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.
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  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
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.
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 (firstname.lastname@example.org) 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 (Kristina.Bentley@uct.ac.za)
(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 (email@example.com)
(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.
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).
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.
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.
Thank you to Tom for noting my book review! I did want to add one thing: The issue of how the courts of other countries interpret their constitutions is relatively understudied. There is a good book with single-country studies from 2007 edited by Jeffrey Goldsworthy (Monash University, Australia).
I have a reply forthcoming in the Texas Law Review to an article on originalism in comparative perspective written by Jamal Greene. Professor Greene’s very interesting article talks about originalism in a few different countries. In my reply–which I hope to expand into an article in the near future–I note that there are actually other countries where originalism is a topic of discussion and a source of constitutional meaning. As the reply (and the article) discuss, it tends to be the constitutions where the constitution is part of a nation-creating revolution–and so where the drafters of the Constitution have a special status because they are not just constitution drafters but nation-creators. This means that many post-colonial constitutional systems–like the United States–feature discussions of originalism.
Our colleague David Fontana of George Washington University has a book review of Justice Stephen Breyer’s new book here. An excerpt: “It is hard to understand Breyer’s approach to the Constitution without first considering the alternative that he is responding to, conventionally called originalism. Originalism, as Scalia has described it, means that the Constitution should be interpreted according to what those alive at the time of its drafting thought its words meant. By any measure, originalism has become a major source of constitutional meaning, relied on by courts and politicians alike. When the Supreme Court decided its landmark gun rights case in 2008, Heller v. District of Columbia, the liberal and conservative justices didn’t argue mostly over whether original understanding was important — instead, they argued about what the correct original understanding of the constitutional right to bear arms should be. Liberal or conservative, we are all originalists now.
But Breyer wants courts to rely on much more than just originalism, and he argues for a vision of the Constitution focused not just on opinions from the 18th century but also on considerations from the 21st. Breyer believes that, in ruling on constitutional issues, judges should also look to “history, tradition, precedent . . . purposes and related consequences,” all in an attempt “to help make the law effective” and to help courts engage in a workable relationship with the other branches of government.”
It seems safe to say that this debate is largely American. Originalism seems to have had less impact in other jurisdictions. In part this might be because other countries do not have the same quasi-religious veneration for constitutional founders, who in many cases are still active politicians; it might be because the Breyer position is so widely accepted as not to provoke controversy.
The latest general elections in Bosnia and Herzegovina, held on 3 October 2010, exemplify just how troubling the ethno-democratic Constitution of the country is. This is particularly visible in the election of the members of the Presidency of Bosnia and Herzegovina.
The Constitution of B&H provides (in Article V) that the Presidency will have three members, where a Serb member is elected from the “Republic of Srpska” entity, while Bosniak (Bosnian Muslims) and Croat members are elected from the territory of the “Federation of Bosnia and Herzegovina” entity. Thus, the members of the Presidency are elected by entire populations of those entities and not just their specific ethnic groups (although, because of “ethnic cleansing” this was in reality always the case in Republic of Srpska). One of the problems with this provision, mostly of principle then practical nature, is that it is discriminatory, in the sense that someone not identifying with the three “constituent peoples” may not stand for the election to the Presidency of B&H. This question was dealt with by the European Court of Human Rights in Sejdić and Finci v. Bosnia and Herzegovina case of last year, where the Court found in the favour of the applicants – the decision has still not led to constitutional reforms in that regard.
The more practical problem with the provision is the fact that it enables the specific majorization of Bosnian Croats in the Federation of B&H entity, since Bosniaks, because of their sheer demographic majority can elect both the Bosniak and Croat member of the Presidency (this could also be the case if all the Croat parties had only one candidate). This has occurred two times already, the including these elections. Both times Željko Komšić, an ethnic Croat, the candidate of a left-leaning multiethnic Socialist Democratic Party, was elected almost entirely by Bosniaks, while Croats overwhelmingly voted for two candidates of the Croat nationalist parties. Komšić, who speaks Bosnian (rather than Croatian), and who served in a mostly Bosniak army during the war, identifies himself mostly as a candidate of the “citizens” of Bosnia and Herzegovina (although citizens, according to the Constitution, are a either a separate minority or part of “Others”). Indeed, the Constitution does not expressly say that the Croat member of the Presidency represents the Croats (and the same goes for other members), nevertheless the systematic analysis of the Constitution inevitably leads to the conclusion that its nature is ethno-democratic, rather than orientated to an abstract citizen. The issue is that of legitimacy, rather than legality.
The Constitution has always been an exercise in frustration for (Bosnian) Croats, since they undoubtedly have the weakest position of the three constituent peoples. Thus, it does not completely surprise that the leading Croat nationalist party (HDZ) had made an agreement with the leading Serb nationalist party (SNSD) on the creation of the separate federal unit within (Federation of) Bosnia and Herzegovina. Croats have also indicated the possibility of early elections in two years if the issue of Presidency is not solved through constitutional amendments. None of that, of course, can be done without Bosniaks (among which the “consociation” is a taboo word), and previous attempt at para-constitutional internal secession by Croats proved unsuccessful and has been sanctioned by the High Representative of International Community. Although not subject of this post, it suffices to say that Croats either have no means of judicial resolution of these issues or have (unsuccessfully) exhausted the same.
