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I·CONnect

Blog of the International Journal of Constitutional Law

Abortion foes battle Kenya draft

If the Kenyan Constitution fails in a referendum a little over a month from now, it may be largely the result of foreign groups lobbying against it. Three U.S. Congressmen are now calling for an investigation into US support for the Kenyan constitution, arguing that funds spent on civic education for the proposed draft violate the Siljander Amendment, which is a provision of the U.S. Appropriations Act stipulating that no USAID and State Department funds “may be used to lobby for or against abortion.” (Surely this is a broad reading of the word lobbying, and apparently the author of this controversial amendment is himself under indictment for lobbying violations.) American churches have also funded challenges to the carefully negotiated provisions on the Islamic courts in the Kenyan draft.

I for one think it that, of all the things the US might export to Africa, our culture wars should not be at the top of the list. Whatever ones views of the particular compromises undertaken in Kenya’s drafting process, the choices made are hardly insane. So we might take the approach of viewing the constitution as a bundle, to be evaluated in its entirety, and to be selected or rejected by the sovereign people of Kenya on their own terms. At the same time, in a global era, no constitution is autochthonous, and it is hard to draw a clear line between good and bad external intervention. Should there be a limit to external efforts to lobby for or against particular constitutional documents, or provisions therein?

–TG

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Published on June 4, 2010
Author:          Filed under: abortion, hp, Kenya, Tom Ginsburg
 

German President Resigns

In a historically unprecedented step, German President Horst Köhler resigned today. The apparent cause for his resignation is criticism over statements he made in connection with German military involvement in Afghanistan. Pursuant to Article 57 of the Basic Law, the president of the state chamber (Bundesrat) will take over his duties.

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Published on May 31, 2010
Author:          Filed under: Uncategorized
 

Dominic Nardi on Pakistan’s Judiciary: Suo Moto Tango

The Indian Supreme Court has become prominent (or notorious) amongst comparative constitutional law scholars for its judicial activism. However, if anything, the Pakistani judiciary has gone even further in finding creative ways to support public interest litigation (PIL). Under Article 184(3) of the 1973 Constitution, the Supreme Court has original jurisdiction over petitions to enforce fundamental rights. In order to encourage PIL, the Court waives locus standi requirements and filing fees. It has even initiated PIL cases through its suo moto jurisdiction.

Environmental PIL in Pakistan began rather modestly, with most claims limited to a particular case or controversy. However, in 1994, it received a boost when Dr. Parvez Hassan, a leading environmental lawyer, helped residents file a complaint against a proposed power grid station. In Shehla Zia v. WAPDA, the Supreme Court read a right to a clean and healthy environment into Article 9 of the Constitution, which protects the right to life.

After Shehla Zia, the Judiciary became a central actor in environmental policymaking. Courts often engage in a “rolling review” over implementation of Pakistan’s Environmental Protection Act. They also utilize commissions composed of government officials, businessmen, and environmentalists to resolve scientific questions and formulate policy. For example, in 2003, in Syed Ali Mansoor Shah v. Government of Punjab, the Lahore High Court established the Lahore Clean Air Commission in response to a petition against vehicular emissions. LCAC recommended introducing EURO II CNG buses; phasing out two-stroke rickshaws; and setting ambient air quality and vehicle emission standards within three years.

Perhaps even more astounding, the Supreme Court has issued orders suo moto to remedy environmental problems that come to its attention. In the mid-1990s, Justice Saleem Akhtar convinced the Court to issue an injunction against the dumping of chemical waste off a coastline in Balochistan – after reading about the problem in a local newspaper. The justices also demanded information on anybody who owned property near the coastline and inserted conditions into their leases against dumping waste.

In one recent case, Lahore Conservation Society v. Government of Punjab, the Chief Justice Iftikhar Muhammad Chaudhry (better known for his opposition to General Musharraf) ordered a halt to a road-expansion project after reading letters to the editor complaining about the logging. The Court first requested more information from the Chief Secretary of Punjab. Subsequently, several environmental lawyers filed suit. This past March, the Chief Justice ordered that no trees could be cut and asked the government to present alternatives.

