Blog of the International Journal of Constitutional Law

Constitutional amendment proposals in Turkey

Turkey’s ruling Justice and Development Party (AKP)has submitted a new version of their proposed Constitutional amendments to the Grand National Assembly. The draft differs only slightly in substance from the previous version that the party submitted. One of the new additions is a proposal to alter Article 157 of the Constitution to provide judicial immunity to judges of the Military Supreme Administrative Court would have judicial immunity.

The first version of AKP’s proposed amendments was submitted to parliament last Tuesday, despite warnings from Turkish President Abdullah Gul that the party should take more precautions before amending the constitution. The reform package contains seven revisions from the original amendments unveiled at the end of March, including a highly-disputed reform to the judicial system that would allow military and government officials to be tried in civilian court. The reform would also make it harder for the government to disband political parties that challenge the country’s nationalist establishment and would ban the prosecution of the 1980 coup leaders. AKP says it created the amendments to promote democracy in Turkey and support its bid into the European Union (EU). The proposed amendments have been met with opposition by Turkey’s Supreme Court. In an interview in late March, the president of the court Hasan Gerceker declared that the proposed amendments threaten separation of power and judicial independence. Another iteration in the longstanding struggles between the AKP and the military-judicial complex, if I can use the term.

Thanks to Serkan Yolcu for the heads-up!

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Published on April 7, 2010
Author:          Filed under: hp, Tom Ginsburg, Turkey

Update on Kenya

The Kenyan

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Published on April 6, 2010
Author:          Filed under: Uncategorized

Kenya parliament passes draft…

without amendments. we are not certain whether this means there were no amendments from the version proposed by the Committee of Experts in late February, or the version proposed by the Parliamentary Select Committee. stay tuned for more information…


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Published on April 2, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg

A Step Backwards for the Iraq Judiciary

The Iraq judiciary has made great strides in its capacity and independence since the fall of the Saddam regime, as demonstrated by brave and politically unpopular decisions made in the name of fair and impartial adjudication. In 2008 the Iraq Supreme Court vacated the Council of Representative’s decision to strip a parliamentarian’s immunity so he could be prosecuted for traveling to Israel. In so doing the court held that a 1950’s law making travel to Israel illegal violated the Constitution’s freedom of movement. In 2009 the Supreme Court overturned the de-baathification (and subsequent disqualification from office) of the President of the Iraqi Bar Association. In its brave and unpopular decision, the Supreme Court determined that de-baathification only applied to public posts and that the Bar Association, as a non-governmental entity, did not qualify. The previously de-baathified individual was allowed to resume his position.

It was hoped that these decisions were indicators of the type of judiciary Iraqi courts were becoming — independent, fair and impartial, and grounded in sound legal reasoning – and gave hope that the judiciary could play a pivotal role in the development of the rule of law in Iraq. Unfortunately, a recent decision involving the March parliamentary elections gives cause for concern.

In the wake of Iraqiyya’s (led by Ayad Allawi) victory over the State of Law Party (led by Prime Minister Maliki) – Iraqiyya won two more seats than State of Law – the Prime Minister has looked to the courts to secure his chances of retaining his post. Article 76 of the Iraq Constitution calls for the President to “charge the nominee of the largest Council of Representatives bloc with the formation of the council of Ministers.” In 2006 there was no uncertainty over the meaning of this provision – the United Iraqi Alliance, a coalition (formed before the election) of Shia parties, had the largest number of seats in Parliament and was charged with forming a government.

Arguing that the word “bloc” is ambiguous (the Constitution does not specify whether “bloc” refers to pre or post-election groups and the word itself can mean large or small coalitions), Maliki asked the Supreme Court to interpret Article 76 so that “largest Council of Representatives bloc” would be defined in terms of post-election coalitions that come together to form a government — giving Maliki the chance to reach agreement with other parties in order to create the “largest bloc” and therefore first crack at forming a government. In a disappointing reversal of the earlier (and more democratically principled) understanding of Article 76, the Supreme Court adopted Maliki’s reading of Article 76.

