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Blog of the International Journal of Constitutional Law

Canadian Language Wars (yet again)

Canada is arguably one of the world capitals when it comes to language rights jurisprudence. The fundamental disagreements concerning the preferential status of French in Quebec vis-à-vis Canada’s commitment to bilingualism have been a perennial bone of constitutional contention over the last 30 years.

The formal status of English and French, as well as minority language education rights in the two languages are protected by s. 133 of the Constitution Act, 1867, and by ss. 16-22 & s. 23 of the Charter of Rights and Freedoms, 1982. Since the emergence of a nationalist movement in Quebec in the 1960s, and even more so since the rise to power of the Parti Quebecois in the mid-1970s, the Quebec provincial government has made a continuous effort to promote French and establish its status as the primary, or even sole, language in Quebec. In 1984, the Supreme Court of Canada ruled that the education provisions of Quebec’s Bill 101 (requiring that teaching in Quebec be in French only) contradicted s. 23 of the Charter and should, therefore, be struck down. In Ford v. Quebec (1988), the Court ruled that the provisions of Quebec’s Bill 101 requiring that public signs and advertisements may only be in French violated the Charter’s freedom of expression guarantee. It also ruled that a blanket use of an override declaration by the Quebec government (Bill 178) was an improper and invalid application of the Charter’s “override clause” (section 33 of the Charter). At the same time, the Court has issued a series of rulings protecting the status of French and French education in predominantly anglophone settings, from Alberta to Manitoba, and from PEI to New Brunswick. But the language question in Quebec continues to linger.

In 2005, the Supreme Court of Canada revisited the tension between Quebec’s Bill 101 and the Charter’s section 23, when it ruled unanimously that in determining a child’s entitlement to minority language education (in this case, education in English in Quebec), section 23 must receive a broad interpretation consistent with the constitutional objective of protecting minority language communities. The requirement in Bill 101 that a “major part” of a child’s past educational experience be conducted in English in order to be entitled for further English education must involve a nuanced qualitative, not a strict quantitative, assessment.

On October 22, 2009, another landmark Supreme Court ruling on the matter was released. Under s. 23(2) of the Charter, citizens of Canada of whom any child is receiving or has received instruction in the language of the linguistic minority (in Quebec, that would be English) may have all their children receive primary and secondary school instruction in that language. Quebec’s Charter of the French Language establishes that, in principle, French is the common official language of instruction in elementary and secondary schools in Quebec, but allows for children with some history of schooling in English to receive instruction in English in a public or subsidized private school in Quebec. That provision created a loophole that essentially allowed parents whose children were not entitled to instruction in English to send one or more of their children to unsubsidized private “bridging schools” (écoles passerelles) in English for a year so that they would then be eligible to attend publicly funded English schools.

In 2002, two new paragraphs (AKA Bill 104) were added to Quebec’s Charter of the French Language in response to that loophole. It suggested periods of attendance in such “bridging schools” as qualifying children for public education in English should be disregarded. A group of Quebec parents, naturalized immigrants of Asian origins (i.e. neither francophone nor anglophone background) argued that Bill 104 violated their constitutional rights as it effectively closed the only way open to them to acquire public education in English.

Drawing on a typical “section 1” analysis (the Canadian version of what has been dubbed “proportionality”), the Supreme Court ruled unanimously that Bill 104 was “excessive” in its infringement upon parents and children’s minority language education rights. The court also held that the loophole affected few students and that it did not pose a threat to the vitality of the French language in the province. The Court thus granted the government of Quebec a year to amend the law in a way that would balance more adequately between the preferential status of French in Quebec and minority language education rights in that province.

Quite predictably, the ruling awakened some nationalist sentiments in Quebec. Some of it is no doubt authentic. But part of it politically driven. The current Premier, Jean Charest of the moderate Liberal Party is portrayed by the Parti Qubecois opposition as too soft on Quebec sovereignty issues. The opposition’s staged outrage is thus meant in no small part to capitalize on the Court’s anti-Quebec decision to denigrate Charest politically. The opposition leader, Pauline Marois, said Charest had a duty, as the head of the Quebec nation, to protect the French language despite the court decision. “The Supreme Court, a court named by another nation, has once again hacked away at a tool that is fundamental for the Quebec nation,” Marois said. “How does the premier intend to correct the situation?” Only time will tell. Or in French (my 4th language, mind you): Seul le temps nous le dira.

