Readers of this blog know that we have been following the Kenya constitution-making process with a close eye. This coming week, debate is to begin in the parliament over the revised draft produced by the Committee of Experts. That draft has been considered by the Parliamentary Select Committee for the past couple weeks.
The signs are somewhat ominous. Prime Minister Odinga’s party seems to favor the current draft, while President Kibaki has focused on parliamentary revisions. Revision will take a 2/3 majority, so consensus is required. Some MPs proposed a retreat to work out a consensus, but that was not accepted and so debate will occur on the floor of the Assembly.
The crucial choice to move toward a presidential system as opposed to a semi-presidential one seems to be holding. But other issues identified by the PSC for proposed revisions include provisions regarding the legislature, devolution, the judiciary and transition. Devolution in particular is an important and charged issue for Kenya’s future.
Another issue that has reared its head is abortion. The draft is unusually restrictive of abortion, stating not only that life begins at conception but that abortion is prohibited, without even an exception for the life of the mother. Some MPs are apparently considering amending this, which will no doubt lead to conflict. Can you imagine what would happen if we in the US had to debate that issue and the whole constitution hinged on it? Stay tuned…
The ECtHR rules on Greek-Cypriots’ Right of Return; the ECJ rules on the Economic Treaty Status of Jewish Settlements
Two important rulings from Europe reinforce the increasing significance of supra-national quasi-constitutional regimes in dealing with international political hot potatoes. In a landmark ruling the ECtHR held last week (Demopoulos et al. v. Turkey)that Greek refugees who had fled northern Cyprus during the Turkish invasion in 1974 do not have an automatic, unqualified right of return to their ancestral land. The majority opinion accepted the Turkish position that the passage of time and the reality on the ground may override “family roots” and other such sentiments, practically holding that the rights of the de facto long term tenant may outweigh those of the original individual owner. Instead of actual return, material compensation may be sought. Turkey had established a remedial apparatus to address such claims by Greek Cypriots. The court took it to be an effective course of action.
The court stated that: “It is not enough for an applicant to claim that a particular place or property is a ‘home’; he or she must show that they enjoy concrete and persisting links with the property concerned. Some 35 years have elapsed since the applicants lost possession of their property in Northern Cyprus in 1974. Generations have passed. The local population has not remained static. Turkish Cypriots who inhabited the north have migrated elsewhere; Turkish-Cypriot refugees from the south have settled in the north; Turkish settlers from Turkey have arrived in large numbers and established homes. Much Greek-Cypriot property has changed hands at least once, whether by sale, donation or inheritance.”
While ECtHR rulings do not apply beyond Europe, the potential implications for other contested “right of return” claims seem to be far reaching. In the Israeli media, for example, the ECtHR ruling has been portrayed as supporting Israel’s claim that the Palestinian right of return (dating back to 1948) is not unqualified or absolute, and that any resolution would have to take into account the on the ground reality in the West Bank. It also occurred to me that this ruling appears, prima facie, to stand in contrast to the Australian High Court approach in Wik (1996), where it was held that numerous bona fides leases of land and changes of ownership over the years do not necessarily extinguish original indigenous title. Perhaps our fellow bloggers Rosalind Dixon, Cheryl Saunders or others who are well versed in Australian constitutional law care to elucidate this apparent difference?
Meanwhile, the ECJ ruled on Feb. 25 that goods produced in the Jewish settlements in the West Bank Palestinian territories cannot enjoy the EU trade and tax treaty privileges as goods produced in either Israel or the Palestinian Authority. That means that some of the export-oriented industries located in the Jewish settlements, ranging from food and wine to computer parts, will lose some of their competitiveness edge although it is not clear to what extent (the government may subsidize the added tax costs). At the declarative level, the ruling is essentially a statement by the ECJ that the Jewish settlements are neither a legitimate part of Israel nor part of the Palestinian Authority. So there may very well be a difference in the legal status of Jewish settlements in the West Bank and Turkish settlements in northern Cyprus.
By a 5-4 vote, South Korea’s Constitutional Court has upheld the constitutionality of the death penalty, per this report in the Hankyoreh. Notably, two of the justices in the majority called for legislative modification or abolition of the death penalty. The Korean Bar Association’s statement in response to the ruling describes “the prestige of the state” as being at stake, which suggests that South Korea might be feeling the pull of constitutional convergence on this issue. Having not carried out an execution in 13 years, South Korea is classified by Amnesty International as “abolitionist in practice,” which suggests that formal abolition of the death penalty might be of mostly symbolic value. Then again, constitutional law arguably serves more of a symbolic function than ordinary law.
The first issue of the Jewish Review of Books has just published an excellent critique by Joseph Weiler of the UK Supreme Court’s decision in the Jewish Free School Case (see our earlier posts here and here). The case held that the admissions criteria of the Jewish state-supported school, denying admission to a child whose mother had undergone a non-Orthodox conversion, amounted to illegal racial discrimination under the English Race Relations Statute. The Race Relations Act makes an exception for religious discrimination generally, so that a Muslim or Christian or Sikh school can favor applicants of a particular faith. But in the case of Judaism, the Court held that its status as both religion and ethnicity meant that discrimination in favor of adherents as defined through the internal processes of the religion amounted to racial discrimination.