Calls for external secession (Bosnian Serbs), for internal secession (Bosnian Croats), further centralisation (Bosniaks) and de-ethnicization (“Others”) of Bosnia and Herzegovina show the limits of the constitutional attempts to accommodate all the different interests in a multiethnic state. It remains to be seen how destabilising these calls will be, although at this point long-awaited constitutional reforms seem inevitable. The modalities of such reforms are, however, highly contested.
–Nedim Kulenović, Faculty of Law, University of Sarajevo
A classic episode of the American television comedy Seinfeld finds two of the characters, Kramer and Newman, on a subway car playing the board game RISK. Kramer taunts his opponent for his losing position to which the latter responds “I’m not beaten yet. I still have armies in the Ukraine.” The provocation continues as Kramer responds that “The Ukraine is weak. It’s feeble.” At which point a large and angry eavesdropper with a pronounced Slavic accent comes forth from elsewhere in the car bellowing “I come from Ukraine! You not say Ukraine weak! Ukraine is game to you!?“ The man attacks them and smashes their game board.
With this in mind I will refrain from questioning the Ukraine’s strength. As the largest nation in Eastern Europe save Russia, and possessing a standing army of 1.2 million people (14th in the world) the country is certainly not weak. What does seem increasingly feeble however is Ukrainian democracy which took a serious blow this week when the Constitutional Court, under pressure from President Viktor Yanukovych abolished the liberal 2004 Constitution which had granted checks and balances to executive authority in the wake of the Orange Revolution and replaced it with an earlier (and more executive-friendly) version.
The real story begins in 1996 (a year after the Seinfeld episode originally aired) when Ukraine adopted its first constitution since achieving independence. Up until then the government had functioned under a constitution known as the Fundamental Law, established in 1978 under the Ukrainian Soviet Socialist Republic, which relegated much national authority to the Kremlin. That constitution had already been amended several times as communism began to weaken, and again when the country broke away from the Soviet Union in 1991. Yet five years later it was deemed necessary by the post-independence government to put in place a constitution unsullied by the legacy of the USSR.
Although the new government structure under the 1996 Constitution did go a long way towards asserting the nation’s newfound independence, it inherited from its predecessor a very strong executive function which led to numerous abuses and very high perceived corruption under then president Leonid Kuchma. One of these incidents involved the publication of audio recordings which implicated Kuchma in the kidnapping and decapitation of an opposition journalist, as a result of which he is rumored to have agreed to step down in 2004 in exchange for immunity from prosecution. His handpicked successor, and former Prime Minister, Yanukovych was announced as having won the election to succeed Kuchma by the Ukranian Central Election Committee. Yet the results of that election were challenged by his opponent Viktor Yushchenko who was backed by numerous international observers, this precipitated the peaceful social unrest which became the Orange Revolution.
As might be expected from a country bordering Russia to the east and the European Union to the west, Ukraine has always suffered a bit of an identity crisis. The Western part of the country identifies strongly with Europe and has always viewed Moscow with great suspicion, while in the Eastern regions this dynamic is reversed. This imbalance asserted itself both when Yushchenko, the liberal pro-Western candidate was installed after the Orange Revolution, and when (following four uninspired and unpopular years of his rule) he was defeated by his old foe Yanukovych who promised to return order and strengthen ties with Russia.
This new ruling by the Constitutional Court represents the death knell of the Orange Revolution which led to important constitutional improvements that moved Ukraine away from the type of empowered presidential system common in Warsaw Pact countries (and to a lesser extent in the United States) and towards a Western European style parliamentary democracy. Legislators were granted longer terms, the authority to appoint and dismiss key government positions such as ministers (including the PM) and directors and could override presidential authority in most cases. Opponents complained that the new governmental structure was not well organized, with redundant authorities lending themselves to the inaction and political polarization which marked Yushchenko’s tenure as president. There is some truth to these claims. The 2004 Constitution was a rush job, thrown together in the euphoria following the Orange Revolution and seeking to legitimize the results of the election crisis. It is likely that balancing amendments would have been necessary to streamline governmental procedures and make institutions more responsive.
The return to the 1996 Constitution however, is at best a classic overcorrection and at worst a downright coup by Yanukovych. The reinstated document returns to the presidency a veritable carte blanche for restructuring, dismissing and appointing government positions without legislative consent (requiring parliamentary approval only for a prime ministerial appointment.) Furthermore the empowered executive can strike down parliamentary initiatives it disagrees with in embryo or veto them at will during the legislative process.
It is unfortunate that the events of 2004 have now come full circle and that the Ukrainian people have been robbed of victories which in retrospect may have cost them too much.
~ Daniel Lansberg-Rodriguez
For an English version of the reinstated constitution: http://www.rada.gov.ua/const/conengl.htm#r5