RH

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Published on October 23, 2009
Author:          Filed under: Canada, Language rights, Ran Hirschl
 

Courts in authoritarian regimes


Some readers may know that I have an occasional interest in the role of courts in authoritarian regimes. There is a wonderful quote in today’s NYTimes from Iranian “opposition” leader Mehdi Karroubi, who has been threatened with trial at a special court for clergy. The concept of this special court is itself interesting: the court is used as a device to maintain cohesion within the dictatorial class, somewhat similar to Robert Barros’ found in his study of the Chilean constitutional court under Pinochet. The idea here is that constitutions can be used by authoritarian regimes to coordinate the disparate interests of the members of the ruling class.

But Karroubi’s quote, copied below, illustrates the additional idea that because of their public nature, courts can be used to rally support for the opposition, even in cases that they lose. Karroubi says: “I am not only unworried about this court …. I wholeheartedly welcome it since I will use it to express my concerns regarding the national and religious beliefs of the Iranian people and the ideas of Imam Khomeini, and clearly reveal those who are opposed to these concerns.” Courts are, as Tamir Moustafa and others have observed, double-edged swords.

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Published on October 23, 2009
Author:          Filed under: hp, Iran, Tom Ginsburg
 

Constitutional democracy as a national security strategy


Longtime China observer Jerry Cohen recently posted a critique of Taiwan’s government after its prime minister reacted against foreign critics. See here . One theme of Jerry’s comments is that Taiwan, as an island whose defense rests on explicit and implicit guarantees from the United States, is now of strategic value not because of its location but because of its values. The US might defend Taiwan because it is a democracy, but is unlikely to defend it for other strategic reasons in an era of a rising and important China. The interesting implication is that pursuing constitutional democracy might make sense not only for internal moral reasons, but as an element of a security strategy. Thanks to Tokujin Matsudaira for bringing the blog to my attention.

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Published on October 22, 2009
Author:          Filed under: hp, Taiwan, Tom Ginsburg
 

Term limits declared unconstitutional in Nicaragua

Current Nicaraguan president Daniel Ortega, elected in 2007 for a 5 year period, filed an amparo suit before the Constitutional Chamber of the Nicaraguan Supreme Court arguing that a 1995 constitutional amendment that imposed limits to indefinite reelection violates his constitutional rights. The Constitutional Chamber decided yesterday that it is unconstitutional to prohibit the reelection of the president of the Republic.

Daniel Ortega is the former leader of the Frente Sandinista de Liberación Nacional (FSLN), the liberation army that fought against the long dictatorship established in Nicaragua by the Somoza family. After the transition to democracy in 1985, Daniel Ortega was elected president for a 5 year period until 1990, when his party lost the election against the opposition lead by Violeta Barrios de Chamorro. It took Daniel Ortega seventeen years to go back to the presidency and now it seems that his plans are not to leave it that easily. Ortega was trying to get the necessary votes in the National Assembly to reform Article 147 of the Constitution and allow for his reelection, but was simultaneously pursuing a judicial strategy, which now seems to have worked best.

In declarations for a local newspaper, the president of the Constitutional Chamber, Rafael Solís, argued that their decision was supported by similar recent decisions by the Costa Rican Constitutional Chamber (the well-known Sala Cuarta, that made possible the re-election of current President Oscar Arias) as well as the decision by the Colombian Court allowing for the re-election of current president Álvaro Uribe. The Nicaraguan Supreme Court en banc, composed by sixteen magistrates, still has to ratify the decision made by its Constitutional Chamber.

JRF

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Published on October 20, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America, Nicaragua, term limits
 

Jamaican PM wants constitution to ban gay marriage

In our large project on the characteristics of written constitutions of independent nation-states, one of the questions we included was whether or not the constitution provided for gay marriage. We were somewhat surprised to learn that the only place with a clear constitutional right to gay marriage was our survey instrument! Indeed, the handful of constitutions that speak to the issue choose to ban gay marriage. Now the Jamaican Prime Minister wants to adopt a constitutional ban on gay marriage as part of a larger amendment of the Charter of Rights.

The American experience, and perhaps global experience, seems to be that courts are leading the way on the issue of gay marriage, with legislators much more cautious or even hostile. Perhaps that is unsurprising, but it speaks to the limits of reliance on legislative leadership on human rights. Professor Tushnet’s observation of a correlation of “Weak Courts, Strong Rights” may apply to only a limited subset of rights claims.

