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I·CONnect

Blog of the International Journal of Constitutional Law

A New Chief Justice for South Africa

Today, President Zuma announced that Justice Sandile Ngcobo will be become the third Chief Justice of a democratic South Africa. The appointment is potentially significance in both: (1) what it says about Zuma’s commitment to judicial independence; and (2) what it signals about the likely direction of the Constitutional Court’s jurisprudence, at least over the next two years, prior to Ngcobo’s likely retirement (under the current Constitutional requirements).
Zuma initially considered appointing to the post Cape Judge President, John Hlophe, but the foreshadowed appointment was strongly criticized on the grounds that it threatened the independence of the judiciary. (A complaint has been lodged with the South African Judicial Services Commission against Hlophe for an approach he allegedly made to the Constitutional Court in relation to previous corruption proceedings against the President–
see http://www.capetimes.co.za/?fSectionId=&fArticleId=nw20090807160426356C574047
The decision to appoint Ngcobo over Hlophe is, therefore, a hopeful sign of Zuma’s willingness to respect the independence of the judiciary. At the same time, there is some suggestion that the President was influenced in his decision to appoint Ngcobo, over Justice Dikgang Moseneke, the current Deputy Chief Justice, by recent comments by Moseneke criticizing Zuma for an earlier attack on the independence of the judiciary –
see http://www.capetimes.co.za/?fSectionId=&fArticleId=vn20090807032911202C832679
If that is right (a suggestion the President strongly denies), the near-term future of judicial independence in South Africa is still far from completely assured.

Ngcobo’s appointment also signals that, while continuing its recent track-record of protecting individual rights, the South African Constitutional Court is likely over the next two years to take a somewhat more pro-majoritarian approach in some areas under the South African Bill of Rights. (For a great article on certain important instances of counter-majoritarian decision-making by the Constitutional Court, see Theunis Roux, “Principle and Pragmatism on the Constitutional Court of South Africa”, 7 International Journal of Constitutional Law 106 (2009).)

When it comes to the rights of prisoners, while a majority of the Court in Minister of Home Affairs v NICRO, CCT 03/04, for example, struck-down a law disenfranchising prisoners, Ngcobo would have upheld the law except as applied to those in detention pending trial. In various cases involving claims to sexual freedom, Ngcobo has also taken a somewhat conservative, pro-majoritarian position in writing for the Court in dismissing a Constitutional challenge to prostitution laws (Jordan v The State, CCT 31/01); and in adopting a narrow view of the scope of freedom of expression as applied to nude dancing (Phillips and Another v The Director of Public Prosecutions, CCT 20/02).

In other contexts, in dissent Ngcobo has advocated even stronger protection of individual rights than the majority, but generally in contexts where the right in question has strong support from black South Africans (see e.g. Prince v. The President of the Law Society, CCT 26/00, involving the right to sacramental use of cannabis).

Those who recall President Nixon’s attack on the U.S. Supreme Court during the 1968 Presidential elections, and his subsequent appointment of Warren Burger as Chief Justice, might see some parallels in South Africa today. From this perspective, there may be reason to hope that Zuma’s previous anti-court rhetoric is gradually taking a form that from an American standpoint is both far more familiar and less threatening.

-RD
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Published on August 7, 2009
Author:          Filed under: courts, south africa
 

Investigations and the Supreme Court of Mexico

According to The New York Times, the Supreme Court of Mexico will be setting up a commission to investigate a fire at a day care center in June that resulted in 49 deaths.

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Published on August 7, 2009
Author:          Filed under: Uncategorized
 

Conference on Comparative Constitutional Law

From the website of the Pace International Law Review, a conference on comparative constitutional law, described below:

Pace International Law Review will hold a symposium entitled Comparative Constitutional Law: National Security Across the Globe. The symposium is scheduled to be held in November of 2009 as an all day event with multiple panelists and guest speakers. The editors of Pace International Law Review invite proposals for articles, essays and book reviews from scholars, researchers, practitioners, and professionals for contributions to be considered for presentation at the symposium and subsequent publication on our newly developed and comprehensive International Law Website.

