Blog of the International Journal of Constitutional Law

New paper by Kay: Constituent Authority

Richard Kay of the University of Connecticut Law School has posted a new paper, Constituent Authority, on SSRN. Its an interesting analysis of constituent power and its effect on constitutional endurance.

The force of a constitution, like the force of all enacted law, derives, in significant part, from the circumstances of its enactment. Legal and political theory have long recognized the logical necessity of a “constituent power.” That recognition, however, tells us little about what is necessary for the successful enactment of an enduring constitution. Long term acceptance of a constitution requires a continuing regard for the process that brought it into being. There must be, that is, recognition of the “constituent authority” of the constitution-makers. This paper is a consideration of the idea of “constituent authority” drawing on a comparison of various constitutional systems.

Since a constitution occupies the highest rank in a legal hierarchy, the constituent authority that creates it cannot derive from some prior legal authorization. It is true that the establishment of constitutions is commonly associated with the rhetorical invocation of some legal authority but a truly new constitution, the promulgation of a fundamentally different legal order, must be grounded in economic, social, religious or political values. Constituent authority cannot be legal authority.

The predominant constituent authority in the world today is that of the “people.” Its appeal is founded on the political value of self-government, the idea that every form of collective coercion must be justified by the consent of those subject to it. The translation of this general recognition in the actual creation and operation of constitutions, however, is freighted with difficulties. There is no algorithm for identifying the human beings who share sufficient connections to qualify as a people. Even if we are able to identify an appropriate population, the process of creating a constitution requires the specification of surrogates who may act on its behalf. The institutional substitutes for the people involve various combinations of legislatures, constituent assemblies and referenda, all of which are problematic in various ways. Many successful constitutions, moreover are the product of elite negotiations among representatives of various interests and the process of agreement can be said to represent the agreement of the undivided people only in the most attenuated sense.

The facts that, notwithstanding these difficulties, constitutions are written, implemented and remain largely effective and that they are unreflectively attributed to the will of the people, tells us something important about the nature of constituent authority. Constituent authority is a fact but it exists not only at the time of enactment but at every moment during which a given constitutional system is effective. The way the constituent events are perceived in a legal system can, and often does, change over time in response to changing views about the proper bases of political authority. Constituent authority, therefore, is the resultant of the interaction of current values and the perception of historical events.

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Published on November 9, 2010
Author:          Filed under: hp

Zimbabwe process sputters along

Earlier this year, David Law commented on next year’s constitutional referendum in Zimbabwe and on the potential ramifications for civil rights in that country. With November deepening however, and the vote approaching, it is time to look at Zimbabwe’s constitutional chaos from another angle – separation of powers.

Even for a country located in a neighborhood where poverty, violence, instability and AIDS are rampant – Robert Mugabe and his cronies in Harare have set a standard for bad governance in the region. Instability is everywhere, poverty is increasing, and after ten years of hyperinflation the Zimbabwean Central Bank recently had to drop twelve zeros from a currency valued in trillions to the dollar.

Zimbabwe’s current constitution dates from 1980 and has been amended twelve times. Unsurprisingly, the reccuring theme in those amendments has been a steady consolidation of executive power and a strengthening of the presidency vis-à-vis the other powers.

Mugabe has been the sole beneficiary of this policy, having ruled the country since Zimbabwe stopped being Southern Rhodesia – as Prime Minister (1980-1987) and then as President (1987-onwards.) For most of that time he has governed it in a brutally autocratic way, unconstitutional even by the extremely executive friendly standards outlined above.

In 2008 Mugabe had a close call however. He and his ZANU-PF party lost a first round election to Morgan Tsvangirai of the Movement for Democratic Change (MDC). Although the MDC was violently suppressed with the full fury of the state apparatus, and Tsvangirai withdrew before the next round, the damage was done. International opinion, always weary of Mugabe, became a caustic whirlwind of cries for his removal and the African League began openly discussing possible action.

