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Blog of the International Journal of Constitutional Law

Socio-Economic Rights Resource

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

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Published on February 22, 2010
Author:          Filed under: Mark Kende hp
 

Survey of empirical research on constitutions, constitutionalism, and constitutionalization

For readers who might be interested in a brief overview and critical assessment of the empirical literature on constitutions, constitutionalism, and constitutionalization, may I suggest a new paper, entitled simply “Constitutions,” in which I focus on a couple of topics with potentially considerable implications for normative constitutional theory and offer some thoughts on where the field stands from a methodological perspective and how it might progress from here. The paper is available here.

Here is the abstract:

This chapter from the forthcoming Oxford Handbook of Empirical Legal Research offers an overview and critical assessment of the current state of empirical research on constitutions, constitutionalism, and constitutionalization. First, it describes how empirical research on “constitutions” has evolved into two distinct bodies of literature focused on different phenomena. Scholars from different disciplines have pursued distinct research agendas and favored different methodological approaches. De facto or “small-c” constitutions – meaning the collections of rules, practices, and understandings, written or unwritten, that describe how state power is actually allocated and exercised – have been the subject of a vast amount of social science research, much of which exhibits a quantitative or statistical bent. By contrast, the study of de jure or “large-c” constitutions – namely, formal legal documents that proclaim their own status as fundamental or higher law – has been largely the domain of legal scholars, who have tended to favor a qualitative, case-study approach.

The chapter next surveys the empirical literature on two topics that are, or ought to be, of considerable interest to those who study large-c constitutions. The first is that of whether constitutions matter. There is an enormous body of normative constitutional scholarship on the question of what kinds of institutional arrangements and personal rights and freedoms should be written into large-c constitutions. Much of this scholarship rests upon the implicit premise that formal constitutions are not mere parchment barriers but instead do in fact shape and constrain the structure and behavior of governments. This premise, however, finds only weak support in the existing empirical literature, particularly with respect to the efficacy of written rights guarantees.

The second topic of interest is that of the relationship between judicialization and constitutionalization. Empirical scholars have in recent years paid increasing attention to the related phenomena of judicialization, or the expansion of judicial policymaking at the expense of other government institutions, and constitutionalization, or the process by which formal legal instruments (primarily large-c constitutions) become effective sources of constraint upon state power and government action. These two phenomena are symbiotic. By characterizing policy questions as constitutional, courts claim exclusive authority over those questions and thus expand their power to make policy. In doing so, however, they also extend and reinforce the efficacy of the constitution. Thus, to explain how and why judicial power expands is also to illuminate one way in which large-c constitutions become effective as a practical matter.

The chapter concludes by discussing the methodological challenges faced by scholars who wish to do empirical research on constitutions, large-c and small-c alike, and by exploring possible solutions. These challenges boil down to the problems of inadequate data and causal complexity, which plague all of social science but are, for a variety of reasons, especially pronounced in the context of constitutions. Neither of the methodological approaches most commonly employed by empirical constitutional scholars – namely, case studies and statistical analysis – can by itself satisfactorily address these challenges. One solution is to practice methodological pluralism: by employing a combination of approaches, scholars can use the strengths of one approach to compensate for the weaknesses of the other. Another solution is to investigate innovative approaches such as laboratory experimentation and computer simulation. The chapter offers examples of how computer simulation, and agent-based modeling in particular, can be used to study constitutional phenomena that are difficult to investigate using traditional techniques. Given both the formidable methodological obstacles that constitutional scholars face and the limitations of the techniques that they currently use, such methodological possibilities demand greater attention.

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Prelude to the End of Mandatory Minimums in Canada?

On Friday, the Supreme Court of Canada may have signaled the imminent demise of mandatory minimum sentences. In Nasogaluak, a unanimous Court expressed deep reservations about the current sentencing regime in Canada.

Earlier, the Court of Appeal had declared that sentencing judges were bound by the statutorily prescribed mandatory minimum sentences, and therefore could not exercise any discretion to depart from them.

The Supreme Court did not accept such uncompromising restrictions on the judicial function.

Quite the contrary, wrote the Court, a judge may defensibly exercise her discretion to depart from the statutory mandatory minimum sentences in cases where there is evidence of “some particularly egregious form of misconduct by state agents in relation to the offence and to the offender” (para. 64).

The Court’s spirited defense of judicial discretion also doubled as an unmistakable rejection of the position advanced by the state, which argued that allowing a judge to exercise her discretion to reduce a sentence below the mandatory minimum “would undermine the principles of proportionality and parity” (para. 28). Not so, retorted the unanimous Court.

This is a significant development in the continuing evolution of Canadian criminal law. Yet we cannot be certain whether it signals the end of mandatory minimums.