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Published on August 7, 2009
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The End of the House of Lords

What presumably is the last decision, ever, of the Appellate Committee of the House of Lords, was issued on 30 July. The jurisdiction of the Committee (and more) will be exercised from October 2009 by the new Supreme Court for the United Kingdom, sitting in the historic Middlesex Guildhall in Parliament Square, London.

Purdy, R (on the application of) v Director of Public Prosecutions [2009] UKHL 45 is a fitting finale to the work of the House of Lords, balancing judicial restraint with an application of the Human Rights Act in a manner that was both subtle and sensitive. The plaintiff suffered from severe and progressive multiple sclerosis. In due course, she wanted the option of ending her life, preferably with assistance from her husband, if that could be done without exposing him to prosecution. In England itself, the Suicide Act 1961 made it an offence to aid the suicide of another: s.2(1). Ms Purdy proposed to end her life in Switzerland, where assisted suicide is lawful. But it was unclear whether the British legislation would apply in any event, and how any discretion to prosecute would be exercised.

The case therefore involved two questions. The first was whether s.2(1) applied to an act of assisted suicide that began in England but ended in Switzerland. The second was the impact of the protection of ‘private life’ under the ECHR on the requirement for the DPP to consent to a prosecution under s.2(1). The case was resolved on the latter ground. Following the Strasbourg court in Pretty, the House held that the manner of dying is itself an act of life, that the Convention protection was attracted and that the right could be affected only in accordance with ‘law’. While the DPP had general prosecutorial guidelines, they were not sufficiently precise, in their application to this form of prosecution, to satisfy the requirements of legality under the Convention, so as to enable a person to ‘regulate his conduct without breaking the law’. It followed that the DPP must publish an ‘offence-specific’ policy on the circumstances in which prosecution is likely to be initiated, so as to enable Ms Purdy to make an informed decision.

The meaning of s.2(1) was not finally settled. It was not necessary to do so; and in any event, this case exposed difficulties in the application of the section, which were not fully canvassed in argument. But the case provides a vignette of the link between the House of Lords as a legislative and as a judicial body, which is now gone. As Baroness Hale noted, as the Law Lords moved to decision, the House of Lords as a legislative body was debating legislation that might have resolved the case, by limiting the offence of assisted suicide. The proposed legislation failed, in the face of arguments that suggested that the matter was better left to the discretion of prosecuting authorities. These events were mentioned in several Opinions in passing, as relevant both to a decision not to interpret the Suicide Act in a way that would, in effect, change the law and to the final decision of the House to require greater transparency from the DPP.

………………………….

By way of a postscript: note the article on ‘Farewell to the Law Lords’ in The Times on 30 July, by David Pannick QC. It traces the development of the Appellate Committee from 1824, when cases were heard by lay peers on a ‘daily rota’, to the appointment of professional Law Lords in 1876, to the (almost) final abdication of an active legislative role by the Law Lords in 2005. The House of Lords offers a stunning example of institutional evolution over a long period of time. It will be interesting to see how the British constitutional system adapts to the transition to a Supreme Court under a version of separation of powers, through what by contrast is a short sharp shock.
CS

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Published on August 7, 2009
Author:          Filed under: Cheryl Saunders, hp, United Kingdom
 

Symposium on constitutional design

A very interesting symposium issue of the Texas Law Review (June 2009) has just been published. It deals with the theory and practice of constitutional engineering and is aptly entitled “What, if anything, do we know about constitutional design?” The symposium issue includes fourteen articles by such luminaries as Sanford Levinson, Mark Tushnet, John Ferejohn, Bill Eskridge, Peter Ordeshook, and Walter Murphy; fascinating insights from a variety of settings, from Japan (by our fellow blogger David Law) to Iraq and Burma (Myanmar); and, to the extent that it is a testament to the symposium’s high quality, articles by several other contributors to this blog (David Fontana on the founding moments of American separation of powers model; Zachary Elkins & Tom Ginsburg on constitutional courts’ ancillary powers, and yours truly on success and failure in constitutional and other modernist “design sciences”). Alongside Constitutional Design for Divided Societies: Integration of Accommodation? (Sujit Choudhry ed., Oxford University Press, 2008), this collection seems one of the more significant current treatments of the theory and practice, promise and pitfalls of constitutional design. What is my take-home message from the symposium? As American graphic designer Paul Rand once said, “Design can be art. Design can be aesthetics. Design is so simple, that’s why it is so complicated.”