To stem the tide Mugabe negotiated – eventually acquiescing to a power sharing agreement between with the MDC and a somewhat vaporous prime ministerial position for Tsvangirai. Another term of the agreement was a new constitution.
The governmental body in charge of overseeing this undertaking is COPAC (Constitution Parliamentary Select Committee) which set up a “constitutional outreach” program. Hundreds of meetings with interest groups and professionals were held across the country, although the process was predictably plagued by violence, logistical troubles and corruption until its recent suspension. Despite the expense and political capital placed into the outreach program, most Zimbabwe watchers think that the eventual draft will be a compromise cobbled together between the ZANU-PF, the MDC and minor unity government parties – essentially icing over a rotten core.

To keep this from happening, the Law Society of Zimbabwe (LSZ) has submitted a draft of their own model constitution to COPAC calling for sweeping reforms tantamount to a complete restructuring of the government. The group, a Zimbabwean amalgam of a bar association and a lawyers union, hope that the committee takes their proposal into account when penning the real thing.

The LSZ constitution seeks to greatly dilute the power of the presidency, which it rightly claims “creates tyranny.” The prime ministership would be strengthened, popularly elected and serve as the executive head of the government, subject to term limits and votes of confidence. The weakened presidency would be appointed by The Senate and remain as a head of state, appointing judges, ministers and signing off on legislation but under the congressional direction. Security services, prisons, the army and the intelligence services – all of which have been appendages of Mugabe’s abusive reign – would pass to civilian control with managers being appointed by the legislature. Finally, the state as a whole would be decentralized with locally elected provincial governors operating with relative autonomy.

Although COPAC has yet to acknowledge the LSZ constitutional draft beyond the fact of its having been delivered, it would do well to take it into close consideration. Such a government structure would be a good one for Zimbabwe, and would go a long way towards legitimizing the structures of governance. Once that takes place Zimbabwe can begin the slow process of de-Mugabization necessary to pull Zimbabwe up from its current state as a broken nation. When this happens civil rights are likely to follow as they did in Chile, Spain and South Africa – to name but a few.

~ Daniel Lansberg-Rodriguez

For further reference:
* The current constitution of Zimbabwe can be downloaded at this website:
** The Electoral Institute for the Sustainability of Democracy in Africa website has a concise chart that lays out the extent to which the Zimbabwean government is dominated by the presidency.

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Published on November 8, 2010
Author:          Filed under: Daniel Lansberg-Rodriguez, hp, Zimbabwe

Socio-Economic Rights Decline

In late 2009, several of the South African Constitutional Court’s most famous Justices were scheduled to step down. They still had to write opinions in some difficult socio-economic rights cases. To the surprise of many legal scholars, they authored opinions which appear to put the brakes on the development of a transformative socio-economic rights jurisprudence. During my trip to South Africa several weeks ago, I did not meet a single legal scholar who agreed with these decisions. Yet the well respected Justices have been defending the cases vigorously since leaving the bench. Perhaps this is just the typical scholar-jurist divide that many countries experience. For example, in the U.S. years ago, Judge Harry Edwards of the U.S. Court of Appeals for the D.C. Circuit famously criticized the impracticality and irrelevance of much legal scholarship.

The most noteworthy case is perhaps Mazibuko v. City of Johannesburg (Oct. 8, 2009) authored by Justice Kate O’Regan, a former academic. The issue in part was whether Johannesburg’s policy of generally installing pre-paid water meters in Phiri, a poor part of Soweto, was unconstitutional. The South African Constitution contains a right to water provision. What I suspect made the case hard for the Court was that Johannesburg undoubtedly was taking action to make the water situation better. Moreover, the city needed some way to recover more funds from customers. Yet the decision was surprisingly formalistic. The Court unanimously adopted the most deferential interpretation of the Constitution’s reasonableness requirement. The Court further said that the stoppage of water at a pump was not a “discontinuation”, triggering certain legal obligations, but merely a temporary suspension. The Court recharacterized some of its earlier socio-economic rights cases in narrow terms e.g. saying those cases did not involve courts imposing affirmative obligations but instead involved removing negative obstacles. This is not correct. Finally, the Court seemed unsympathetic to the fact that there was still not enough free water available for many families or to fight fires in the shanty towns. Instead, the Court was quite pleased that the city had engaged in meaningful consultations with members of the community. Proceduralization trumped substantive justice, presumably based on separation of powers concerns. This is a troubling development.