Of course that conception of the case is unfair to the applicant, who was religiously identified and represented a branch of the religion with a different approach to what constitutes a valid conversion. So in some sense the court was being called on to adjudicate as between competing conceptions of who is defined as a Jew.
My own initial reading of the case was through the American lens of the establishment clause. If the British government chooses to use public funds for religious schools, surely it can insist on non-discriminatory admissions criteria. But when any single religion is especially affected by the non-discrimination policy, one should perhaps look a little deeper. The gist of Weiler’s argument is that the UK Court applied a profoundly Protestant understanding of religious affiliation in considering the school’s admission criteria. The Christian idea is that salvation is available to anyone who chooses it, and so religion becomes a matter of choice. Judaism has a different self-definition, encompassing both religious and ethnic dimensions. The admissions decision in question in the Jewish Free School case applied only religious critera: as the dissent says, the child would have been admitted regardless of ethnicitiy had he undergone a religiously acceptable conversion.
Once the British state decides to use public funds for religious schools, it ought to defer to internal religious understandings of membership in the group, rather than imposing modernist and Christian ideas of religion as a free choice.
To be sure, these religious understandings are themselves internally contested, which is precisely why the Court was called on to hear the case. But should not the Supreme Court adopt a stance of staying out of such internal religious processes? That certainly has been the approach of the US Supreme Court when called on to make similar determinations.
The Federal Constitutional Court in Germany has apparently reversed an anti-terror law that allowed authorities to keep information about certain telephone calls and emails for up to six months. The Court said this was a “grave intrusion” on privacy rights. 35,000 Germans supposedly joined in the appeal and the Court has ordered deletion of the information obtained. The Court also said that the circumstances and instructions for retaining the material were unclear under the law, among other problems.
Back in 2005, in a 7-2 decision, the Colombian Constitutional Court decided to uphold the constitutional amendment that allowed current president, Álvaro Uribe, to be reelected. Today, also in a 7-2 decision, the Colombian Constitutional Court decided that it won’t take place the referendum that would have given to voters the last word on whether Mr. Uribe could be re-elected for a third time. Press reports mention that the main reasons behind the Court’s decision are the insurmountable vices of unconstitutionality that occurred when collecting the necessary number of signatures from people in favor of having a referendum on the issue, in particular the violation of explicit spending limits in the pro-referendum campaign. The details of the arguments will be known once the decision is publicly released, but so far it seems that the decision falls on technical and procedural grounds and that the Court did not enter the difficult terrain of the constitutionality of term limits per se.
As our colleague Tom Ginsburg wrote in this blog recently, former Niger’s President Mamadou Tandja disbanded the constitutional court that ruled against his attempt to be reelected. In Latin America, Tandja’s decision is similar to that of former Peruvian president, Alberto Fujimori, who also impeached the constitutional judges who back in 1997 declared unconstitutional his attempt for a third reelection. Álvaro Uribe has not yet reacted to this decision by the constitutional court, but it is expected that he will fully comply with it. If that is the case, he will join the minority (20% according to Tom Ginsburg’s data) of leaders who are not successful in the attempt to overstay their term. And perhaps the much smaller minority of leaders who are not succesful because of a judicial decision.
Professor Randy Peerenboom has an important article now available on SSRN regarding Chinese constitutionalism. It’s called “The Social Foundations of China’s Living Constitution.” The URL is: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1542463Here’s the abstract:
The article examines the social foundations of constitutionalism in China, focusing on constitutions as a historical response to particular events. The goal is to move beyond an analysis of the constitution as a formal text to shed light on the de facto constitutional order in China, on China’s living constitution and its social, historical, cultural, economic, political and legal foundations. Part I begins with a brief historical overview of China’s constitutions. Parts II discusses the current constitution, passed in 1982, and its four subsequent amendments. Part III explores the main functions of the constitution in China today and how the constitutional order actually operates. Part IV discusses China’s living constitution. Part V concludes with some thoughts about the future of constitutionalism in China, and the possibility of a party-state alternative to liberal democratic constitutionalism.
Professor Larry Cata Backer also published a fascinating article on SSRN within the last two years discussing how the Chinese communist party’s internal processes can be viewed as a kind of constitutional system.
There is a wonderful resource for those interested in the issue of socio-economic rights in South Africa and other countries that may not be well known. It’s called the ESR Review, which stands for Economic and Social Rights in South Africa. It is produced by the University of the Western Cape Community Law Centre. It uses a newsletter format that gives descriptions and editorials on the latest developments in this area. It also covers developments in other countries. For example, the most current online issue (Nov. 2009) has a nice article about the right to health in Columbia. It can be found at: http://www.communitylawcentre.org.za/clc-projects/socio-economic-rights/esr-review-1