While the Court’s concern for the environment is admirable, critics accuse it of exercising its suo moto jurisdiction arbitrarily. The power to exercise suo moto lies solely with the chief justice of each court. Justices seem particularly keen on causes that do not receive much attention from the government but are popular with the public, such as urban waste and crime. However, their information often comes from anecdotal evidence in the media, not through a systematic review. Some environmental lawyers have called for guidelines to clarify when courts can exercise suo moto jurisdiction.

Suo moto jurisdiction also raises larger questions about the sustainability of judicialized policymaking. Courts lack the technical capacity to formulate long-term environmental policy. Furthermore, by assuming such a pronounced role, judges might inadvertently atrophy the capacity of executive agencies. For example, when suo moto cases arise within their jurisdiction, some provincial EPAs become reluctant to take any action for fear that they might invoke contempt of court proceedings.

Given its recent history, Pakistan’s judiciary is in a fairly unique political position. However, it would be interesting to see how many other courts around the world have exercised suo moto jurisdiction on a regular basis to address public grievances. I would be certainly interested in hearing about other cases of suo moto activism in the comments section below.

–Dominic Nardi

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Published on May 30, 2010
Author:          Filed under: Dominic Nardi, hp, Pakistan
 

Greece, the Euro, and the FCC

The German Federal Constitutional Court (FCC) has denied an application for a temporary injunction to stop Germany’s contribution to the aid package for Greece (German decision here, English press release here). The challenged law authorized the federal government to guarantee loans up to 22.4 billion euros. Another constitutional challenge is in the works, as reported in the German press, against a law allowing Germany to contribute up to 148 billion euros to the euro aid package.

As observed here, German EU- and euro-skeptics had rather high hopes after the Treaty of Lisbon decision that the FCC might step in. Although the FCC emphasized its final say on the limits of European integration as posed by the Basic Law in that decision, it seems somewhat unlikely that the court will now play a major role with respect to the latest financial aid decisions of the federal government.

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Published on May 26, 2010
Author:          Filed under: Claudia Haupt, European Union, Germany, Greece, hp
 

2010 Annual Meeting of the Law & Society Association

The Comparative Constitutions Blog will be well represented this week at the Law and Society Association‘s Annual Meeting, held in Chicago’s Renaissance Hotel.

Here is a quick reference guide for those attending what promises to be fascinating conference:

Tom Ginsburg

Chair/Discussant
Session: Constitutional Law and Judicial Review in Asia
Friday, May 28, 10:15am-12:00pm

Author: How Do International Human Rights Treaties Affect the Design of National Constitutions?
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Discussant
Session: How Law Matters (or Fails to Matter) in Unlikely Places
Friday, May 28, 4:30pm-6:15pm

Participant
Roundtable Discussion: Courts and the Rule of Law in Authoritarian Societies
Saturday, May 29, 4:30pm-6:15pm

Ran Hirschl

Participant
Roundtable Discussion: Emergency: Political Liberalism and the Legal Complex in the Post-Colony
Thursday, May 27, 2:30pm-4:15pm

Mark Kende

Chair
Roundtable Discussion: Courts and the Rule of Law in Authoritarian Societies
Saturday, May 29, 4:30pm-6:15pm

David Law

Author: The Global Convergence of Constitutional Rights: An Empirical Analysis
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Zachary Elkins

Author: How Do International Human Rights Treaties Affect the Design of National Constitutions?
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Rosalind Dixon

Author: Constitutional Cascades
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Javier Couso

Chair
Roundtable Discussion: The Production and Dissemination of Legal Knowledge
Saturday, May 29, 8:15am-10:00am

Author: The Role of Constitutional Theory in the Transformation of Chile’s Constitutional Court
Session: Ideas in Action: Cultural-Ideational Forces and Court Reforms in Spain and Latin America
Sunday, May 30, 8:15am-10:00am

Claudia Haupt

Author: Animal Advocacy as Political Speech: A Comparative Perspective
Session: Animal Law: Theory and Context
Friday, May 28, 8:15am-10:00am

Richard Albert

Author: Constitutional Handcuffs
Session: New Perspectives on Comparative Constitutionalism
Saturday, May 29, 2:30pm-4:15pm

Chair/Discussant
Session: Constitutional Law: A Comparative View
Sun, May 30, 10:15am-12:00pm

For location and other information, please consult the searchable database available here.