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Published on November 4, 2010
Author:          Filed under: hp, Mark Kende

Time-bar restrictions held to be reasonable and justifiable limitation of the right of access to court

In Road Accident Fund and Another v Mdeyide (CCT 10/10) [2010] ZACC 18 (30 September 2010) the South African Constitutional Court upheld an appeal against the high court’s declaration that the time-bar provision contained in the legislation regulating the affairs of the Road Accident Fund was unconstitutional.

The time-bar clause under scrutiny stipulates that claims against the Fund (created to compensate road accident victims) must be instituted within three years of the date of the accident for which compensation is claimed. Thus prescription runs irrespective of a person’s knowledge of the existence of the Fund and the requirements for the institution of a claim. This time-bar provision is more restrictive than the general statutory prescription provision which incorporates a knowledge requirement.

The applicant before the Constitutional Court was a disabled, illiterate man who had no knowledge of the Fund until 6 months after a road accident in which he was hurt. After his initial consultation with an attorney, the applicant could not be found which resulted in his claim being filed 3 days late. In subsequent litigation the Road Accident Fund raised a plea of extinctive prescription based on the time-bar provision. The high court, of its own accord, raised the issue of the constitutionality of the time-bar provision and held that the provision constituted an unjustifiable limitation on the right of access to court by not incorporating a knowledge requirement and by not providing for possible condonation in the event of non-compliance.

The majority of the court (7 of 11 judges) confirmed the inconsistency between the general prescription provision and the time-bar provision contained in the legislation. But it held that the difference was justified by the purpose of the Road Accident Fund legislation. The time-bar provision indeed amounted to a limitation of the right of access to court which is fundamental in a constitutional state based on the rule of law but it was justified under section 36 of the Constitution – the general limitation clause. The majority engaged in a proportionality analysis, weighing up the effect of the prescription and the strict terms of the time-bar clause against the generous time period of three years within which the claim had to be instituted. It acknowledged that this analysis had to be conducted against the background the vulnerability of potential claimants who lack the knowledge and the skill to pursue claims against the Fund but concluded that the constitutionally defensible purposes served by the time-bar outweighed the impact of illiteracy and poverty on potential claimants’ ability to institute proceedings against the Fund.

The minority noted that knowledge of the facts giving rise to the claim formed part of the right. It emphasised the social context within which the legislation operates and highlighted the transformative nature of the South African Constitution and characterised the legislation regulating the Fund as social legislation contributing to transformation. The impact of the absence of the knowledge requirement in the time-bar provision on the vulnerable members of South African society is manifest, and in the view of the minority justified a conclusion that the time-bar provision was unconstitutional.

It would seem as if the minority judgment is more in keep with the spirit of transformation of the South African Constitution.

–Rosaan Kruger, African Network of Constitutional Lawyers

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Published on October 25, 2010
Author:          Filed under: ANCL, hp, south africa

South African Constitutional Court Building

I spent the last few weeks giving lectures at several South African law faculties on socio-economic rights issues, and on my book “Constitutional Rights in Two Worlds: South Africa and the United States.” I will write several posts about what I learned from my South African colleagues. One of the most interesting things I did during this trip was visit the beautiful Constitutional Court building, which is relatively new. Built at the location of a former prison, the architecture is designed to remember the past and push forward to what is hopefully a promising future. Parts of the building even include leftover parts of the prison. The design emphasizes the use of large amounts of glass to symbolize transparency, beautiful art work with themes related to justice and oppression, and the rejection of an image of the law as distant and awe inspiring. It is quite a contrast to the U.S. Supreme Court building, as others have noted.

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Published on October 22, 2010
Author:          Filed under: hp, Mark Kende