The Iraqi judiciary’s development over the past seven years is admirable and should be the envy of most other Arab judiciaries. One might even be tempted to give it a pass given the high stakes surrounding these elections – clearly emerging courts must pick their battles carefully, asserting too much strength and independence too soon could have long-lasting negative consequences. Still, one has to be disappointed with a decision that seems to favor the political establishment over the rule of law.

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A Step Backwards for the Iraqi Judiciary

The Iraq judiciary has made huge strides in its capacity and independence since the fall of the Saddam regime, making brave and politically unpopular decisions in the name of integrity and fair and impartial adjudication. In 200

The political turmoil over the Iraq elections was bound to touch the judiciary —
It could have been an opportunity for the judiciary to assert its independence and firmly establish itself as an

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


Legislation has been introduced in Quebec to ban women from covering their faces when seeking or providing provincial services. This would effectively prevent Muslim women needing such services from wearing the niquab, a veil that covers the face. Supporters argue this promotes gender equality and more open interactions between the province’s citizens. Even national liberal party leader Michael Ignatieff (a former Harvard professor) has indicated his general support. Opponents argue this would take away the choice of these women and infringes on their religious freedom. Newspaper articles regarding the issue suggest widespread support in Quebec. There have been several situations already where government related entities in Quebec have refused to provide services. Ironically, one of them involved a woman who was denied the chance to take a French language course. Thus, some supporters have argued the bill would simply clarify existing practices. Whatever one’s position, this proposal seems at odds with a Canadian constitutional theme that the nation takes a “mosaic” approach to diversity, unlike the U.S. “melting pot.”

On another Quebec religion topic, I recently learned, from a student and from other sources, that some profanity in Quebec uses Catholic terminology in a derogatory way. This is certainly different from the U.S where most profanity has a connection to sexuality. The veil and the profanity issue both suggest some general skepticism about religion in Quebec, to say the least.

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Published on March 29, 2010
Author:          Filed under: hp, Mark Kende

Gay rights in Zimbabwe: perhaps not just yet

If you’re looking for an example of a country where gay rights are not exactly catching on, look no further than Zimbabwe. The BBC reports that Robert Mugabe, not exactly a darling of Western liberals to begin with, had this to say about the possibility of introducing gay rights into the new constitution under discussion: “That issue is not debatable, it’s not up for discussion. It is just madness, insanity. The ancestors will turn in their graves should we allow this to happen.”

Oh but surely the brave leader of the opposition to Mugabe, and now Prime Minister, Morgan Tsvangirai, had something more enlightened to say? Not exactly. His words: “Women make up 52% of the population… There are more women than men, so why should men be proposing to men?” So … the reason not to support gay rights is that there are too many women to go around in Zimbabwe? It is for the good of women that gay men be pressured to marry them, because that is so obviously a formula for domestic bliss all around? And straight men, for their part, will be so pleased to have the added competition for wives? How delightful for everyone.

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Published on March 27, 2010
Author:          Filed under: David Law, gay rights, hp, Zimbabwe

Guest blogger Nardi: Courting Constitutional Chaos in the Philippines

Just six weeks before Filipinos go to the polls, a recent Supreme Court decision and a poorly timed birthday have caused yet another constitutional crisis. Under the 1987 Constitution, all Supreme Court justices must retire when they reach the age of 70. Current Chief Justice Reynato Puno will turn 70 on May 17. However, Chapter VIII, § 15 seems to prohibit the president from making any appointments two months before the next election (May 10) up until the end of her term in office. This means the Supreme Court would have to wait at least eight weeks for the next president to fill the vacancy. When incumbent President Gloria Macapagal Arroyo decided to proceed with the nomination process anyway, critics cried foul.