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Published on May 26, 2010
Author:          Filed under: hp, Law and Society Association;, Richard Albert
 

Wiki-constitutionalism?

The New Republic has just posted a nice essay by Daniel Lansberg-Rodriguez about what he calls wiki-constitutionalism in Latin America: the tendency of constitutions in the region to be changed as easily as wikipedia pages. Lansberg-Rodriguez points out the costs of rewriting, and argues persuasively that institutional stability will require overcoming wiki-constitutionalism.

He also ties frequent change to longer constitutions; however, in our recent book on global constitutional endurance we found no such connection, at least when one looks at all countries and controls for other factors. Instead there seems to be a secular increase in the length of constitutions, independent of their endurance. This seems to be driven by an increase in the number and type of rights, as well as new and more complex institutional structures.

I also like this comment by ironyroad on the TNR blog: “The [U.S.] Constitution is an Enlightenment intellectual exercise written as a British Romantic poem. As if John Keats had thought long and hard about representation and the separation of powers. The Latin American problem is that their constitutions are magical realist novels written as legal documents.”

–TG

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Published on May 25, 2010
Author:          Filed under: hp, Tom Ginsburg, venezuela
 

Kagan Confirmation Controversy?

The U.S. Supreme Court confirmation process has become increasingly polarized. While the system in other countries is not free of problems, things in the U.S. reached a new low lately when several prominent news commentators essentially called on Court nominee Elena Kagan to address whether she is gay or not (Maureen Dowd in the New York Times, and Andrew Sullivan who has a popular blog). Fortunately Dahlia Lithwick of Slate responded, and pointed out that such information is largely irrelevant to the key confirmation issues, and may simply reflect the media’s desperate need to drum up something controversial. I have been struck by two ironies regarding the Dowd-Sullivan positions. First, the U.S. Supreme Court has protected gay rights under a right to privacy rationale. Yet Dowd and Sullivan do not respect Kagan’s privacy. Second, I don’t believe either Dowd or Sullivan were exactly supporters of trying to impeach Bill Clinton when revelations of his activities with Monica Lewinsky were disclosed. So that adds to the question of why this Kagan information is relevant. Hopefully, the actual Senate confirmation hearings will be more substantive, and include serious conversations about constitutionalism (and even the use of foreign law) without some of the Kabuki ritual of the Justice Sotomayor hearings.

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Published on May 20, 2010
Author:          Filed under: hp, Mark Kende
 

US Supreme Court debate to heat up again

With the decision in Graham v. Florida, we are likely to see a renewal of the debate over whether and how to use foreign caselaw in interpreting the U.S. Constitution. As in his earlier decision in Roper v. Simmons, 543 U. S. 551 (2005), Justice Anthony Kennedy again utilized foreign sources to interpret the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution. This case involved a juvenile who had committed an armed robbery, received probation, and then received a life sentence for violating the probation by participating in a home invasion. The question of whether a life sentence without the possibility of parole was appropriate for juveniles convicted of crimes that did not involve killing. Kennedy found that only 11 nations allowed for life sentences in theory and only two–the United States and Israel–use it in practice. All of the juveniles serving life sentences in Israel were convicted of homicide. Kennedy’s reliance on the material is as persuasive, not binding authority: “The Court has treated the laws and practices of other nationsand international agreements as relevant to the Eighth Amendment not because those norms are binding or con-trolling but because the judgment of the world’s nationsthat a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.”

Predictably, this provoked comment from the dissenting justices. Justice Thomas, joined by Justice Scalia, notes the earlier debate and points out that “present legislation notwithstanding, democracies around the world remain free to adopt life-without-parole sentences for juvenileoffenders tomorrow if they see fit. Starting today, ours can count itself among the few in which judicial decree prevents voters from making that choice.”

The propriety of the practice of looking to foreign law has been subject to extensive analysis, including in an excellent new book by Vicki Jackson of Georgetown. My prediction is that the decision will reignite the debate just in time for Solicitor General Kagan’s confirmation hearings: expect the question of the propriety of citing foreign law to be a central focus for Senators Kyl and Sessions.