Constitutional Restrictions on the Freedom of Testation in South Africa

The Supreme Court of Appeal in South Africa in The Curators Ad Litem To Certain Potential Beneficiaries of the Emma Smith Educational Fund v The University of Kwa Zulu Natal [2010] ZASCA 136 (1st October 2010) dismissed an appeal against a judgment that set aside a racially restrictive clause limiting the beneficiaries of the Emma Smith Educational Fund to white women. The fund was established by a bequest to the then-Natal University College in the will of Sir Charles George Smith, an industrialist and politician who died in 1941. The trust was for the higher education of ‘European girls born of British South African or Dutch South African parents’, resident in Durban for at least three years. The university applied to the High Court to have the racially restrictive clause removed and the residential qualification of ‘Durban’ amended to ‘Ethekwini Municipality’. With respect to racially restrictive clause the University contended that it is contrary gto public policy and is in conflict with public interest. The curators ad litem for the fund appealed to the SCA, but the panel of five judges unanimously held that there was a constitutional imperative to remove racially restrictive clauses in conflict with public policy but denied the change of name from ‘Durban’ to ‘Ethekwini Municipality’. With respect to the racially restrictive clause, the SCA noted that since the Bill of Rights applies to all law including the law relating to charitable trusts there can be no question that in the public sphere a racially discriminatory testamentary disposition cannot pass constitutional muster. The Court accordingly held that the constitutional imperative to remove racially restrictive clauses that conflict with public policy from the conditions of an educational trust intended to benefit prospective students in need, administered by a publicly funded educational institution such as a university takes precedence over freedom of testation particularly given the fundamental values of the SA Constitution. The Curators had argued that amending the trust will breach the freedom of testation and have a chilling effect upon future private educational bequests. It would appear from the judgment that had the trust been made in favour of a private educational establishment the apparently racially restrictive clause may have been upheld.

— Enyinna Nwauche, African Network of Constitutional Lawyers

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Published on October 18, 2010
Author:          Filed under: ANCL, hp, south africa, testacy

Courting Trouble in Pakistan: the Next Chapter

The tug-of-war between the Supreme Court of Pakistan and that country’s executive continues. In 2007 Pervez Musharraf sacked the court’s chief justice and two associate justices for openly opposing the erstwhile dictator’s seizure of emergency powers. Within hours of the dismissal throngs of lawyers had taken to the streets in protest, exacerbating the crisis and precipitating Musharraf’s own fall and the restoration of Pakistani democracy. Since then, the Supreme Court has set the mark for independence in a neighborhood which, as pointed out by Dominic Nardi on a previous posting in this forum, already has an impressive history of suo moto judicial activism.

In late 2009 the Supreme Court again made headlines when it threw down a gauntlet against President Asif Ali Zardari by publically opposing a controversial amnesty granting the president and his allies immunity from prosecution. Since then tensions have continued to rise as the court has embarked on a quest to ferret out corruption in the executive and legislative branches, a move welcomed by the opposition as necessary, and decried by the government as being deliberately obstructionist.

Things came to a head this week when the high court, frustrated by government obstacles to their corruption probe, put Zardari’s Prime Minister on notice that he would likely be held in contempt for his overuse of dilatory procedures over the last year. Furthermore, the court may seek to strip Zardari himself of presidential immunity thus exposing him to criminal prosecution. Shortly after the court made these statements, a rumor leaked out that the president might move against the court by dismissing some of the more troublesome judges. The court was quick to respond that such an action would be in “direct violation of the constitution” and “tantamount to high treason.”

Article VI of the Pakistani constitution defines “High treason” as follows:.
(1) Any person who abrogates or attempts or conspires to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.
(2) Any person aiding or abetting the acts mentioned in clause (1) shall likewise be guilty of high treason.
(3) [Majlis-e-Shoora (Parliament)] shall by law provide for the punishment of persons found guilty of high treason.

Whether the Supreme Court would have the jurisdiction or institutional strength to enforce a move against the executive or the legislature (even in the name of preserving the constitution) is questionable however. Furthermore institutional clashes over separation of powers create dangerous vacuums which throughout Pakistani history have often led to military interventions or out-and-out coups.

It follows that this escalating clash between an empowered judiciary fiercely asserting its independence and an embattled president defending himself and his allies from prosecution is a problematic one for Pakistan. On the one hand, the Zardari administration is almost certainly corrupt and the trail of blood and money likely leads into the highest echelons of government power. On the other, the activist court does destabilize a flawed but elected government, one whose failure might fatally weaken the Islamic nation’s fledgling democracy. To insure this democracy’s survival, it will be necessary for both sides to make sacrifices, watering down their institutional agendas in the name of stability and continuity.

