Blog of the International Journal of Constitutional Law

Sri Lanka and Executive Self Dealing

The Sri Lankan parliament voted on Wednesday to approve the 18th amendment to their constitution, which strikes down the 2-term limit on presidential re-election. We’ve all seen this movie before. Critics responded by characterizing the amendment as a step towards authoritarianism, since its beneficiary is the sitting president, Mahinda Rajapakse. The President’s spokesman, right on cue, announced that the amendment would give the president time to continue his good work on economic development and ethnic reconciliation. The housing minister’s line was even more telling: “we’re not going in for dictatorship. If the president wanted to be a dictator, he already has enough powers to do so.”

Democrats (small d) will be conflicted over this move. On the one hand, the constitution was amended according to the stipulated procedure — nothing wrong with that. Think of the reasonably happy cases of Cardoso or Menem. On the other hand, the revision smacks of casuismo, as the Brazilians say, which I’ll translate roughly as self dealing. There is something unseemly about amending higher law to further the career of a single leader. Democracy, so the saying goes, should be about laws, not men.

Perhaps one’s views of this practice come down to one’s taste for casuismo, which for me is a decidedly bitter one.

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Published on September 10, 2010
Author:          Filed under: hp, sri lanka, term limits, Zachary Elkins

The Evolution and Ideology of Global Constitutionalism

Mila Versteeg and I have just posted to SSRN a paper entitled “The Evolution and Ideology of Global Constitutionalism” that may be of interest to readers of this blog. In this paper, we analyze an original data set that spans the rights-related content of all national constitutions over the last six decades. Our analysis confirms the existence of several global constitutional trends. These include the phenomenon of rights creep, wherein constitutions tend to contain an increasing number of rights over time, and the growth of generic rights constitutionalism, wherein an increasing proportion of the world’s constitutions shares an increasing number of rights in common.

Perhaps our most striking discovery, however, is that 90% of all variation in the rights-related content of the world’s constitutions can be explained as a function of just two variables. Both of these variables are underlying traits of a constitution that can be measured quantitatively. The first variable is the comprehensiveness of a constitution, which refers simply to the tendency of a constitution to contain a greater or lesser number of rights provisions. The second variable is the underlying ideological character of the constitution. We find empirically that the world’s constitutions can be arrayed along a single ideological dimension. At one end of the spectrum, some constitutions can be characterized as relatively libertarian, in the sense that they epitomize a common law constitutional tradition of negative liberty and, more specifically, judicial protection from detention or bodily harm at the hands of the state. At the other end of the spectrum, by contrast, some constitutions are more statist in character: they both presuppose and enshrine a far-reaching role for the state in all aspects of life by equipping the state with a broad range of both powers and responsibilities.

For each constitution in our data, we calculate a numerical score that measures its position on this ideological spectrum. Using these scores, we are able, in effect, to trace the ideological evolution of global constitutionalism. We show that the world’s constitutions are increasingly dividing themselves into two distinct families–one libertarian in character, the other statist. Within each family, constitutions are becoming increasingly similar to one another, but the families themselves are becoming increasingly distinct from one another. The dynamics of constitutional evolution, in other words, involve a combination of ideological convergence and ideological polarization. We conclude the paper with a call for further research in the area of empirical constitutional studies.

You can click here to download the full paper.

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Moldova fails to fix political system

It appears that Sunday’s referendum in Moldova failed to generate enough voter interest to fix the country’s political impasse. Europe’s smallest country has been unable to elect a president for a year, and now faces parliamentary dissolution and new elections.

The story begins in 2000, when the 1994 Constitution was amended to replace the directly elected presidency with one elected by a three-fifths vote of the parliament. (The amendments also seem to have raised the age of eligibility to 40 from 35.) Unfortunately, the country’s political deadlock has prevented any candidate from receiving the necessary supermajority in parliament. Sunday’s referendum was designed to approve constitutional amendments to end the decade-long experiment with an indirectly elected presidency and return to direct public election. (There were other issues including confirming Romanian as an official language.) But voter turnout of 30% failed to meet the requirement of one-third of eligible voters. Analysts attribute the low turnout to apathy and a boycott by the opposition communists.

While no doubt a source of great frustration for the government, the failure perversely highlights one of the virtues of the semi-presidential system. It has long been argued that semi-presidentialism resembles presidentialism when the government is united, and parliamentarism when the government is divided. In the present instance, with a caretaker president, power naturally flows to the parliament and government. This may not have been the ideal of the constitutional drafters but still will leave the country able to function, assuming that the parliamentary elections produce a clear government mandate.


