Nepal has been engaged in an extended drafting process for over two years, during which time political turmoil and the ending of the monarchy has shifted the landscape significantly. This week the constituent drafting assembly, elected in May, officially launched the process of drafting a permanent constitution, with a deadline of May 2008. A key issue will be federalism and devolution.
A frequent source of constitutional death or amendment is executive term limits. After serving two terms, former President Putin successfully re-engineered the Russian Constitution to facilitate his election as Prime Minister, allowing him to remain in office so long as he has the support of parliament (presumably a very long time.) Recently, Putin’s hand-picked successor Dimitry Medvedev has floated the idea of amending the Constitution to allow for an extension of the Presidential term to six years. This would allow the current lineup to remain in place for 12 years. Stay tuned for updates on whether this gambit succeeds.
Ecuador’s new constitution was confirmed last week and took effect yesterday. Following the leftward trend in Latin America, the document guarantees rights to clean water, pensions and health care, while also allowing President Rafael Correa to serve another term potentially. Elections will be held in February.
Why is it that Correa was able to get through reforms through a referendum when his fellow Bolivarista Hugo Chavez failed? One possibility is that Correa has been in office less time, and took power initially in a free and fair election.
For almost two years Iraq’s Constitutional Review Committee (CRC) has been working on a package of constitutional amendments to submit to the Council of Representatives (CoR) and then for popular referendum. This tumultuous process has witnessed highs (the May 23, 2007 interim report that included several substantive amendments that would have fundamentally altered the constitutional treatment of oil and other natural resources and redistributed powers between Baghdad and the regions to create a more functional federal system) and lows (the complete repudiation by the KRG of these same amendments two days later). Since May 2007 the CRC has been largely stuck in neutral, and the interim report all but forgotten in Parliament. This past July, the CRC submitted a non-final final report to the CoR — “final” in that it included the complete report from May 2007 (even the proposed amendments later repudiated by the KRG) and “non-final” in that the report noted five matters (including those objected to by the KRG) that were being referred to senior Iraqi officials for further deliberation and, hopefully, compromise and resolution (which could then be incorporated back into the report).
Last week Speaker of the Iraq Council of Representatives Mashadani added an unexpected plot twist when he announced that immediately after the Eid (due to end on Oct. 5) the Presidency Council of the CoR would put the constitutional amendments on the parliamentary agenda for a vote — regardless of whether the political leadership had reached agreement on the remaining issues. This reckless move, if followed through, will necessarily result in one of following events:
1) The entire amendment package could fail. The Kurds will absolutely vote against it. The question will be whether they can convince their usual parliamentary allies (ISCI and Dawa) to do the same. This would end the special constitutionally-mandated review process and close the window on any short or medium term chance of achieving critical constitutional change.
2) The entire amendment package could pass. This would present two new problems. First, the Constitution requires that a national referendum take place within two months of the CoR passing any amendments. Iraq is already way over its head with pending provincial elections – a national constitutional referendum in the next two months is a technical impossibility. Second, the entire package would be voted down at referendum, as the three Kurdish provinces would all vote against it. (Three provinces voting “no” automatically vetoes the amendments). Again, leading to the result that a unique opportunity to improve upon the Constitution would be lost.
3) Some amendments pass and some fail. (While a reading of the Constitution suggests this should not happen — the CoR should have one yes/no vote on the entire package of amendments — there is some support for this in Parliament). This too would be a lost opportunity since critical provisions that after further negotiation might have passed will be voted down due to the haste with which the vote was called. Further, those amendments that did pass would create the same technical difficulties at referendum as explained above. And finally, even if a referendum were organized, with the key matters left out of the package Iraqis would likely not care enough even to come out to vote for it. (With only intermittent electricity, much of the country without potable water, and the constant fear for one’s life I imagine it would be very difficult to get too excited over a constitutional amendment creating a second chamber of parliament.)
The Seaker’s motivation for calling this vote is not known. The constitutional review has largely been a battle with Arabs (Sunni and Shia) on one side and Kurds on the other. In the wake of the passage of the provincial election law, which saw a significant Kurdish compromise, Mashadani may see this as a good time to continue to put pressure on the KRG. He should be counseled (and cajoled, if necessary) into rethinking. The constitution review is too important to be used as a political tool. Already Shia and Sunni have reached critical and fundamental agreements on some of the most important and contentious matters facing Iraq today. Kurds must be brought on board through negotiation and compromise – not political gamesmenship. Only in this way will the Constitution ever represent a national compact and a workable template for Iraq’s federal system.