RH

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Published on August 7, 2009
Author:          Filed under: constitutional design, hp, Ran Hirschl
 

Approaches to Constitutional Change

One of the beautiful things about this blog is that I get to note new articles about topics like constitutional change in in Tonga:

The Constitution of Tonga, 132 years old in 2007 — indeed one of the world’s oldest extant constitutions — has recently, for the first time in history, been subjected to significant scrutiny by the people who live under it. The review process has also canvassed the views of the thousands of Tongans who live in the diasporas of New Zealand, Australia and the USA. However, in the context of an increasingly polarised political debate, the translation of the outcome of that process into constitutional change is proving a difficult task for Tonga’s leaders, and the two years that have elapsed since the general elections of March 2005 have been among the most momentous in history.This paper attempts to stand back from the trauma and hurt of recent events and to ask some underlying questions. How is it that the Pacific region is home to a monarchical system that still rules its people, and what has been the secret of its success? What are the changes to the political structure that are already occuring this century? FInally, what order of change is int the air — will it be constitutional reform on a major scale?While considering these questions, this paper also offers a Political Chronology in its Appendix, as a summary of the events through the 1990s and early 2000s which culminated in the formal process of constitutional reform and the current scene. These years have witnessed diverse developments on the Tongan political stage, which, when considered against the backdrop of conservative society, must be regarded as remarkable.

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Published on August 6, 2009
Author:          Filed under: David Fontana, hp, Tonga
 

Albert on Amendments

An article posted on SSRN, written by Richard Albert from Boston College Law School, might be of interest to our readers. Here is the summary:

The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitution. In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.

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Published on August 6, 2009
Author:          Filed under: amendment, hp, research
 

Chile’s Constitutional Plight

In light of the current crisis of Honduras, Chile’s constitutional plight represents an interesting, contrasting case.

While in Honduras the crisis started when the sitting President tried to bypass the Constitution’s prohibition against amendments aimed at allowing his own reelection, in Chile, a dictatorial regime managed to perpetuate important features of the military regime through the imposition of a Constitution which has only been reformed when both former opponents of the dictatorship and the political ‘inheritors’ of it have concluded an agreement.

Due to this dynamic, Chile’s Constitution of 1980 still exhibits important democratic deficits (most prominently, a ideologically ladden Bill of Rights and the requirement of a quorum of 4/7 of the actual members of Congres to ammend or derogate the most important legislation passed by Augusto Pinochet’s regime, the so-called ‘Leyes Orgánicas Constitucionales).

Given the illegitimate restraints on democratic self-government that the Constitution of 1980 imposes on Chile’s current democratic era, over the last years there have been repeated calls for the introduction of a new Constitution, notably by former President Eduardo Frei (who led the country between 1994 and 2000, and who is now running again for the presidential election of December, 2009).

The problem, however, is that the very Constitution of 1980 that many Chileans want to substitute for a more democratic one, forbids the executive or the legislative branches to call for a referendum aimed at asking the people if they want a New Constitution. Furthermore, the rules governing the ammendment of the Constitution (2/3 of actual members of Congress for the most important subject matters) make any constitutional ammendment not favored by the political inheritors of the dictatorship impossible. This has been the case with many democracy-enhancing ammendments which would have damage the privileged political position enjoyed by the latter.

In this context, the following question arises: How can a democratic polity deal with the anti-democratic constitutional legacy of an authoritarian regime without risking a huge constitutional crisis?