–Daniel Lansberg-Rodriguez

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Published on October 17, 2010
Author:          Filed under: Daniel Lansberg-Rodriguez, hp, Pakistan

Call for Papers from African Network of Constitutional Lawyers

The African Network of Constitutional Lawyers has issued a call for papers for its annual conference, to be held in Rabat, Morocco 2 – 5 February 2011. The theme this year is “The Internationalization of Constitutional Law”

From the call: “Constitutional law has always been subject to multiple foreign and international influences but the process has accelerated over the past two or three decades. For instance, the international community may be involved in the resolution of domestic conflicts and influence the reshaping of the state, international human rights conventions impose obligations on the way states deal with their citizens, regional bodies such as SADC, ECOWAS and EAC shift final decision making power from domestic courts to regional courts, international aid affects domestic affairs, including constitutional design, and so on.

The main purpose of this conference is to consider the ways in which the international community and international law influence constitutional law in Africa and the implications of this phenomenon.

There will be three sub-themes:

I – “International control of elections: the impact on Africa’s transitions”

Free and fair elections are essential to constitutionalism and good governance. They also often present dangerous moments for democracy because of fierce competition for power. International influence (or control) of elections may take many forms. International standards for electoral processes have been developed and these may be followed by domestic electoral bodies. But, the international community and foreign actors are not necessarily neutral in African electoral politics.

Papers presented in this subtheme may examine any aspect of the internationalization of elections.

II – “How should African legislatures perform in a transitional context?”

In constitutional theory legislatures are intended to enact legislation and provide some control on the executives. In practice this is very difficult because the executive commands the power of the state. Legislatures face particular challenges to fulfill their mandates in times of transition when constitutional government is still insecure and the roles of the legislature and executive are being formed.

This subtheme explores the role of legislatures in two types of transition:
(i) Transitions involving fundamental regime change: What role do legislatures have in shaping the future democratic order when countries move to a democratic order? Can legislatures constrain new undemocratic powers? What mechanisms can legislatures use to develop accountable government at times of transition? How are legislatures influenced by the international community? Is this influence good or bad?
(ii) Transitions after regular elections: Legislatures play a role in maintaining stability after a government is voted out of power and a new government is elected. What are the specific challenge in these times?

Papers presented in this aspect may address either of these roles of Parliaments.

III – “International influences on constitutions and constitutional law in Africa”

Constitutions and constitutional jurisprudence have always drawn on ideas from many sources. But globalization has increased the flow of ideas among jurisdictions and the increased dependence of states on one another has increased foreign pressure on states to conform to international (and foreign) standards and values. Constitution-making processes are modeled on experience in other countries, Bills of Rights have been expanded to include new rights, independent institutions have been established to curb executive power and judges use decisions from foreign countries in their decision-making.

There is debate in Africa as elsewhere about whether or not external influences on constitutions and constitutional law are good, how successful “transplants” from other countries are, how much attention judges and other decision makers should pay to international standards and ideas from other countries and so on.

Papers in this sub-theme may consider examples of international influences on African constitutions and constitutional jurisprudence, how African jurisdictions have domesticated new ideas, whether there is a difference between jurisdictions (and Francophone, Lusophone and Anglophone countries) in the reception of foreign ideas, and the dangers and benefits of international influences etc.

Proposals for papers should be submitted to Vanja Karth ( by 30 October 2010.

Other sessions at the Conference

In addition to sessions dedicated to the theme of the conference, there will be four other activities:
(i) An open session for which papers on any constitutional law matter will be accepted. Although this session will provide people who are working on matters unrelated to the theme to present their work, if we receive too many submissions, preference will be given to papers with a link to the general theme. Papers for this session should be submitted to Vanja by 30 October 2010

(ii) A session of the ANCL Working Group on Social and Economic Rights in Africa. To present a paper at this session please contact Kristina Bentley (

(iii) A session of the ANCL Working Group on the Right of Access to Information. The title of this session will be:
“Constitutionalizing the Right of Access to Information: What does the ‘international growth in transparency legislation’ tell Africa about opening up government?” To present a paper at this session please contact Vanja Karth (

(iv) A practical workshop run by the Working Group on Teaching Constitutional Law in Africa. This workshop is likely to take the form of a workshop on teaching constitutional law and will be scheduled either immediately before or immediately after the Conference. Details will be circulated soon.

