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Blog of the International Journal of Constitutional Law

Kenya process continues

The constitution-making process in Kenya continues apace. The Committee of Experts has now submitted a revised harmonized draft to the parliament, which will then submit the document to a referendum. The revised draft retains the semi-presidential structure of the first draft, which has a directly-elected president and a prime minister. The Committee apparently believes that the semi-presidential system represents the best compromise between advocates for a pure presidential or parliamentary system. While comparative experience suggests this regime type may lead to downstream constitutional conflict, it seems to reflect a desire to retain the underlying political compromise between supporters of President Kibaki and Prime Minister Odinga.

A poll at the end of 2009, however, showed that a majority of Kenyans would vote against the draft. Respondents seem to be concerned about the power-sharing structure that the elites have compromised on.

Other changes in the latest draft include the elimination of a proposed system of regions that was not particularly well-developed in the first draft. Counties remain the basic unit of local governance, but the number has been reduced to the original 47 districts from 74 proposed in the first draft. There are a number of technical improvements in the draft, too, such as a mechanism for re-apportionment of county boundaries (Art. 220) and clarification of the term limits provisions, as well as a slight streamlining and reorganization of a bill of rights.

The draft, however, retains a number of unusual features. It has a separate constitutional court, but that courts decisions are apparently subject to appeal to the supreme court in all cases (the first draft had contemplated final decision in elections matters only). While the draft makes clear which court is superior, and thus avoids conflicts between the constitutional and supreme courts over that question, it is odd to have a “constitutional” court that in fact does not have the last word. Another oddity is that the prime minister is limited to ten total years in office. (No other democracies that we know of have term limits for prime ministers.)

Stay tuned for more as the draft moves along in the process.

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Published on January 9, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg
 

Popular Consultation in Sudan

Tom, you’re right to highlight Sudan as a possible “hot spot” for constitutional reform in 2010 (and beyond), but not necessarily in the context of “crisis.” This isn’t to say some sort of crisis is out of the question (or even unlikely), but it is not the only scenario in which meaningful constitutional reform might take place.

The two states of Southern Kordofan and Blue Nile are just now embarking on the CPA-mandated process of “popular consultation,” in which they are to ascertain the “will of the people” on “shortcomings in the constitutional, political, and administrative arrangements of the [CPA].” During 2010 both states plan to engage in intense broad-based grassroots consultations that will mirror other recent efforts at constitutional reform in Africa. (Just this week leaders of the two states were in Kenya speaking to officials from Kenya’s current and previous constitution-making exercises.)

Should the people of these two states decide “shortcomings” do in fact exist (a foregone conclusion if the process unfolds without undue manipulation or obstruction) new legal, administrative, and institutional arrangements are to be negotiated with Khartoum. While not explicitly stated, many believe the outcomes from these negotiations should be constitutionalized – either as amendments to the existing interim constitution or as part of a larger constitutional process.

While “popular consultation” envisions the two states remain part of the north – it provides a mechanism for them to negotiate wealth and power-sharing arrangements that could potentially remake northern Sudan into the type of federal state many believe critical to its sustainability. What’s more, this process is unlikely to end with Southern Kordofan and Blue Nile but instead could provide a model for other discontented areas of Sudan (most notably Darfur and the eastern states) to negotiate their own wealth and power-sharing arrangements.

While the eyes of most Sudan watchers will skip from the April 2010 elections straight to the January 2011 referendum – they will be missing a potentially critical and organic process unfolding in these two border states. Popular consultation is potentially important for the unifying and reconciling impact it could have on the states themselves, the changes it could produce in the relationship between the states and Khartoum, and the precedent it could set for other aggrieved areas in Sudan – all of which could impact Sudan’s constitution.

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Published on January 8, 2010
Author:          Filed under: constitutional change, consultation, federalism, hp, Jason Gluck, Sudan
 

Japanese “constitutional” change


The Democratic Party of Japan continues its efforts to transform Japanese political practice toward greater congruence with formal demands of the Constitution. Secretary-General Ichiro Ozawa is plotting strategy for a major reform bill, described here, that would reduce the power of the Cabinet Legislation Bureau to appear in the Diet. As a corrolary this would reduce its power to offer authoritative interpretations of constitution. These interpretations have been crucial in adjusting constitutional understandings of the famous anti-war Article Nine.

Thanks to Craig Martin, who has some good writing on the constitutional issues surrounding Japan’s Article Nine available here.