On the one hand, the Supreme Court of Canada has, in this latest case, taken it upon itself to defend the discretionary prerogative of judges. The Court’s statements echo the very same themes that the Supreme Court of the United States articulated in Booker in 2005, which sounded the death knell for mandatory minimum sentences in the United States.

But, on the other, the Court ultimately ruled for the state, finding that this particular case did not present an instance where the judge would have been justified in departing from the statutorily mandated minimum sentence.

One thing, though, is certain: this is an area of Canadian law worth following closely.

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“Decolonizing” Justice in Bolivia?

President Evo Morales and his party MAS (Movimiento al Socialismo -Movement Towards Socialism) retained the presidency and won a comfortable supermajority in both chambers of Congress in the elections held last December 6, 2009. The consequences of that unquestionable triumph are beginning to be felt in Bolivia. A law passed last week, as several news services report, allows President Morales to directly appoint judges to fill the vacancies in the country’s Supreme Court (five, 41 %),the Constitutional Tribunal (five with their respective substitutes, 100%), and the Judicial Council (three, 75 %).In addition, that law ratified the interim Attorney General in his post and gave him the capacity to designate prosecutors in the regions where there local chief prosecutor office is vacant.

The government explains that these presidential designations are temporary and limited: the designees will serve until judicial direct elections are held on December 5, 2010; and, in the case of the Constitutional Tribunal, it is allowed only to decide cases that were filed no later than February 6, 2009. The explicit aim of the government’s law is to solve the huge amount of cases pending, update the judicial system and leave it up and running for the first elected judges that will take their posts at the end of this year. When announcing the appointments last week, President Morales added that these designations mark the beginning of the process that will “decolonize justice in Bolivia”.

Critics do not completely share the efficiency, neutrality, and revolutionary reasons given by President Evo Morales. True, ten more months with the top judicial institutions out of work would put the system in the brink of a disaster. However, it is important to remember that at least some of the causes of the huge backlog can be found in the undue interventions by President Morales’ previous government (2006-2008) in top judicial institutions. During those years, given that the government lacked the necessary 2/3 supermajority in the Senate to unilaterally appoint judges, it simply failed to fill the vacancies. Moreover, the government also used other more overt interventions such as impeachments, forced resignations, and even direct threats. With the use of these methods, the government completely dismantled the Constitutional Tribunal, and partially intervened also in the Supreme Court and the Judicial Council.

More important, among the cases filed before February 6, 2009 that the appointed Constitutional Judges will solve there are a few but important politically charged cases, which raise neutrality concerns. These cases include decrees passed by Morales in his previous administration, and also cases that the governors of the provinces dominated by opponents to Morales government (i.e. Santa Cruz, Chuquisaca, Tarija, Beni, and Pando) submitted to the Constitutional Tribunal asking it to ratify the constitutionality of the referenda on the autonomy of their regions. Interestingly, the Attorney General just ratified by Evo Morales will, also during this year, continue the prosecution of political figures that openly oppose the government such as the case against former president Gonzalo Sánchez de Lozada as well as cases against the very same regional governors who have been accused by the government of illegally funding the referenda that called for the autonomy of their regions.

It will be very interesting to follow closely the politically charged cases that the judicial designees will decide during the months they will be in office. This will allow us to make an empirically grounded evaluation of president Morales’s intentions regarding the “decolonization” of justice in Bolivia. Also, and perhaps more important, the performance of the current judges will send a strong signal to the Bolivian citizens about their justice system. Remember that those citizens will eventually vote to elect their judges at the end of this year.

JRF*

*I thankfully acknowledge the valuable discussion with, and information shared by Law Professor Neyer Zapata Vázquez from the Universidad Mayor de San Simón in Cochabamba, Bolivia.

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Published on February 21, 2010
Author:          Filed under: Bolivia, hp, judicial appointments, Julio Rios-Figueroa, Latin America
 

Niger: Another Term Limit Violator Bites the Dust

Niger’s coup d’etat on Thursday has provoked widespread international reaction, as the country has been suspended from the African Union and the coup leaders condemned by Ban Ki-Moon, the EU and ECOWAS. Citizens of Niger, on the other hand, seem to be fairly happy about the development. Last year, President Mamadou Tandja sought to amend the constitution to allow himself a third term in office, and promptly disbanded the constitutional court when it ruled against his attemnpt. He then called a snap referendum on the issue (see earlier discussion here), intimidating the opposition and probably rigging the outcome. The country’s politics have been frozen since.

I can only hope that this is one of the situations in which the international community “condemns” the coup-makers with a wink and a nod. Condemnation is appropriate to incentivize the return to democracy, but seems inappropriate if motivated by moral approbation about the removal of Tandja. Everything now depends on how the coup-makers live up to their name, the Supreme Council for the Restoration of Democracy.