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Published on October 16, 2009
Author:          Filed under: gay rights, hp
 

The Debate about a Rights Charter in Australia – Part 2

Yesterday, the Australian government released the Report of the National Human Rights Consultation Committee, on whether Australia should make changes to its current system of human rights protection. See http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report_NationalHumanRightsConsultationReportDownloads

The Report contains 31 distinct recommendations for change in this area – some of which are clearly quite minimalist (e.g. recommendations about the desirability of increasing education about human rights and a federal government “rights audit). Other recommendations, such as the recommendation that the government adopt a UK-style model of rights charter (what the Committee calls a “dialogue” model) also purport to be minimalist in flavor but have the potential to have a profound effect on how the Australian High Court approaches the interpretation of statutes, and therefore also on the true capacity for Australian parliaments to engage in dialogue with the High Court (see further my article to this effect, forthcoming in the Federal Law Review). Certain ancillary recommendations the Committee makes in this context, such as the recommendation that only the High Court should have the power to issue declaratory remedies under such a charter (recommendation 29), also seem likely to worsen, rather than mitigate, this danger of substantive dialogic failure. The Report itself also fails almost entirely to acknowledge these dangers.

Given the target audience of the Report (a somewhat skeptical cabinet and general public), it is, of course, understandable that the primary focus of the Report is on making the case for a rights charter – by arguing, for example, that such a charter has the capacity to improve government decision-making, Australia’s international standing and promote a stronger “culture of rights”. It is nonetheless disappointing, given the length of the Report, that the Committee did not find space to address this kind of concern about a UK rights model. They seem to assume that the only real objection to such a model is that it may do too little to entrench (judicial interpretations of) human rights, rather than too much (see e.g. Report, 14.1); or at a minimum that by labeling their model “dialogic”, they can avoid this latter result. It is not just the American in me which doubts this …. There is a growing literature in the UK, Canada and Australia, as well as the U.S., which shows that as an ideal constitutional dialogue is not only highly contested, but also difficult to achieve.

Rosalind Dixon

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Published on October 9, 2009
Author:          Filed under: Australia, bill of rights
 

State constitutions database

We sometimes call attention to important resources for constitutional research. One is the database at the University of Maryland on state constitutional design, available here. There is increasing attention devoted to state constitutions, which provide interesting though imperfect analogues to national constitutions. For more on the relationship between the two, see Dan Rodriguez excellent post.

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Published on October 8, 2009
Author:          Filed under: hp, state constitutions, Tom Ginsburg
 

Constitutional convergence, international law, and … local government law?

Wherever there is government, there is by definition also constitutional law, in the sense of a set of legal rules, practices, and institutions that define and allocate public power. Everyone knows that constitutional law is not a phenomenon that occurs exclusively at the nation-state level. But that does not mean we are always mindful of all the levels at which constitutional law is generated. In the United States, the tendency is to focus on federal and state constitutional law; likewise, in Europe, the focus is on the law of the member states and that of regional bodies such as the European Union and the Council of Europe. But the full range of jurisdictions that possess what can be called constitutional law is wider than that. At one extreme is a city charter; at the opposite extreme is the United Nations Charter.

An increasingly evident phenomenon is the breakdown in the traditional distinctions between these levels: consider, for example, the increasing tendency of international law to impose both rights and responsibilities upon individuals as opposed to states. As these distinctions break down, it becomes easier for bodies of constitutional law at different levels of the hierarchy to influence, and even converge with, one another. But it is rare to observe direct interaction between bodies of law at distant levels of the hierarchy: it is not customary to see local governments, for example, responding directly to international legal mandates. The hierarchy itself mediates the impact that different levels have upon one another.

It cannot be taken for granted, however, that this hierarchy will continue to insulate the constitutional law of non-contiguous jurisdictions. In its own truly characteristic, why-am-I-not-totally-surprised-this-is-happening-in-Berkeley way, the City of Berkeley is demonstrating the possibility of level-skipping influence between non-contiguous jurisdictions. It has announced its intention to comply with United Nations human rights treaties, a development that the UN appears to welcome.

Here are some highlights from the story reported by both the UN Wire and the San Francisco Chronicle:

“Berkeley would become the first city in the United States to independently try to comply with U.N. treaties on torture, civil rights and racial discrimination, if the City Council passes a measure on the issue tonight.

The measure would require the city to file biennial reports to the United Nations on how – or whether – the city meets international human rights standards. In Berkeley, that could include its record on homelessness, the achievement gap among different racial groups at Berkeley High and the presence of John Yoo, a UC Berkeley School of Law professor and Berkeley resident who authored the Bush administration’s justification for torture. …

Berkeley would be the first city in the country, and possibly the world, to submit its compliance records to the United Nations, said Yves Sorokobi, a U.N. spokesman in New York.