–TG

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Published on May 18, 2010
Author:          Filed under: hp, Supreme Court of the United States, Tom Ginsburg
 

New Socio-Economic Rights Book

An important new book on socio-economic rights has just been published. The book is called “Socio-Economic Rights –Adjudication Under a Transformative Constitution.” It’s published by JUTA press. The author is Sandra Liebenberg, the Harry F. Oppenheimer Chair in Human Rights Law at the University of Stellenbosch Law School in South Africa. Professor Liebenberg was involved in the drafting of the South African Constitution and is one of the world’s experts on socio-economic rights, among other topics. The book’s focus is heavily on the South African Constitutional Court’s innovative jurisprudence in this area, but the book touches on other countries as well.

Here is a description of the book from the publisher:

“Drawing on a wide range of interdisciplinary resources, this scholarly work provides an in-depth
and thorough analysis of the socio-economic rights jurisprudence of the newly democratic South
Africa. The book explores how the judicial interpretation and enforcement of socio-economic rights can be
more responsive to the conditions of systemic poverty and inequality characterising South African
society. Based on meticulous research, the work marries legal analysis with perspectives from political
philosophy and democratic theory. Cautioning against a traditional, formalistic conception of rights
and the separation of powers doctrine, the author develops a nuanced conception of substantive
reasonableness review in the context of socio-economic rights. She further argues for a reconstruction
of private law doctrines in the light of the normative purposes and values promoted by socio-economic
rights.

Socio-Economic Rights – Adjudication under a Transformative Constitution is up to date, including detailed
evaluation and critique of the most recent socio-economic rights judgments. It is set to have an impact
on debates about courts and socio-economic rights not only in South Africa, but everywhere else where
its topic has attracted interest.”

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Published on May 7, 2010
Author:          Filed under: hp, Mark Kende
 

Rights at Work?

For those of us who grew up in times and places where “socialist” was not considered an insulting adjective, May Day still means something. And notably more so if a person happens to live in one of the 170 countries or so where the regulation of working conditions, hours, wages, etc. is loose at best. Since it is May 1, nostalgic or irrelevant as it may sound to some, a question comes to mind: how beneficial has the constitutional rights revolution been to workers’ interests or labor’s cause more generally?

The relations between constitutional law and labor have always been ambivalent. Lochner is often mentioned as an example of the uber-libertarian, social context-less conceptualization of rights. At least from the late 1970s to early 1990s, when the idea of economic liberalization was in vogue (Milton Friedman, Margaret Thatcher and so on), there seemed to be a deep, ideological affinity between the conception of rights as essentially negative liberties and neo-liberal, small-state social and economic thought. The dominant notion of rights as negative freedoms seems to be based upon a view of society as composed of an unencumbered, autonomous and self-sufficient private sphere, whose members’ full realization of freedom is constantly threatened by the long arm of the encroaching state. Deregulation and privatization, free and “flexible” markets (at least as long as no government bailout is needed), economic efficiency and fiscal responsibility (the latter often perceived as a call for reduced public spending on social programs) were all fundamentals of the 1980s and 1990s orthodoxy of economic neo-liberalism. These objectives share a close affinity with concepts such as individualism, social atomism, and near-existential fear of “big-brother” state that inform the hegemonic discourses of rights. And to that one may add the practical fact that “unregistered” workers (e.g. illegal immigrants) are often not entitled to many constitutional and legal protections that citizens or legal immigrants enjoy.

Having said that, my impression is that the last decade or so has seen some direction change, with the blatant anti-workers line of the 1980s giving way to a relatively more balanced approach by policy-makers and constitutional courts alike. The right to unionize, strike, picketing, or collective bargaining, and certainly issues such as safe or harassment-free working environment, or issues of equity in hiring, promotion, diversity, or entitlement to benefits are taken quite seriously by courts. Likewise, subsistence rights jurisprudence has had some positive implications on the constitutional status of workers rights. Still, it seems that the contemporaneous decline of the Keynesian welfare state and rise of individual rights discourse is not coincidental, and in some cases may even be two sides of the same coin.

RH

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Published on May 2, 2010
Author:          Filed under: Labor rights, Ran Hirschl