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Published on September 6, 2010
Author:          Filed under: hp, Moldova, Tom Ginsburg

Freedom of Expression Endangered in South Africa

The post-Apartheid South African press and media have traditionally been vigorous. They have frequently criticized the government as well as opposition groups. The press and media there can sometimes be a bit sensationalistic (hardly unique to South Africa of course). But it’s fair to say that the country’s press freedom has been good overall. This may be changing.

The ANC government of President Zuma has proposed a Protection of Information Bill. It would apparently allow government agency heads to categorize certain types of information as in the “national interest” and impose penalties on publishers or others who disclose the material. The ANC has also pushed to establish a tribunal that would monitor the print media. There’s little doubt that the ANC actions come from annoyance over reports criticizing Zuma and the government. But this is not the right approach. One reporter was even arrested for fraud shortly after publishing an article criticizing the national police chief. The New York Times has a good summary of developments:

The South African based blog Constitutionally Speaking has even more details: Fortunately, the leading South African trade union group (COSATU) has expressed reservations and is an important political entity connected to the ANC. It would certainly be ironic if the party that helped lead liberation in South Africa imposed such draconian restrictions. Hopefully, it won’t happen.

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Published on September 2, 2010
Author:          Filed under: hp, Mark Kende

USIP Studies of Constitution-Making


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Published on September 2, 2010
Author:          Filed under: Uncategorized

Iraqi constitutional failure and external enforcement?

A couple years ago, my co-authors and I published an examination of constitutions drafted under foreign Occupation. We wanted to ask whether constitutions drafted under such circumstances differ in quality and endurance from other constitutions (the answers were generally not). But we also identified a theoretical problem with such constitutions. In general, one feature of constitutional success is that they be “self-enforcing”, meaning that it is in the interests of those powerful groups that live under it to maintain it. The risk of foreign occupation is that the constitutions will be externally enforced: while this might seem to be a good thing, external enforcmenet might induce local actors to act strategically in ways the actually undermine the constitution.

It seems to me that this describes the current situation in Iraq, still without a government several months after the election. Major pieces of legislation have not been passed. The continuing presence of the Americans (notwithstanding the sort of-almost-partial withdrawal earlier this month) means that the risks of political failure are reduced. This has allowed Iraqi politicians to play a game of chicken, in which each side refuses to back down in favor of the other, undermining the very functioning of the constitution as a basis for political life. Even if no agreement is reached, there are limits to the damage that either side will suffer—Iran will not invade, Kurdistan will not secede, and civil war will not erupt.

At the time it was drafted, Professor Nathan Brown argued that no constitution was better than this one; but perhaps the problem are not the particular institutional choices in Iraq so much as the structural circumstances of its drafting.

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Published on August 27, 2010
Author:          Filed under: hp, iraq, Tom Ginsburg

An Unconstitutional Constitutional Amendment?

There has been much debate recently over a federal district court ruling that struck down part of Arizona’s controversial immigration law. The ruling essentially said that the Arizona law was preempted because this is an area of federal authority. The Court did not focus on the argument that the law invited racial profiling and other problems. At the same time, the idea is being floated that the 14th Amendment to the U.S. Constitution should be amended to deny U.S. citizenship to a baby that is born to illegal immigrant parents. Supporters of such an amendment even say the amendment’s original drafters would never approve of birthright citizenship. Supporter also argue that such children use up resources, and can become “anchor babies.” Some have even hypothesized these babies could be taken out of the country, trained to become terrorists, and then come back to commit crimes. There are many powerful counter-arguments. Some studies, for example, show that illegal immigrants pay taxes, and actually underutilize public resources. Moreover, the terrorist argument is a red herring according to some former FBI agents.

One very different argument could be made against this amendment derived from other countries such as India, Germany, and South Africa. The argument is that such a constitutional amendment would be unconstitutional. In some of those countries, courts have struck down constitutional amendments, that were passed through the accepted processes, because the courts reasoned the amendments were inconsistent with the most basic values of their fundamental charters. These values include human dignity and freedom. In the U.S. one could argue that this constitutional amendment proposal has similar flaws. As several U.S. Supreme Court cases indicate, laws enacted against groups based on irrational animus are not permitted. Such laws violate equality and dignity interests. Moreover, the Court in Plyer v. Doe held that the children of illegal immigrants cannot be punished for their parent’s misdeeds. The Court there struck down a Texas law as unconstitutional even though it did not burden a fundamental right or a suspect class. The law simply would have charged these children to go to school. Yet the Court concluded this could create a permanent underclass.

