecution for their role in toppling the government of Mamadou Tandja. Mr. Tandja was overthrown in February of this year after taking controversial steps towards prolonging his official mandate despite the existence of constitutional term limits.
Ibrahim Yacouba, an official on the consultative council, was quoted by Radio France Internationale as arguing that the move was necessary and would ease the transition back to democracy when the junta voluntarily gives up control in March of 2011. Mr Yacouba also assured that it was not “the first time that such measures have been written into the constitution.” When asked if that, in itself, might pose a problem he assured that there was “no reason to fear that guaranteeing junta members amnesty would create a culture of impunity.”
Despite the councilman’s protestations however it seems clear that this “culture of impunity” is already in place. Niger’s history is rife with coups. For example, on April 9th, 1999 President Bare Mainassarra was shot dead boarding his plane in the capital city of Niamey and those behind the violent coup were granted amnesty – as had Bare Mainassarra himself when he came to power through coup in 1996. If this proposed amnesty is included it would mean that of the nation’s seven constitutions since independence in 1959, all save two (including the very first) will have included provisions for providing amnesty to those behind the dissolution of the previous government.
–Daniel Lansberg-Rodriguez, Caracas
The New York Times reports that India’s Congress Party is mulling a constitutional amendment that would guarantee a right to food. Some quick background info, not in the Times piece, to suggest that it might not be much of a surprise (or, as a practical matter, a big deal) if this were to happen:
(1) The Indian Constitution is easily and frequently amended, relatively speaking.
(2) When your constitution is already the longest in the world, running literally hundreds of pages, it becomes kind of hard to argue against loading up the constitution with “too much stuff.”
(3) Constitutional rights don’t all have the same effect in India as they do here. Yes, the Supreme Court of India is pretty vigorous when it comes to judicial review, but the Indian Constitution already contains a number of positive socioeconomic rights in Part IV’s “Directive Principles of State Policy,” which have been deemed judicially unenforceable, and presumably this right too would be placed in this section.
(4) At a global level, as an empirical matter, positive socioeconomic rights are becoming increasingly common, so in that sense, India would be in line with global trends to add another one. (The right to food, in particular, has become increasingly popular; whereas no constitution in 1946 contained such a right, about 15% do now. It’s also the case that the poorer the country (as measured by GDP per capita), the more likely it is to include such a right in its constitution. Those facts courtesy of a data set prepared by my co-author Mila Versteeg of the Centre for Socio-Legal Studies at Oxford.)
(5) And one last fact – in a manner of speaking, the Indian Constitution already contains something akin to a right to food; Article 47 (which falls under the judicially unenforceable Part IV) provides that the government “shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.”
For better or worse, the Constitutional Court of Bosnia and Herzegovina has for a long time been recognized as one of the most important actors in the integration of post-conflict Bosnian society. The role of the Court in such complicated legal and political circumstances is complex, particularly when its decisions can, and certainly do, have significant impact on political processes in the country. Thus, its struggle to maintain the authority and keep the legitimacy of judicial review, though certainly not unique, is challenging.
That struggle is not helped by the way the judges are selected. The Constitution of B&H provides that the Constitutional Court will have 9 judges, of which 6 (4+2) are selected by the legislatures of the two entities in Bosnia and Herzegovina (regarding which a constitutional custom has developed that the 2 coming from Republika Srpska will always be Serbs, while 4 coming from Federation of Bosnia and Herzegovina will always be Bosniaks and Croats), and 3 are selected by the President of the European Court of Human Rights after the consultations with the Presidency. The latter 3 cannot be citizens of B&H or neighboring countries. The only criterion is that the judges should be distinguished jurists of high moral standing. Judges serve until age of 70, unless they resign or are removed for cause by consensus of the other judges.
Judges are selected by the entities in a very untransparent manner, but more significantly they are often very prominent politicians form the party that has a majority, at that moment, in the parliament of the respective entity. Looking at just the latest selections, one recognizes famous faces in Bosnian politics, two former vice-presidents of their respective parties and one long time member. Needless to say, the discarding of their former political identities, so important when faced with legitimacy problems, can prove challenging.