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Published on January 7, 2010
Author:          Filed under: hp, Japan, Tom Ginsburg
 

Comparative Constitutional Law Events at the 2010 AALS Annual Meeting

I am looking forward to attending the 2010 AALS Annual Meeting, held this year in New Orleans, starting today, January 6, and running until Sunday, January 10.

For the convenience of readers, I have taken a moment to look through the program to highlight the comparative constitutional law events on offer at the AALS.

All events, listed below in chronological order, will be held in the Hilton New Orleans Riverside:

Roundtable Discussion on Comparative Scholarship
Thursday, January 7, 2:00-3:30pm
Grand Ballroom B, First Floor

Breakfast of Section on Comparative Law
Friday, January 8, 7:00-8:30am
Grand Salon Sections 4 and 7, First Floor
* In collaboration with other sections. Tickets sold in advance.

Transforming National Security Law: Comparative Perspectives
Saturday, January 9, 1:30-3:15pm
Jefferson Room, Third Floor

The following panel discussions may also be of interest:

Re-Examining Customary International Law and the Federal Courts
Thursday, January 7, 9:00am-12:00pm
Napoleon Ballroom, Third Floor

The Interpretation-Construction Distinction in Constitutional Law
Saturday, January 9, 10:30am-12:15pm
Napoleon Ballroom, Third Floor

The Freedom of Religion and Belief Jurisprudence of the European Court of Human Rights
Sunday, January 10, 9:00am-12:00pm
Jefferson Room, Third Floor

If I have overlooked any of the comparative constitutional law panels or activities planned for the AALS–and indeed I may have–please fill in the gaps for our readers.

See you in New Orleans!

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Published on January 6, 2010
Author:          Filed under: AALS, hp, Richard Albert
 

Indo-Pakistani Constitutional Convergence?

The distinctions in constitutional structure between India and Pakistan—not to mention their differences in political culture—are as sharp as they are numerous. To name but a few, India is a federal state tending toward decentralization in a parliamentary system whose constitution proclaims its commitment to secular democracy. In contrast, Pakistan is a federal state with centralizing tendencies organized around a semi-presidential system which aspires to a model of Islamic democracy.

But India and Pakistan also share a number of constitutional similarities. One in particular is their constitutional grant of plenary power to the national legislature to amend the text of the constitution. As long as the legislature musters the requisite majorities, neither section 368 of the Indian Constitution nor section 239 of the Pakistani Constitution appears to impose any substantive limitation on the content of constitutional amendments in India and Pakistan, respectively.

Constitutional comparativists will know that the Indian Supreme Court has effectively overridden this plenary grant of power by interpreting the Indian Constitution as held together by a “basic structure” whose constituent elements are forever immune to formal constitutional amendment. According to the High Court, the Indian Constitution folds within itself a number of unalterable principles, including constitutional supremacy, republicanism, federalism, secularism, and the separation of powers. As a consequence, Indian courts may invoke—and indeed have in the past invoked, most notably in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789—this “basic structure” doctrine to invalidate duly-passed constitutional amendments.

We may be witnessing the emergence of a similar doctrine in Pakistan.

In a recent case, the Supreme Court of Pakistan invalidated an amnesty that shielded Pakistani politicians and other public officials from criminal and civil prosecution. (For helpful background of this case, I recommend the short briefing materials here at the Jurist.)

This is a significant judgment whose impact may reverberate in far-reaching ways for years to come.

But what may perhaps be most interesting for constitutional comparativists is a very short passage in the opinion. Near the end of its decision at page 14, the Pakistani Supreme Court wrote matter-of-factly that “salient features of the Constitution i.e. Independence of Judiciary, Federalism, Parliamentary form of Government blended with Islamic provisions, now have become integral part of the Constitution and no change in the basic features of the Constitution, is possible through amendment … .”

It is too soon to know whether the Pakistani Supreme Court intended to lay the foundation for something approximating the Indian basic structure doctrine. But that is certainly one plausible reading of this judgment—a judgment which could prove to be a pivotal moment in the constitutional evolution of Pakistan.

With that, let me thank Tom for inviting me to participate in this blog on comparative constitutionalism. It is an honor and a pleasure to join the team of scholars here, and I look forward to contributing to the conversation.