As is so often the case in the Philippines, the Supreme Court was asked to settle the dispute. In De Castro v. Judicial and Bar Council, G.R. No. 191002 (S.C. Mar. 17, 2010), the justices concluded that the § 15 prohibition against “midnight appointments” did not include judicial appointments. The ban is located under Chapter VII, which deals with the Executive branch, whereas the Judiciary falls under Chapter VIII. Moreover, sections 14 and 16 both deal exclusively with Executive appointments; if § 15 had had a broader scope, the constitutional drafters would have made the distinction explicit.

Second, the Supreme Court noted that Section 4(1) of Chapter VIII requires the president to fill any vacancy on the Supreme Court within 90 days. However, in some cases it would be impossible for a president to comply with both this mandate and the Chapter VII, § 15 prohibition. If an incumbent justice retired early in the election season, for example, 90 days might pass before a new president could replace him.

Finally, the constitutional drafters included the § 15 prohibition in order to avoid “midnight appointments” intended to buy votes or influence the outcome of the election. However, under the constitution, the Judicial and Bar Council screens and nominates judicial candidates in order “de-politicize the Judiciary.” Furthermore, the justices felt there would be less risk of a new justice feeling indebted to a retiring president than to a newly elected one.

Nine of the fifteen justices joined the majority opinion, while two justices who voted to dismiss on other grounds appeared to sympathize with the outcome. Three justices, Chief Justice Puno and his two most likely successors, abstained. Only one dissented.

As soon as the Supreme Court announced the verdict, it came under attack. Several members of the 1986 Constitutional Commission publicly stated that they had never intended to exclude the Judiciary from § 15. Some Filipinos have even accused Arroyo of seeking to appoint a chief justice in order to have an ally on the court who could thwart any attempts to prosecute her for corruption or human rights violations.

Meanwhile, the Arroyo administration defended the decision as necessary in case the Supreme Court has to decide disputes over the election results. Estelito Mendoza, a former solicitor general, dismissed fears that the new justice would be personally loyal to Arroyo by pointing out that the current justices, all of whom were appointed by Arroyo, have frequently ruled against her.

Indeed, over the years, the Supreme Court has announced sweeping decisions in favor of environmentalists and human rights activists. Progressive lawyers and activists have become the court’s strongest stakeholders. However, the De Castro v. JBC opinion threatens to undermine this alliance. The same lawyers who supported the court’s progressive policy goals are also Arroyo’s most vocal critics. They seem to view De Castro solely as a political vote of support for Arroyo. Furthermore, many of them considered Chief Justice Puno a champion of their causes, but view his likely successor with suspicion.

The Supreme Court also lacks allies among the main presidential contenders, who have attacked the De Castro decision so forcefully as to make President Obama’s State of the Union Address appear a model of decorum. Benigno Noynoy Aquino III, a senator and current frontrunner, even threatened to impeach the justices in the majority. Whoever wins on May 10 will not be pleased that the Supreme Court “robbed” him of the opportunity to appoint the next chief justice.

This whole imbroglio raises several fascinating questions about constitutions and judicial politics. How do constitutional courts interpret judicial appointment procedures and maintain an appearance of impartiality? Do “midnight judicial appointments” risk reducing the legitimacy of the court? What motivates courts to abandon certain stakeholders or support retiring politicians? The Philippines’ frequent constitutional crises have unfortunately stunted its political and economic development, but make it a fascinating place to study constitutionalism.

–Dominic Nardi

Editors note: Dominic J. Nardi, Jr. is a visiting research fellow at the Governance Institute. He holds a J.D. from Georgetown Law and a Masters in Southeast Asian Studies from Johns Hopkins SAIS. He has worked in the Philippines on several occasions with public interest organizations.

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Published on March 26, 2010
Author:          Filed under: hp, Philippines

Kenya process keeps chugging along

The Kenyan drafting process continues to move forward, with the debate in parliament due to wrap up this week. The MPs, having received the latest draft from the Committee of Experts and the Parliamentary Select Commission, have apparently made some changes toward consolidation of local government, a major issue in the drafting debates. Some of the MPs have pushed for more local units, while others have pushed consolidation.