The latest controversy arose earlier this year after a non-governmental organization came into possession of a letter written by a Serb member of the Court, Krstan Simić, who was a vice-president of his political party prior to selection, written to his former party leader, currently a Prime minister of Republika Srpska, expressing his objection to the fact that his former “boss” (he refers to him as such in the letter) does not “use his [Simić’s] experience and possibilities“ more often. He also explains that it is proving impossible to lobby the foreign judges, while the local judges are already influenced. He also uses the opportunity to council the Prime minister on certain selections in the administration (nepotism in action). After this correspondence was revealed in the press, Judge Simić wrote several interviews and organized a press conference stating that he has evidence of hidden criminality in the Constitutional Court.
After the relevant procedure, in which the judge had a chance to appear before the Court at its extraordinary session and to send his written response to the Recommendation for his dismissal, the Court unanimously adopted, on 8 May 2010, a Decision dismissing Judge Simić. The grounds were that he had intentionally damaged the image and the dignity of the Court, as well as the image and the dignity of the judge. After reiterating the principles of judicial independence and impartiality as foreseen in the European Convention on Human Rights, the Court stated that the letter not only indicates that Simić had not broken his ties with his former political party, but was rather initiating such contacts himself. For the Constitutional Court it was irrelevant that the letter was of private and not public nature, and that the Prime Minister might indeed be a personal friend of the judge. With regards to his subsequent public appearances, Judge Simić invoked his freedom of expression, but the Constitutional Court indicated that such freedom was not absolute, particularly citing paragraph 2 of the Article 10 of ECHR providing that the freedom may be restricted with the aim of “maintaining the authority and impartiality of the judiciary.” The Court further stated that judge Simić did not respect the presumption of innocence when iterating his allegations against the Constitutional Court, and should have turned to the relevant public prosecutor (which he never did) instead of the media, if he indeed had any evidence of his allegations.
Although I have certain reservations as to the Decision, I have personally been surprised at how effectively it resolved this issue. The Constitutional Court was certainly cognizant of the problems it has faced, for example related to the law enacted by the High Representative for Bosnia and Herzegovina, and by the constant calls for its abolishment by the political establishment of Republika Srpska (for reasons of different nature than one analyzed here). It remains to be seen if this will have any longer term consequences for the Court, although it is worth mentioning that Republika Srpska had not yet selected Simić’s replacement, more than 2 months after his dismissal, and Simić had stated that he would appeal the decision at the European Court of Human Rights.
— Nedim Kulenović, Faculty of Law, University of Sarajevo
The August 19, 2010 issue of the New York Review of Books contains an excerpt from U.S. Supreme Court Justice Stephen Breyer’s forthcoming book, Making Our Democracy Work: A Judge’s View. The excerpt discusses his view of constitutional interpretation in relation to the Supreme Court’s famous case endorsing an individual rights approach to the Second Amendment on gun control, District of Columbia v. Heller (2008). What is interesting about the discussion is his strong advocacy of proportionality analysis, his detailed focus on the facts (including empirical studies), and his pragmatism. Though much of this was apparent in his Heller dissent, it is more obvious now than ever that he is an advocate of the kind of proportionality used by many foreign courts. It’s also intriguing to see a U.S. Supreme Court Justice previewing a new book in such a fashion.
With over half of ballots counted, it looks like Kenya’s constitution will indeed be approved by the public. Consistent with pre-referendum polls, the yes position seems to have well over 60% of public support.
Remarkably, and surprisingly to many observers, the campaign before the referendum was carried out in a generally peaceful manner. Perhaps this will mark a new chapter in Kenya’s history, one of constrained government and effective protection of rights. Constitutional adoptions are indeed moments of hope for renewal. The tough work, of course, will only occur when this constitution comes into operation and elections are held, but there is much to be optimistic about, at least on paper. But these institutions will only be effective if there is a thoroguh housecleaning of the political class and judiciary, and there is not much to suggest that such will occur.