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New blogger on the site

I’m pleased to announce that Richard Albert of Boston College Law School has joined our ranks of bloggers. Professor Albert is one of the leading young scholars of comparative constitutional law in the United States. He’s published a number of papers, including an excellent article in the American Journal of Comparative Law on the fusion of presidential and parliamentary forms of government. Welcome, Richard!

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Published on January 3, 2010
Author:          Filed under: Uncategorized
 

Constitutional Hotspots for 2010?

I wonder if readers have thoughts on what locations will be likely to experience a constitutional crisis of some kind in 2010. Many of those that have had ongoing difficulties in the past year (Niger, Honduras, Zimbabwe) are likely to continue. Here are some other possibilities:

Thailand’s deep political divisions have not been resolved, and if by chance His Majesty King Bhumibol Ayuldeyej happens to pass to the next world, the situation may become even more volatile. (Shameless plug–I’ve recently written about it, and things have not stabilized.) One sign of underlying instability is that prosecutions for lese majeste–insulting the monarchy, still a serious crime in Thailand–are up from 17 in 2005 to at least 60 a year now. With ousted Prime Minister Thaksin Shinawatra now ensconced next door in Cambodia, there is mischief to be made. Of course, to predict constitutional instability in Thailand is like predicting snow in Chicago in winter.

2) Palestinian elections scheduled for this month have been postponed after Hamas refused to participate. What exactly is the legal status of the government? With the peace process at a standstill and continued conflict between Hamas and Fatah, it seems unlikely that any resolution or new constitutional agreement is in the offing.

3) Sudan: In one year, as per the 2005 Naivasha Agreement, the southern Sudan will have a referendum on whether or not to become independent. There have been significant disputes over the ground rules for the referendum, mostly resolved. But will the central government really tolerate the separation of such a significant amount of its territory?

I’m sure there are many oter possibilities out there as well.


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Published on January 2, 2010
Author:          Filed under: hp, hp; Tom Ginsburg, Palestine, Sudan, Thailand
 

The ECHR and ethnic discrimination in the Bosnia and Herzegovina constitution

The European Court of Human Rights had a holiday gift for Bosnia and Herzegovina’s smaller minority groups today. The story is widely reported; Deutsche Welle has coverage here. The court ruled that provisions of the country’s post-conflict constitution are discriminatory in violation of the European Convention on Human Rights. The suit in question, Sedjic and Finci v. Bosnia and Herzegovina [follow this link to retrieve the decision by name], was brought by two prominent politicians–one a Bosnian Jew, the other of Roma origin–who are both ineligible to serve as either members of the House of Peoples (the second legislative chamber) or co-presidents on account of their ethnicity. Both sets of offices are reserved for members of Bosnia and Herzegovina’s “constituent peoples”–namely, Bosniacs, Croats, and Serbs. (The presidency is a three-member body for which membership in one of three ethnic groups is a prerequisite. Here’s the actual offending language from Article V of the constitution of Bosnia and Herzegovina: “The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.”)

In the face of this sort of language, it is not difficult to see how the court reached the conclusion that it did. These sorts of explicit ethnic set-asides are not only literally discriminatory, but they also discriminate against groups that have historically suffered more than their fair share of abuse. The Strasbourg court can hardly be blamed for discharging its obligations under the Convention and, indeed, the Bosnian constitution, which provides explicitly that the Convention “shall apply directly” and “shall have priority over all other law.” (Logically, there would not seem to be any barrier to a constitution proclaiming its own inferiority to some other legal instrument, such as the Convention, but the effective result–namely, the use of one part of a constitution to strike down another part–is at least superficially a bit paradoxical.)

As the court itself acknowledged, though, the story is a bit more complicated than that. The goal of writing a workable constitution for a deeply divided post-conflict society is not an easy one, and there is a limited repertoire of theoretical approaches and practical tools for doing so. One of the best-known approaches is the theory of consociational democracy championed by UCSD’s Arend Lijphart. Lijphart has long argued for power-sharing in the form of divvying up public offices in such a way that all relevant groups are represented and thus have a stake in upholding the constitutional order.

The Strasbourg court is clearly aware that the Bosnia-Herzegovina constitution reflects a bargain among opposing forces, but it just as clearly takes a dim view of that bargain. It makes a point of mentioning that the constitution was drafted and adopted as part of the Dayton Accords “without the application of procedures which could have provided democratic legitimacy,” and that the specific provisions in question were included at the insistence of the parties to the conflict, notwithstanding the expression of human rights concerns by the international mediators involved. From the perspective of consociational democracy, however, the fact that the ethnic set-aside provisions were sought by the parties to the conflict is no reason to invalidate them. It suggests, instead, that those provisions may be crucial to the survival of the constitution as a whole.