Over the course of the drafting process, the number of units has gradually been reduced from 77 to 47 and now to 25. The initial draft had a scheme of relatively powerful counties and weak regions; this was replaced with a scheme of counties only, and the current proposal from the parliament is to have only regions. Whatever their name, some consolidation may be a good idea so as to avoid costly duplication of government structures and to encourage multi-ethnic governance within each constituent unit.

The local units will be the basis for formation of the upper house. Each region under the current proposal will send two representatives to the Senate, and will be joined by 10 Senators set aside for minority communities. A proposal to set aside seats for women was replaced with a requirement that each region send one male and one female representative, which may be a more workable scheme as it does not require a separate electoral process, and will ensure the over 40% of the Senate is female.

Another ongoing issue of debate is abortion. We had mistakenly stated that the draft prohibited abortion, but in fact the Right to Life clause in Article 26(4) states more loosely: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” This last clause in particular seems to allow wide scope for parliamentary modification. It is not clear from media reports whether the MPs have agreed on any changes.

Should parliament approve, the document will go forward to a referendum, for which voter registration has just begun.

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Published on March 24, 2010
Author:          Filed under: abortion, hp, Kenya, Tom Ginsburg

New President at the FCC & Some Thoughts on the Appointment Process

Last week, Hans-Jürgen Papier retired from his position as President of the Federal Constitutional Court (FCC) and chief judge of the First Senate upon expiration of his 12 year term on the court. His successor as President is the former Vice-President of the Court Andreas Voßkuhle (FCC press release in German here). Voßkuhle concurrently serves as chief judge of the Second Senate, a position he has held since 2007 when he joined the court. At 46, Voßkuhle is the FCC’s youngest President. He is a professor of public and administrative law at the University of Freiburg.

Ferdinand Kirchhof, who has been on the court since 2007, was elevated to chief judge of the First Senate and Vice-President of the FCC. He is a professor of public law and tax law at the University of Tübingen. (FCC trivia: Ferdinand Kirchhof’s brother Paul served on the court from 1987-1999.) The vacancy on the First Senate created by Papier’s retirement was filled with Andreas Paulus, professor of public law and international public and EU law, at the University of Göttingen.

FCC judges are elected for a non-renewable term of 12 years; the mandatory retirement age is 68. The only employment permissible in conjunction with a judgeship on the FCC is as a law professor at a German university. Three of the judges of each of the two senates must be elected from among the judges of the federal courts – Article 94(1)1 of the Basic Law requires that it be at least two; §2(3) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) sets the number at three. Half of the judges are elected by the federal legislature (Bundestag) and half by the state chamber (Bundesrat), each with a two-thirds majority. The Bundesrat elects its share directly, the Bundestag through a twelve-member committee on which members are represented proportional to their strength in the federal legislature (some scholars maintain that the election by committee is unconstitutional, violating the text of Article 94(1)2 Basic Law which demands election by the Bundestag).

Although the idea behind the two-thirds requirements presumably was to encourage multi party agreement on an individual candidate, the political reality is that judgeships are divided up between the two large political camps. By alternating appointments between the two camps, the membership of the FCC remains relatively balanced. Sometimes, a party does refuse to go along with the other’s nominee (as reported here regarding the SPD’s first choice before Voßkuhle, Horst Dreier). Even though its judges are appointed in a process of political compromise outside the public’s view, the German public overall continues to place great trust in the FCC as an institution. But a wider public debate over the nominees is virtually non-existent, mainstream press coverage on nominees is rare, and the FCC judges throughout their tenure remain largely unknown outside of the legal community.

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Published on March 23, 2010
Author:          Filed under: Claudia Haupt, Germany, hp, judicial appointments