‘We welcome citizen participation in trying to uphold these treaties, but in general they are directed toward countries,’ he said. Berkeley ‘has taken the lead here.’ …

Some on the City Council said they’re not sure Berkeley needs to comply with treaties to which the United States has already agreed. … There’s also the possibility that Berkeley might not be in compliance with the treaties, a potential embarrassment for a city that prides itself on civil rights and progressive politics.”

Your move, Cambridge, Massachusetts.

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The Debate about a Rights Charter in Australia – Part 1

Earlier this week, the National Human Rights Consultation Committee in Australia submitted its final report to the Australian government about whether Australia should adopt a national statutory rights charter, and if so, in what form– see Earlier this week, the National Human Rights Consultation Committee in Australia submitted its final report to the Australian government about whether Australia should adopt a national statutory rights charter, and if so, in what form– see http://www.humanrightsconsultation.gov.au/

What the government ultimately chooses to do in this context will be of significant comparative interest because Australia is currently one of the only constitutional democracies without a comprehensive written rights charter – and thus an interesting test case for the hypothesis of increasing constitutional convergence (see e.g. interesting recent work on this issue by David Law and Mark Tushnet).

The Consultation Committee’s report, however, is also of independent interest for what it reflects about the breadth of current commitments, across the globe, to extensive community consultation in the drafting of constitutional or even quasi-constitutional documents. Unlike in many post-conflict settings such as Iraq and Afghanistan (for a great treatment of consultation in this context, see e.g. recent work by Jennifer Widener), widespread consultation in this context in Australia was not a political necessity – but rather a clear choice. It was also, to my knowledge, far more extensive and interactive than any previous such process in Australia – lasting almost 8 months and involving a 3 day public hearing in the capital, 66 community roundtables in 52 locations and 35,000 written and online submissions (including one from this author).
What the Australian community ultimately said in this process will also be extremely interesting to read, and understand, when the government finally releases the Committee’s report – as a test case for the more general possibility of truly meaningful and informed community consultation on constitutional issues.
-Rosalind Dixon

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Published on October 1, 2009
Author:          Filed under: Australia, bill of rights, consultation
 

Egypt’s New Chief Justice

Over the summer a new chief justice was appointed to the Supreme Constitutional Court of Egypt (the SCC). The appointment of Farouk Sultan was controversial in Egypt. Justice Sultan does not have a distinguished judicial background and is widely thought to lack independence from the executive . The appointment raises all sorts of interesting questions about the rule of law in Egypt and, more broadly about the types of pressure that can lead a government that had once experimented with limited judicial independence to apparently give up entirely on the ideal.

Since Egypt’s SCC is not best known court in the world, let me give some background on the Court, explain why the appointment of Justice Sultan has been so controversial and then muse upon the possible lessons to be drawn from this appointment.

Comparative constitutional scholars over the past five years have become interested in the phenomenon of judicial review in autocratic countries. (This is different from the study of judicial review in new democracies—a phenomenon that has in recent years also come to be examined by numerous scholars) The phenomenon of judicial review in an authoritarian state raises all sorts of interesting questions. Why would an autocratic leader or party create a court with the power to overturn legislation that the autocrat, in its wisdom, has decided to impose? One possible answer is that the autocrat does not expect the court to have any independence or power. But, in fact, in some countries, the courts actually do seem to have acted in an independent manner and have overturned laws that the autocrats, in their wisdom, enacted. Some of these courts seemed genuinely to annoy the executives who had caused them to be created. So what explains the executive’s willingness to create courts that had the power to rebel? What caused these courts actually to do so? And what have been the longer-term ramifications of their decision to cross the executive?

Those interested in these questions have often looked at the history of Egypt’s SCC for insight. A constitutional court was created in the 1970s by an autocratic government. Its structure was revised in 1980. In the 1980s and 90s, it began to embark on a path of liberal activism which was unwelcome to the executive. Over the past 10 years, it has come under sustained (and quite effective) pressure from Egypt’s authoritarian executive and the executive dominated legislature. The executive response to unwanted action by the Court ranged from the subtle (pressure on NGOs that generated the litigation that allowed the Court to act) to the not-so-subtle (appointing loyal outsiders to replace the retiring Chief Justice and then dramatically increasing the size of the court to pack it with unaggressive jurists). With these changes, the Court fairly quickly ceased to be an independent and activist institution. The SCC came to be a reliable ally of the executive and has suffered a diminution of prestige.