Consociational democracy is not the only approach to constitution-building in post-conflict societies, and some scholars have argued vigorously that it is far from the best, but it is certainly a plausible one. Unfortunately, discrimination would appear to be an inevitable byproduct of setting aside high public offices on the basis of ethnicity or religion. Do the ends justify the means? Is it imprudent to rule such approaches entirely out of bounds on human rights grounds? Does the fragile nationhood of Bosnia and Herzegovina potentially rest upon the answers to these questions? These are not easy questions.

And on that upbeat note … happy holidays everyone!

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The Irish SC and Gay Rights

Last week the Irish Supreme Court handed down a significant decision in relation to the rights of gays and lesbians living in Ireland. In McD v. L [2009[ IESC 81, the Supreme Court held that in a dispute over legal guardianship and access, a male biological parents (and sperm donor) was in principle entitled to statutory rights of access, even though this ran contrary to a prior agreement with a child’s current parents and guardians (lesbian couple) and their wishes. (The issue of the child’s actual best interests was reminded for further determination by the High Court). The decision is obviously significant for what it does not do for the recognition of same-sex relationships in Ireland, but also for the scope for national-transnational “dialogue” under the European Convention on Human Rights. Contrary to the High Court, the Supreme Court held that the right to family life under Art 8 of the Convention was not relevant to the interpretation of the relevant statute, and in any event, according to some justices, as of now Strasbourg jurisprudence did not extend to recognizing same-sex couples and their children as a family unit entitled to de facto protection under Art 8. It was also not for the Irish High Court, according to these justices, to “anticipate” where Strasbourg jurisprudence might go in this context in the future (see e.g. Fennelly J. par 94).

–Rosalind Dixon

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UKSC rules on Jewish school admission criteria

As the New York Times and other media outlets report, on Wednesday, Dec. 16 the newly established UKSC released its landmark ruling in a case involving apparently discriminatory admission criteria by a Jewish school in North London. According to the traditional Orthodox Judaism definition, a person may be recognized as Jewish only if his or her mother was Jewish, or if he or she converted to Judaism via Orthodox conversion practices. A 12-year old applicant to the said Jewish school comes from a devout Jewish family, where the father is Jewish and the mother converted to Judaism via non-Orthodox (and thus supposedly more lenient) conversion process. There was no doubt about their substantive adherence to Jewish traditions. The school refused to admit the applicant on the basis of his questionable Jewishness, at least by the school’s Orthodox definition of “who is a Jew”. The UKSC applied extra-religious, general law equality norms to a religious community’s own membership criteria, thereby ruling that the school’s selective admission policy was unjustly discriminatory.

A broadly similar “who is a Jew” question has haunted Israeli constitutional law for decades. For a host of historical and political reasons, the Orthodox stream of the Jewish religion has long enjoyed the status of being the sole branch of Judaism formally recognized by the state. This exclusive status has enabled the Orthodox community to establish a near-monopoly over the supply of public religious services, and to impose rigid standards on the process of determining who is a Jew – a question that has crucial symbolic and practical implications as, according to Israel’s Law of Return, Jews who immigrate to Israel are entitled to a variety of benefits, including the right to immediate full citizenship. This has taken place while over two thirds of the world’s Jewry, on which Israel relies for essential symbolic, material, and strategic support, continues to live outside of Israel, and does not subscribe to the Orthodox stream of Judaism. As things now stand, the Israeli Supreme Court has recognized non-Orthodox conversion to Judaism performed outside of Israel but is yet to OK such conversions performed within Israel. In 2005, the Court recognized non-Orthodox ‘bypass’ conversions to Judaism performed de jure abroad. It held that a person who came to Israel as a non-Jew and, during a period of lawful residence there, underwent conversion in a recognized Jewish community abroad would be considered Jewish. This legitimized a practice referred to as “leap conversions” whereby residents of Israel may go abroad for a few days, undergo non-Orthodox conversion, and return to Israel as converted. So if you happen to think that American constitutional law of religion is somewhat convoluted, think again . . .

RH

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Published on December 17, 2009
Author:          Filed under: Israel, Ran Hirschl, religion, United Kingdom