Blog of the International Journal of Constitutional Law

Constitutional Court of Bosnia and Herzegovina dismisses one of its judges

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

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Published on August 8, 2010
Author:          Filed under: Bosnia, hp, judicial appointments

A Canadian at Guantanamo Bay

Yesterday, the United States Supreme Court denied the request of Omar Khadr to block his military commission trial at Guantanamo Bay. Khadr is a 23 year-old Canadian citizen whose prosecution arises from acts he is alleged to have committed as a 15 year-old in Afghanistan.

The Government of Canada, at the direction of Prime Minister Stephen Harper, has long opted not to ask the United States Government to release Khadr from Guantanamo Bay. 
In 2008, Mr. Harper reasoned that the Khadr matter should be resolved by the judicial process, not the political process. Later in 2009, the Federal Court of Canada ordered the Government of Canada to seek Khadr’s repatriation to Canada. Last month, the Government of Canada filed what has been described as “a last-minute appeal” against the order. 
But now, the U.S. military commission appears ready to proceed, perhaps altogether short-circuiting the Canadian judicial process still underway.
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Published on August 7, 2010
Author:          Filed under: hp, Omar Khadr, Richard Albert, Stephen Harper, Terrorism; Guantanamo Bay

Proportionality and Justice Breyer’s New Book

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.

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Published on August 6, 2010
Author:          Filed under: hp, Mark Kende

Kenya says yes

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.

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Published on August 5, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg

California’s gay marriage ban struck down as unconstitutional

American readers are likely to have heard this already, but this is sufficiently big to be of interest to readers elsewhere. Chief Judge Vaughn Walker of the U.S. District Court for the Northern District of California, originally appointed by George Bush Sr., ruled today that Proposition 8, an amendment to California’s constitution prohibiting gay marriage that was passed via ballot initiative by a 52% popular vote, violates the Equal Protection Clause of the Fourteenth Amendment. Judge Walker’s opinion concludes that Proposition 8’s prohibition of gay marriage lacks any rational basis (where mere discriminatory animus does not constitute a “rational basis”). Plenty of obvious echoes of Romer v. Evans, the Supreme Court’s earlier decision striking down Colorado’s constitutional amendment (also passed by popular initiative) that prohibited localities from enacting laws to protect gays from discrimination. Surprisingly, Judge Walker’s own sexual orientation has received little mention (as far as I can tell), which either reflects either very well or very poorly on the media, depending upon how one chooses to explain the omission.
I’ll go out on a limb and make some predictions here. The district court’s ruling contains many findings of fact (regarding, for example, the success of gay as opposed to heterosexual marriages) that, at least in theory, should make it more awkward for the 9th Circuit or Supreme Court to reverse the decision. That does not necessarily mean, of course, that the decision will stand; an appellate court that wants to overturn the ruling will undoubtedly find a way of doing so, deferential standard of review for factual findings be darned. But the way in which the district court’s opinion is written may force an appellate court to do a little fancy footwork (or be especially blunt on questions of law) in order to reach the desired outcome.
The District Court’s official webpage for this case, Perry v. Schwarzengger, is here. Quickie coverage/highlights from the opinion here.
Looking down the road, the next stop for this case will be the U.S. Court of Appeals for the Ninth Circuit (a.k.a. “the Ninth Circuit”; just try to count the number of ways the court’s name gets mangled in the media), which is required to hear the appeal as of right. There is a reasonable likelihood that whatever the initial (randomly drawn) panel of 3 judges concludes, the case will be reheard by an en banc panel consisting of eleven judges drawn at random from the full roster of the court’s active judges, over which Chief Judge Alex Kozinski (an often unconventional Reagan appointee) will automatically preside. A majority of the court’s active judges will vote on whether to rehear the case en banc. Notwithstanding the “renegade liberal” label that conservatives like to affix to the Ninth Circuit for political and rhetorical reasons, the Ninth Circuit is in fact rather closely divided along ideological lines, which makes the outcome at the circuit level difficult to predict with reasonable certainty. Eyeballing the roster of active judges, I end up with a quick-and-dirty count of – wait for it! – 11 Republicans who would vote to reverse versus 11 Democrats who would vote to affirm, with a couple of potential swing votes (namely, Judges Gould and Silverman, both nominally appointed by Clinton but under heavy duress from Senate Republicans. I am already counting Richard Tallman, nominally a Clinton appointee, as a Republican; his appointment was part of the price extracted by Republicans for Clinton’s concurrent appointment of Willie Fletcher to the same court. If anyone is interested, I can redo, and explain, my count more carefully.)
From there, the next stop will be the Supreme Court. If the Ninth Circuit affirms the district court, the odds that the Supreme Court will grant certiorari and decide the issue itself strike me as especially high. If the case is decided on the merits as opposed to procedural grounds, my guess is that Justice Kennedy might be willing to affirm the district court, given his authorship of both Romer v. Evans and Lawrence v. Texas, while the votes of the other 8 justices can all be taken for granted, which would make for a 5-4 squeaker.
No doubt there will be (is already?) more extensive coverage elsewhere, but hopefully this will be of interest to at least some of our readers.

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Published on August 5, 2010
Author:          Filed under: David Law, equality rights, gay marriage, gay rights, hp, Proposition 8

Looking like “yes” in Kenya

Kenyan citizens go to the polls tomorrow for an up and down vote on the new constitution. According to reports in the Daily Nation, voters are expected in record numbers. Despite early warnings from the government that funds were in short supply to support the election, ballots appear to be in place, a national holiday proclaimed, and security measures taken.