All papers accepted for presentation at the conference must be submitted to Vanja Karth by 15 December 2010.

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Published on October 13, 2010
Author:          Filed under: ANCL, hp

American Miranda Rights in Canada

In a judgment that is certain to breed controversy, the Supreme Court of Canada ruled yesterday that the Charter of Rights and Freedoms “does not mandate the presence of defence counsel throughout a custodial interrogation” (R. v. Sinclair, 2010 SCC 35, para. 2).

Already, the Court’s 5-4 judgment has attracted criticism from several corners of the Canadian political landscape. I suspect that we can expect more of the same.

But what is interesting from the perspective of comparative constitutional law is this: both the majority and dissenting opinions made extensive use of foreign legal materials to reach their respective decisions.

Writing for the majority, Chief Justice McLachlin and Justice Charron (joined by Justices Deschamps, Rothstein and Cromwell) spent roughly a half-dozen paragraphs discussing the relevance of American constitutional and criminal protections for accused persons. Responding to the accused’s argument that Canada should follow the American Miranda rule, the majority stated: “We are not persuaded that the Miranda rule should be transplanted in Canadian soil,” adding that “adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures” (para. 38).

The majority also cautioned that “significant differences exist between the Canadian and American regimes” (para. 39) and furthermore expressed reservations about “departing from our own constitutional traditions” (para. 40).

For his part, dissenting Justice Binnie referred not only to the American Miranda case (para. 101) but also to Australian and New Zealand legislation (para. 103).

Justices Lebel and Fish (joined by Justice Abella) wrote a dissenting opinion of their own in which they, too, explored the promise and peril of importing the Miranda rule to Canada (paras. 198-201).

This is a rich opinion for comparativists to mine for insights about both how and why high courts engage foreign legal materials to resolve matters of domestic constitutional law.

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Published on October 9, 2010
Author:          Filed under: Criminal Law, hp, Richard Albert, Supreme Court of Canada

War on Drugs and Due Process in Mexico

A few days ago, a federal judge in Mexico ordered the release of a group of local government officials from the state of Michoacán (some of them elected, others appointed) that the office of the Mexican Attorney General (Procurador General in Spanish) accused of having links with the organized crime. The judge considered that prosecutorial accusations based on hearsay, illegally obtained evidence, and other questionable practices are simply not allowed and thus insufficient for convicting the officials. The reaction of the Mexican President and the Attorney General is not unexpected but still worrisome: they accused the judge for “liberating criminals” and have filed a formal complaint against the judge before the judicial council.

In Mexico, the Public Prosecutor’s Office (PPO) is subordinated to the Executive, whose political use of criminal prosecutions crystallized in the proverbial “for my friends everything, for my enemies the law”, attributed to the President who was in power in the beginning of the XX Century. The transition to democracy brought with it a series of constitutional amendments that include a judicial reform empowering the judiciary and a reform to the criminal procedure that emphasizes due process rights. The PPO’s institutional structure and the incentives of prosecutors, however, remain untouched and their practices are still those perfected during seventy years of authoritarian regime. The unfortunate coincidence (not completely fortuitous) of the process of democratization, liberalization, and decentralization with the increased presence and power of the organized crime and the drug trafficking has put the balance between security and liberty at the center of the stage. To mention just one example: the cited reform to the criminal procedure includes a special regime for persons accused of organized crime.

Despite the adverse political circumstances, the Mexican Supreme Court in a series of recent decisions (for example the Acteal case which was mentioned in this blog) has uphold criminal due process rights and put sensitive limits to prosecutorial discretion. The federal judge deciding the Michoacán case was actually following recent precedents. It is not only the prosecutor’s discretion that is being limited by the Court but also the army’s, though to a much lesser degree, given that the use of the military by the President to directly fight the drug cartels has predictably produced many claims of basic rights violations. The constitution and in particular due process rights should not become another casualty of the war of drugs. A strong defense of them is, in Stephen Holmes’s words, a case where “less is more”: less discretion for the government in the fight for security can result in more power and authority to carry out that fight. It is the province of the Courts to cleverly illuminate that difficult path.


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Published on October 8, 2010
Author:          Filed under: due process, hp, Julio Rios-Figueroa, Mexico