More broadly, the removal of Tandja illustrates the risks involved in suspending term limits. To be sure, many popular and democratic leaders (think Cardoso in Brazil and Menem in Argentina) will amend the constitution to stay in office, and it is not clear as a normative matter that this is a bad thing. In Africa, however, there seems to be a trend for leaders elected during the third wave of democratization to backslide once in office, and to refuse to step down once their initial term draws to a close. Since 1990, term limits have been relaxed in at least Algeria, Cameroon, Chad, Gabon, Guinea, Namibia, Togo, Tunisia and Uganda.

Our ongoing research on the topic suggests that about 80% of leaders who attempt to overstay their term are successful in their attempt. Given these odds, its perhaps not surprising that Mamadou Tandja thought he could get away with his faux referendum last year. But sometimes just proposing a relaxation is a risky strategy–just ask Manuel Zelaya.

–TG

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Published on February 20, 2010
Author:          Filed under: hp, niger, Tom Ginsburg
 

Czech court outlaws extreme right party

As reported in several media outlets (e.g. here), the Czech Republic’s Supreme Administrative Court has banned the far-right Workers’ Party, established in 2003. The court held that the party advocates a dangerous xenophobic, homophobic, anti-Semitic, neo-Nazi agenda and thus poses an intolerable threat to Czech democracy. Perhaps some of our readers in the Czech Republic can add some imprtant details on today’s ruling, its conxtext and reasoning.

This appears to be an interesting ruling in several respects, in addition to the obvious question of constitutional democracy’s boundaries of self-defence. First, the rise of extreme right wing, radically nationalist, anti-immigrant, xenophobic parties in European politics is a phenomenon that stretches from France to Austria to parts of post-communist Europe. The troubled history of 20th century European politics is well known in that respect. A core justification of judicial review in the post-World War II era points to the utter failure of weak courts with non meaningful review powers to block the rise of Nazism and fascism in their early days. Second, the increasing number of high court rulings on disbandment of political parties, e.g. in Spain (the Basque party Herri Batasuna; approved by the ECtHR in 2009), Turkey (19 times since 1983, most recently the pro-Kurdish Democratic Society Party DTP), and Belgium (the Flemish right-wing separatist Vlaams Blok Party), not to mention countries where popular political movements are outlawed in the first place (e.g. the Muslim Brotherhood in Egypt). And to these scenarios we can add banning on corruption or on violation of election law charges of popular parties or elected political leaders (e.g. Thailand of the last few years). Third, the Czech Republic has an interesting recent history with respect to party politics in the courts. In 1993, for example, a law declaring the entire communist regime era illegal and illegitimate was passed, and even survived a constitutional scrutiny. Finally, it is not clear just how effective such bans on radical political parties actually are beyond the powerful symbolic statement itself. At least in the case of Belgium, the banned party resurfaced a few months after the ban, this time under a different name (Vlaams Belang) and with a slightly toned down platform.

RH

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Published on February 18, 2010
Author:          Filed under: Czech Republic, Ran Hirschl
 

Canadian Religion Cases

The Supreme Court of Canada in October of 2009 issued an important freedom of religion decision in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37. The Court rejected arguments that the Hutterites should be exempt from having photographs on their driver’s licenses. The Colony argued that the requirement violated their sincerely held religious beliefs. The Court ruled that Alberta’s interest in preventing identity fraud and theft, as well as promoting roadside safety, were sufficiently powerful justifications. Thus, Alberta satisfied the proportionality test under Canadian constitutional law. The dissenters argued that 700,000 Alberta residents don’t even have driver’s licenses, and that the Hutterites received an exemption for 29 years without significant consequences. Moreover, the dissenters said this placed a burden on the Colony that outweighed the benefits. The various opinions are quite detailed and this is just a summary of the major points.

It’s interesting to compare this case to the Supreme Court of Canada’s 2006 decision in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6. There the Court granted an exemption that allowed a 12 year old Sikh boy to wear a dagger to school despite a contrary weapon policy. The dagger, known as a kirpan, is a Sikh religious object that must be worn by someone like this boy. The Court there said the school could never attain absolute safety, that methods could be instituted to ensure the dagger was not dangerous (e.g. sealing it under the pants of the boy), that the boy had never been a behavior problem, that the boy would face an irreconcilable conflict between his religion and the school code otherwise, and that Canada’s multi-cultural values were at stake.

The question then becomes whether the Court in the Hutterian case can distinguish Multani. The Court said the Hutterian case involved a “complex regulatory response to a social problem,” Par. 37, not the use of a penal type code. Multani also involved only granting an exemption for one person. Yet there seem to be tensions. The Court in the Hutterian case said the goal was to reduce the risk of identity fraud “as much as possible”, Par. 59, whereas the Court in Multani said schools only need try to be reasonably safe.