Polls have consistently predicted a comfortable victory for the “yes” contingent of about 30 points. One from five days ago had the “yes” side at 66% and no at 20%, with another 14% either undecided or determined not to vote. This is no surprise given the relative consensus among elites regarding the new higher law. The rivals President Kibaki and Prime Minister Odinga are both campaigning hard for “yes,” although at least three ministers have taken a stand for “no.”

Importantly, surveys have shown 85% of citizens saying that they will support the outcome, whatever it is, suggesting that Kenyans are either happy with or resigned to the new constitution. This consensus, at least as it translates into legitimacy, may well be the most important result of the election tomorrow.

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Published on August 3, 2010
Author:          Filed under: hp, Kenya, referenda, Zachary Elkins

The unstable presidentialization of Japan’s parliamentary system

Scholars sometimes speak of the presidentialization of parliamentary systems. Japan’s political constitution has been moving in this disrection since the election of Junichiro Koizumi in 2001. In the Japanese system, MPs of the leading parties function as a kind of “electoral college” choosing as Prime Minister NOT their de facto leader BUT rather someone popular with the voters for winning elections. Once elected, the populist PM has “authority” but lacks legal “powers” enabling him to keep his promise to voters. The executive power is vested in the cabinet. Thus, the PM is “checked & balanced” by his colleagues (cabinet ministers and ruling party’s MPs) on the political level and by bureaucratic officials on the administrative level.

The PM can hire and fire his ministers but has no power to “control and supervise” them. Though the PM may overcome this constraint by using his authority to directly appeal to the people (by threatening to dissolve the Diet), such a move is politically risky if a certain number of ministers/ruling party MPs are opposed to him (or his policy). Ironically, A PM who heavily relies on his “democratic authority” is considered to abuse of power and therefore becomes unpopular among the ruling party members.

The PM can control and supervise the administrative agencies, but has no power to appoint or remove agency officials. On this level, he is confronted by varied corps of bureaucrats constituting the permanent national government. This national bureaucracy, which holds the power to interpret the laws, draft bills and make policies, is highly autonomous. The PM does have powers as supreme organ of public administration, but by exercising PM’s administrative functions he degrades himself to “chief bureaucrat”; that is, the PM can trump bureaucracy only if his orders follow non-political, “neutral” norms shared by the bureaucratic part of the central government. It is the legal relations among organs of administrative bodies, NOT democratic authority, which rules the public administration. Besides, agency officials can oppose to the PM’s policies through ministers and mass media speaking for them. All these factors create a system in which the PM reigns but does not rule.

This quasi-presidential system creates tensions between the PM and ruling party. The populist PM is no more willing to cooperate with partisan politics inside the Diet, instead placing his legitimacy in the non-partisan “sovereign people”. He decides the agenda to be discussed in the election. If he wins, the PM tries to keep his promise by imposing the newest people’s command on partisan MPs, raising tensions between factions or parties. If he loses in upper-house elections, he will lose his control over his party. In the former case, the problem is that the people know little about constitutional restraint of PM’s power. They will withdraw their support if the PM fails to keep his word. As to the latter case, PM has little choice: either he goes back to play partisan politics (inside the ruling party or between the parties) which he is not good at, OR he relies on the non-partisan public administration to regain non-partisan popular support. In either case, PM will be politically weakened in the bargaining process- and the populist voters usually don’t want to see any bargain.

–Tokujin Matsudaira, Hitotsubashi University

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Published on July 26, 2010
Author:          Filed under: hp, Japan, Tokujin Matsudaira

Georgian President seeks new draft

Georgian President Saakashvili on Wednesday submitted to parliament a draft of a new constitution that would limit the power of the presidency. The opposition has opposed the move, and some speculate that Saakashvili is “pulling a Putin”: empowering a prime ministership for himself to occupy once his term ends. This is a perverse side effect of term limits that we have seen in a number of cases in recent years, as commented earlier by Daniel Lansberg-Rodriguez. The ironies abound if Saakashvili is indeed adopting the same strategy as Putin: the legacy of the 2008 war between the two countries continues.

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Published on July 22, 2010
Author:          Filed under: Georgia, hp, term limits, Tom Ginsburg

“… far more onerous than the restrictions found in this Nation.”

In McDonald v. Chicago, Justice Stevens stated in dissent that “the experience of other advanced democracies . . . undercuts the notion that an expansive right to keep and bear arms is intrinsic to ordered liberty. Many of these countries place restrictions on the possession, use, and carriage of firearms far more onerous than the restrictions found in this Nation.”

In Germany, petitioners today submitted a constitutional complaint challenging the federal law regulating arms (Waffengesetz) to the Federal Constitutional Court, arguing that the law – already considered one of the strictest worldwide – is unconstitutional because it impermissibly favors the interests of sport shooters over of the fundamental right to life, as reported here. According to the petitioners, deadly weapons must be prohibited for use in shooting sports.

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Published on July 21, 2010
Author:          Filed under: Claudia Haupt, Germany, guns, hp

Constitution-making in Somalia

A fascinating, first-hand account of current UN-led constitution-making efforts in war-ridden Somalia — arguably one of the bleakest, most dysfunctional corners of today’s world — is offered by Professor David Cameron of the University of Toronto’s Department of Political Science. Professor Cameron, a prominent scholar of Canadian federalism and inter-governmental relations, has long been involved in international efforts to draw on constitutional design and on bona fides multi-party constitutional consultations to mitigate strife in conflict or post-conflict hot spots such as Iraq, Sudan and Sri Lanka.


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Published on July 21, 2010
Author:          Filed under: HP; constitutional design, Ran Hirschl, Somalia