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Published on August 4, 2009
Author:          Filed under: Chile, hp, Javier Couso
 

Constitution-Making and Democracy

In light of the current crisis of Honduras, Chile’s constitutional plight represents an interesting, contrasting case.While in Honduras the crisis started when the sitting President tried to bypass the Constitution’s prohibition against amendments aimed at allowing his own reelection, in Chile, a dictatorial regime managed to perpetuate important features of the military regime through the imposition of a Constitution which has only been reformed when both former opponents of the dictatorship and the political ‘inheritors’ of it have concluded an agreement.Due to this dynamic, Chile’s Constitution of 1980 still exhibits important democratic deficits (most prominently, a ideologically ladden Bill of Rights and the requirement of a quorum of 4/7 of the actual members of Congres to ammend or derogate the most important legislation passed by Augusto Pinochet’s regime, the so-called ‘Leyes Orgánicas Constitucionales).Given the illegitimate restraints on democratic self-government that the Constitution of 1980 imposes on Chile’s current democratic era, over the last years there have been repeated calls for the introduction of a new Constitution, notably by former President Eduardo Frei (who led the country between 1994 and 2000, and who is now running again for the presidential election of December, 2009).The problem, however, is that the very Constitution of 1980 that many Chileans want to substitute for a more democratic one, forbids the executive or the legislative branches to call for a referendum aimed at asking the people if they want a New Constitution. Furthermore, the rules governing the ammendment of the Constitution (2/3 of actual members of Congress for the most important subject matters) make any constitutional ammendment not favored by the political inheritors of the dictatorship impossible. This has been the case with many democracy-enhancing ammendments which would have damage the privileged political position enjoyed by the latter.In this context, the following question arises: How can a democratic polity deal with the anti-democratic constitutional legacy of an authoritarian regime without risking a huge constitutional crisis?
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Published on August 4, 2009
Author:          Filed under: Uncategorized
 

Of Coups and Term Limits: Thoughts on the Niger Referendum This Week

All eyes will be on Niger this Tuesday as President Mamadou Tandja goes ahead with a referendum to allow himself to rule for three more years after completing his constitutional mandate of two terms this December. Recall that when the Constitutional Court ruled his proposal unconstitutional earlier this summer, Tandja assumed emergency powers and disbanded parliament as well as the constitutional court. Given his tactics to date, it seems unlikely Tandja will allow himself to lose.

The international community has been fairly critical. France and the African Union have called on Tandja to abandon his plans. The EU has frozen aid, and ECOWAS is threatening sanctions. (With typical moral clarity, UN Secretary General Ban Ki-Moon has called for restraint and non-violence by all sides on election day.)

Here is a hypothetical. Suppose the military were to step in on Monday to prevent Tandja from going ahead with his referendum. Suppose further that the military then promptly installs a civilian as interim president and calls for new elections. What would be the reaction of the international community? Probably a great sense of relief. It is certainly hard to imagine calls for the return of Tandja to power. But how, precisely, is this hypo different from what happened in Honduras in late June?

President Zelaya, in my reading, did violate the terms of the Honduran constitution, which states fairly clearly that proposals for extension of a term result in immediate loss of office for the proposer. In contrast, nothing in Niger’s Constitution prevents the president from disbanding parliament, so long as elections are called within three months (and they will be held later in August). The president has authority to declare a state of exception and to call referenda. To be sure, the constitutional court is inviolable, and so Tandja has clearly violated the terms of the constitutional text, as well as its spirit, in disbanding the court. But I suspect this alone is not the source of the very different reactions of the international community to the two situations. Honduran President Zelaya is a Chavezista in a region with an extensive history of US-supported military coups. The Obama administration needs to demonstrate a new approach to the region. So the politics matter, and matter a good deal.

Perhaps I am wrong and the anti-coup principle would be evenly applied in Honduras and Niger. This would, in my view, encourage further extensions of the executive term. Without threat of punishment by the military, more executives will seek to hang on to power. Term limits become simply the opening bid in a game wherein the constitution can be manipulated by incumbents to allow themselves to retain office. De facto life-term presidents may be the lesser of two evils, but they may not be. We might alternatively recognize that there may be some circumstances in which a bloodless coup is the least bad alternative. The issue comes down to this: does the military have any legitimate role in constitutional enforcement?

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Published on August 2, 2009
Author:          Filed under: coup, honduras, hp, niger, term limits