Denying birthright citizenship to the children of illegal immigrants would injure their dignity even more, and would also make them permanent second class citizens because of their parents’ actions. To be objective, the current U.S. Supreme Court would likely not find these arguments persuasive in response to passage of a birthright amendment. The amendment processes are treated as sacrosanct. But perhaps this is an area where racial animus and nativism is at play to such an extent, at least with many amendment supporters (though not all), that the Court should not be afraid to look at foreign constitutional law, as it has in some other cases. Perhaps the Court should consider such a draconian constitutional amendment to be unconstitutional.

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Published on August 19, 2010
Author:          Filed under: hp, Mark Kende

A Culture of Impunity in Niger?

Last week, the interim government of Niger announced a proposed amnesty for the country’s ruling junta in its new draft constitution. State radio channels hailed the action as the best possible outcome for the majority of “social and political forces.”

Although the text itself is still being finalized by the constitutional consultative council, the gist is that General Salou Djibo and his military allies would be protected from potential prosecution for their role in toppling the government of Mamadou Tandja. Mr. Tandja was overthrown in February of this year after taking controversial steps towards prolonging his official mandate despite the existence of constitutional term limits.

Ibrahim Yacouba, an official on the consultative council, was quoted by Radio France Internationale as arguing that the move was necessary and would ease the transition back to democracy when the junta voluntarily gives up control in March of 2011. Mr Yacouba also assured that it was not “the first time that such measures have been written into the constitution.” When asked if that, in itself, might pose a problem he assured that there was “no reason to fear that guaranteeing junta members amnesty would create a culture of impunity.”

Despite the councilman’s protestations however it seems clear that this “culture of impunity” is already in place. Niger’s history is rife with coups. For example, on April 9th, 1999 President Bare Mainassarra was shot dead boarding his plane in the capital city of Niamey and those behind the violent coup were granted amnesty – as had Bare Mainassarra himself when he came to power through coup in 1996. If this proposed amnesty is included it would mean that of the nation’s seven constitutions since independence in 1959, all save two (including the very first) will have included provisions for providing amnesty to those behind the dissolution of the previous government.

–Daniel Lansberg-Rodriguez, Caracas

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Published on August 19, 2010
Author:          Filed under: Daniel Lansberg-Rodriguez, hp, niger

Nardi on Thai Constitutional Court

Dominic Nardi has a nice short analysis here of Thailand’s constitutional court

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Published on August 18, 2010
Author:          Filed under: Uncategorized

A constitutional right to food for India?

The New York Times reports that India’s Congress Party is mulling a constitutional amendment that would guarantee a right to food. Some quick background info, not in the Times piece, to suggest that it might not be much of a surprise (or, as a practical matter, a big deal) if this were to happen:
(1) The Indian Constitution is easily and frequently amended, relatively speaking.
(2) When your constitution is already the longest in the world, running literally hundreds of pages, it becomes kind of hard to argue against loading up the constitution with “too much stuff.”
(3) Constitutional rights don’t all have the same effect in India as they do here. Yes, the Supreme Court of India is pretty vigorous when it comes to judicial review, but the Indian Constitution already contains a number of positive socioeconomic rights in Part IV’s “Directive Principles of State Policy,” which have been deemed judicially unenforceable, and presumably this right too would be placed in this section.
(4) At a global level, as an empirical matter, positive socioeconomic rights are becoming increasingly common, so in that sense, India would be in line with global trends to add another one. (The right to food, in particular, has become increasingly popular; whereas no constitution in 1946 contained such a right, about 15% do now. It’s also the case that the poorer the country (as measured by GDP per capita), the more likely it is to include such a right in its constitution. Those facts courtesy of a data set prepared by my co-author Mila Versteeg of the Centre for Socio-Legal Studies at Oxford.)
(5) And one last fact – in a manner of speaking, the Indian Constitution already contains something akin to a right to food; Article 47 (which falls under the judicially unenforceable Part IV) provides that the government “shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties.”

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Published on August 9, 2010
Author:          Filed under: David Law, hp, India, right to food, socioeconomic rights