A number of scholars have done important work on the Court, and they have proposed slightly different answers to the question of why it was created, how it came for a time to exercise some independence and why the government has been so effective in supressing the Court. The debate that has emerged has been very productive and has helped us better understand the dynamics that may be at work when authoritarians create courts with a degree of judicial independence. Nathan Brown and Tamir Moustafa have done particularly thorough work, both in monographs and in articles, some of which are available on the Web. (For those who don’t have the time to engage with these bodies of work as completely as they deserve, I recently published an article in the Journal of Comparative Law. In it, I summarize some of the conclusions that they have drawn about the Court and add my own views about the Court’s creation and career.)

One question that has divided observers is whether the Court might reemerge as a liberal and independent voice. Those who harbored hopes it might have suggested out that the government’s attempts to rein in the SCC has had real costs for the Egyptian executive. I, for example, have argued that one of the reasons the Court was allowed occasionally to act independently was because it provided legitimacy for all government acts that the court did not strike down—and the overwhelming majority of acts fell into this category. Assuming this is correct, the decision to suppress the Court thus could only be made if the executive felt that the costs of judicial independence outweighed the benefits to legitimacy that the Court could provide. But the Egyptian government’s own behavior suggests that it has been concerned at least to some degree about the costs of suppression. Most important, even as it suppressed the SCC, Egypt continued to pay lip service to the ideal of judicial independence. I have nursed the hope that the pressures that led the Egyptian government publicly to speak in support of judicial independence might lead that government actually to rebuild it.

But the appointment of Farouk Sultan suggests that the government is no longer interested even in paying serious lip service to the ideal of an independent constitutional court. Nathan Brown is one of the few Western analysts to comment on the appointment of Farouk Sultan to be Chief Justice of the SCC. His post on the Abu Aardvark blog can be found at

http://lynch.foreignpolicy.com/posts/2009/07/21/why_did_the_egyptian_regime_appoint_a_new_chief_justice

It is worth a read. Brown explains clearly why Justice Sultan is viewed by so many Egyptians as wholly lacking in independence. The executive must know that a court led by Sultan will invariably be viewed with distrust. Yet the executive still went ahead and appointed him. Why would he do this? The Court has not made much, if any, trouble for the administration over the past five years. Why would President Mubarak wreak further damage on an institution that could provide him with some much-needed legitimacy?

As Brown notes in his post, the best possible explanation for the Sultan appointment lies in the fact that the Supreme Constitutional Court of Egypt is not only the sole judicial organ with the power of constitutional review. Its Chief Justice is also empowered to oversee presidential elections. Furthermore,the court might be the final arbiter of electoral disputes that involve constitutional claims. Egypt is scheduled soon to hold an election that will probably result in a transition of power from the long-ruling President Hosni Mubarak to somebody else. That somebody else may quite possibly be Mubarak’s son Gamal. It may be someone else. But the election is in any case likely to be controversial and, thus, potentially dangerous to the current elites. As recent elections in Iran and Afghanistan have shown us, elections can be a remarkable opportunity for an opposition to embarrass a ruling party, and the potential for embarrassment becomes much greater if, as in Afghanistan, the bodies entrusted with investigating evidence of electoral fraud are even marginally independent. Even barring a reversal of reported results, tribunals with a conscience can cast doubt on the degree to which the government is supported and, of course, on its behavior. President Mubarak apparently wants at the head of the Supreme Constitutional Court a sympathetic figure. Justice Sultan is surely not the only such figure available. But as Brown notes, Sultan may be the only one who will reach mandatory retirement age a few months after the elections. This means that if Sultan is Chief Justice, Mubarak’s successor will be able to appoint a new Chief Justice fully loyal to him–something that should enhance the stability of the fledgling regime.

If this is correct, and most Egyptians think it is, then the need to have a sympathetic figure overseeing the upcoming elections has driven the Egyptian executive to appoint a Chief Justice who is likely to weaken further the reputation and prestige of an already beleaguered Supreme Constitutional Court. In the process, the current government has forgone the opportunity to rebuild its own legitimacy and, one assumes, that of its successor.

This is interesting, if a bit depressing. It raises intriguing questions about constitutional design. As a matter of constitutional design is it a poor idea in autocracies or new democracies to make a stand-alone constitutional court the final arbiter of election disputes? Many courts have this responsibility, and perhaps it is a dangerous one. Whatever pressures a government may have to interfere with the operation of an independent court will be magnified if the court plays a dispositive role in electoral politics—with potentially sad consequences.

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