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Published on February 15, 2010
Author:          Filed under: Mark Kende hp
 

A New Constitution in the Dominican Republic

The process of constitutional change in the Dominican Republic, which I mentioned in a previous post, has successfully come to an end. On January 26th, after a long, thorough, and civil process (characteristics that have been conspicuously absent in the region’s recent wave of “constitutional revolutions” in Venezuela, Bolivia, Ecuador) a new constitution was promulgated in the Dominican Republic. Well, the Dominicans call it new but it really was a huge amendment process carried through in all its steps precisely as the Constitution of 1966 prescribes. Our colleagues Elkins, Ginsburg, and Melton (2009, 55) distinguish a constitutional amendment from a replacement if the actors claim to follow the amending procedures of the existing constitution. The weird thing in the Dominican Republic is that the actors call it a new constitution although they followed to the letter the amending requirements of the previous constitution. This is, thus, a tricky and fun case to measure constitutional endurance.

The reforms were proposed by current president, Leonel Fernández, whose party has 68%of the seats in the Senate and 54% of the seats in the Chamber of Deputies, a cozy majority to pass laws but not constitutional amendments which had to be negotiated with other political forces. The reforms obtained the support of the second biggest party in the final vote, the Reformist Christian Party (PRC). According to some observers, the price for the consent of the PRC may be the inclusion of the most polemic change in the constitution: the protection of life since the moment of conception.

Regarding the judiciary, the reforms created a Constitutional Tribunal and strengthened the instruments for constitutional review. One innovation in the judicial system is the creation of a judicial council plus a so-called council of magistrates. The first is composed by members of all levels of the judiciary and has with vast powers to nominate and oversee the performance of lower court judges. The second is composed by members of the executive, legislative, and judicial branches and will designate judges for the Supreme Court and Constitutional Tribunal.

Some other interesting features of the new Dominican constitution are the inclusion of instruments of direct democracy, referendum and plebiscite, as well as a requirement of an approbatory referendum for future constitutional amendments that change fundamental rights. Regarding the torny issue of presidential reelection, Art. 124 states that “the president will be elected for a four year term and can not be elected for the following constitutional period”. Whether Leonel Fernández will step down in 2012 or will argue that he can run for his first term under the new constitution is to be seen.

JRF

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Is the Filibuster a Constitutional Convention?

Jake Tapper, ABC’s Senior White House Correspondent, reported yesterday that momentum is building behind the effort to change the current United States Senate rules which authorize the use of the filibuster. The filibuster is a procedural device whose consequence is to require supermajority support in order to vote on a legislative proposal.

Some, notably Senator John Cornyn, have argued that the filibuster is inconsistent with the fundamental majoritarian premises of the American Constitution. Others, like constitutional law giants Erwin Chemerinsky and Catherine Fisk, have taken the contrary view that the filibuster serves an essential countermajoritarian function. Both of these points merit serious thought and discussion. But allow me to set those aside for the moment.

Let us instead ask another question: has the filibuster, which is only a rule of Senate procedure, hardened into a constitutional convention?

Conventions arise in many ways, most typically in the political arena, when political actors agree by accession, repeated use, or acquiescence to abide by a particular political practice. We learn from the influential British public law scholar, Joseph Jaconelli, that a constitutional convention is a social rule that prescribes standards of behavior, allocates power among the institutions of the state, and moreover controls the exercise of that power. Most importantly, though, a constitutional convention is both non-justiciable in the judicial forum and therefore subject to evolution or revision by the political process itself.

In one respect, the filibuster appears to meet the basic condition of a constitutional convention. First, it was birthed in, and has grown, from political practice. Second, it allocates and controls power. And, third, it governs how political institutions interact, both intra-institutionally and inter-institutionally. 

On the other hand, the filibuster may not qualify as a constitutional convention because it emerges from nothing more than the rules of Senate procedure, and is therefore something that may be repealed or revised in the normal course of Senate business.

Neither of these perspectives resolves the question, certainly not conclusively nor even satisfactorily. And perhaps that is the point to discern from the very nature of a constitutional convention. 

Constitutional conventions endure only as long as they are worth enduring. Conventions are creatures of politics, and survive only to the extent the political will exists to breathe continuing legitimacy into them. Conventions are at once durable and adaptable, and they stand simultaneously in law and politics. 

And so perhaps it matters less whether the filibuster is indeed a constitutional rule than whether it continues to be deployed by political actors, and perceived by their constituents, as a legitimate political practice.
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Myanmar’s Constitution: Born to Fail?

In this interesting op-ed, Arnold Corso suggests that the answer to the question in the title is “yes.” The Myanmar constitution–17 years in the making–was produced in a behind-the-scences process with no public participation. It is fairly inflexible as well. Although it has a good deal of detail which we find to be associated with enduring constitutions, Corso predicts that on balance it was born to fail.

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Published on February 10, 2010
Author:          Filed under: hp, Myanmar, Tom Ginsburg