Since its adoption in late 2007, the new post-coup Thai constitution has been caught up in a series of disputes before the courts and indepedent electoral commission about the conduct of the governing party, which is associated with the deposed (now exiled) Prime Minister Thaksin Shinawatra. Demonstrations and counterdemonstrations continue on the streets of Bangkok. Now, it appears that the long crisis may come to a close because of the allegation that the current Prime Minister Samak Sundaravej violated the law by receiving payments to appear on a cooking show. The Constitutional Court is to decide whether he is to be removed from office, which would might force new elections. Details here.
The new Burmese constitutions is extraordinary on many levels. First, is the waiting-for-Godot quality of the process that produced it. It took about seventeen years from initiative to ratification to get the document out the door. That is far and away a record. True, other countries kick around the possibility of a new charter sometimes for years. But once a formal process is under way, it is usually a matter of a year or two for most countries.
Together with some help from one of our graduate students (Justin Blount), the CCP team conducted an analysis of a randomly selected group of 50 of the 800 or so historical constitutions. The average process time from formal beginning to formal promulgation was about a year and a half. Getulio Vargas’ self-serving 1937 constitution for Brazil took only a couple of weeks to remove the constraints on his reelection plans.
After 17 years, you would think that the Burmese authorities would take care to put the charter in force on a solid footing. They had every intention to do so, with a referendum set for a date in May 2008. Then comes the cyclone, seemingly a natural disaster of historic proportion (in retrospect, the damage was much less than was initially feared). The referendum was to occur n the midst of the fallout of the cyclone (at its peak, almost). Rather than postpone to vote, the authorities were determined to push their new creation through. And push it they did. The vote was, not surprisingly, a highly consensual one with very few reported “no” votes. But what an unglorious sendoff to a document so long in the making!
We have not yet analyzed the document in much detail, but it’s clear that 17 years did not produce a tight, bulletproof text. Right out of the gate, citizens noted a problem with the document, or at least the version that was available at the time of the referendum. That version stated that amendments to the draft needed to be approved by “all of the voters,” a seemingly impassible hurdle. Some suspected that this was indeed the intent of the drafters — after all, after 17 years, why not make the document impregnable! But Burmese authorities blamed the clause on a typo, saying that their intended provision called for a majority of voters to approve changes.
Something tells me that more twists, turns, and rough terrain lie ahead for this seemingly ill-fated document. I will keep you posted.
A major package of constitutional amendments backed by President Sarkozy passed by a single vote last week in the constitutional commission, a special joint session of deputies and senators. The bill sets a two-term limit for presidents, gives parliament a veto over some presidential appointments, and ends government control over parliament’s committee system. Public debate focused on letting the president address parliament once a year in a formal “state of the union” address, which has not been allowed since 1875 under the strict theory of separation of powers. The changes seek to improve parliamentary oversight ability, but also move the French system a tad closer to the American one.
Under the radar was another blow to the system of separation of powers, namely a provision allowing the Conseil Constitutionnel, France’s constitutional court, to review existing legislation for the first time. Review can occur on request by the Conseil d’Etat or Cour du Cassation (France’s administrative and supreme courts, respectively). Because of the longstanding fear of government by the judiciary, French constitutional practice had previously restricted the Conseil Constitutionnel to reviewing legislation before promulgation. The change means that for the first time since the French revolution, France has a constitutional court like those found in other European jurisdictions that can strike existing legislation.
To some extent the change (brought to our attention by Alec Stone Sweet of Yale) will have less impact in practice than it might have otherwise because French courts were already able to interpret French constitutional rights, even if they could not overturn legislation. Also, the European Court of Human Rights provided an alternative forum in which to challenge government policies that interfered with rights. But the changes will make the Conseil more visible and will set in motion interesting dynamics within France’s courts.
Welcome! Here you will find commentary on issues and events surrounding constitutional design. The goal is the same as that for constitutionmaking.org more generally: to connect scholars and drafters, neither of whom can very easily follow what the other does. To that end, we endeavor to bring to light two sorts of information: (1) reports of constitutional deliberation (and challenges therein) from various corners of the world, and (2) reports of noteworthy research on the subject.
The ideas are serious but, we hope, that the tone will anything but ponderous; depending upon the authors’ energy level, it will ideally be lively and direct. If there is a lighter side to constitutional design, an irony worth exploring, or simply a good story from the field, we will not shy away from sharing it. In the end, however, the idea is to help drafters make decisions and to sharpen and re-direct scholars’ research and agenda.
The forum’s authors welcome reaction from readers (in the form of comments to posts) and are certainly amenable to more sustained and two-way communication. We plan, from time to time, to invite some to join us as regular authors or guests and will explore other ways to incorporate questions and comments in a more prominent form. If there are burning questions or comments that deserve to be headlined, we invite readers to email them to us and we will be happy to post our thoughts on the subject or invite others to do so.
Aside from that, we’ll refrain from making any broad proclamations about the forum. Should it prove useful and thought-provoking we will certainly keep it going.