Blog of the International Journal of Constitutional Law

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.


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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

Constitutional courts in hot political water in Bosnia & Herzegovina, and in the Republic of Macedonia

Several of the now independent countries, once republics of the former Yugoslavia are a constant source of politically signficant constitutional jurisprudence. The last week provided two illustrations. As our avid readers will recall, the European Court of Human Rights held last December that the “consociational” or “power-sharing” pact in Bosnia-Herzegovina (one of the outcomes of the 1995 Dayton Accords dealing with parts of the former Yugoslavia) unduly discriminated against politicians representing ethnic and religious minorities not included them in that pact. This brought to the fore the familiar tensions in post-conflict settings between a pragmatic, realist approach to constitutional power-sharing and a more principled or idealist approach to constitutionalism.

As expected in such a charged setting, the Constitutional Court of Bosnia and Herzegovina finds itself quite often in a boiling political cauldron. Its jurisdiction and composition were redefined in the Dayton Accords. By convention, two judges come from a Bosniak background, two of Croatian background, two of Serbian background (representing the largely Serb Republika Srpska), and three are internationally renowned jurists who cannot be citizens of Bosnia & Herzegovina or of any of its neighbouring countries. Currently, these are Prof. David Feldman (Cambridge), Prof. Constance Grewe (Strasbourg), and Tudor Pantiru (of Romanian-Moldovan decent, and former judge of the European Court of Human Rights). Judgments are published in Bosnian, Croatian, Serbian and English (just think of, say, USSC rulings published in 4 languages). The ECtHR ruling brought about talks on a constitutional amendment that could change the post-Dayton status quo. This may, under one scenario, lead to the elimination of the international judges component. In the meantime, the vast majority of the Court’s rulings are unanimous, probably in order to enhance the Court’s legitimacy and signal institutional unity in a political system that is anything but united.

In the last few days alone, the Court dismissed two showcase challenges to core constitutional provisions, one launched by the Bosnian member of the tri-partite presidency, the other by the Croat member of the presidency. It also contemplated its position with respect to the public appearances of one the Court’s own judges, Krstan Simic (of Serbian descent), who prior to his appointment to the Court in 2007, served, inter alia, as a prominent defence counsel (most notably, for Biljana Plavsic) before the International Criminal Tribunal for the former Yugoslavia in The Hague. Perhaps our readers in B&H can shed some more light on these cases.

Meanwhile in the Republic of Macedonia, a new lustration law came under constitutional scrutiny. The law has been advocated by the right-wing nationalist government and opposed by the SDSM (Social Democratic) party, a “third-way” successor of the communist party from the Yugoslavia days. The Constitutional Court temporarily froze several articles of the lustration law while it considers whether it would be constitutional to apply lustration to secret service informants active from 1991 onward, after Macedonia had declared its independence. The right-wing government attacked the Court for its decision to suspend parts of the lustration law, suggesting the opposition has an undue impact on the Court, while the center-left opposition said the government merely tries to intimidate the Court and to pave the way for an approval of the all-out lustration. Either way, the judicialization of politics, writ extra large. And that’s only one week in the life of these two constitutional courts.


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Published on February 8, 2010
Author:          Filed under: Bosnia, Macedonia, Ran Hirschl

Summer Programs in Comparative Constitutional Law

As the summer season approaches, so too are deadlines for enrolling in summer law school programs. 
For students interested in comparative constitutional law, here is a useful list of summer law school programs in comparative and international law. 
Let me highlight just a few options for students:

  1. Howard University School of Law’s Comparative and International Law Program in South Africa, featuring a course taught by South African Constitutional Court Justice Albie Sachs
  2. William & Mary Law School’s Summer Law Program in Spain, which includes a course entitled Introduction to Civil Law and Comparative Constitutional Law
  3. Gonzaga University School of Law’s Florence Summer Law Program, where Amy Kelley will teach a course on comparative rights and governmental structure
  4. Widener University School of Law’s Nairobi Institute, whose flagship offering is a course in comparative constitutional law
  5. Southwestern Law School’s Vancouver Summer Law Institute, in which I will offer a course in comparative constitutional law.
I wish all students a fun, productive, and fulfilling summer.
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Published on February 6, 2010
Author:          Filed under: education, hp, Richard Albert, summer law programs

Third Stage of Socio-Economic Rights

My first post showed how the South African Constitutional Court used a “reasonableness” test in assessing whether the state had met its constitutional socio-economic obligations. My second post explained that the Court recently required the government to “meaningfully engage” with vulnerable parties to try to resolve socio-economic disputes. Constitutional Court decisions, however, towards the end of 2009 harken a troubling third stage.

In Mazibuko v. Johannesburg, CCT 39/09, the Court essentially upheld Johannesburg’s policy of providing pre-paid water meters to certain poorer communities, despite the fact that the city imposed usage limits and payment requirements that could result in water cut-offs without adequate notice. The decision is troubling because the Court seemed inadequately concerned with how lack of water can result in health problems, fire dangers, and many other dilemmas. The Court also “recharacterized” its ealier Treatment Action Campaign decision in a restrictive way.

Moreover, in Nokotyana v. Ekurhuleni Metropolitan Municipality, CCT 31/09, the Court rejected claims by “informal settlement” residents that the government should provide a chemical toilet for a certain number of households, as well as “high-mast” lighting that could provide necessary security. Essentially, the plaintiffs sought more toilets than the municipality agreed to provide. Though the plaintiffs’ claims had some flaws, the Court gave the municipality a full 14 months to act, and also said that the plaintiffs who filed first should not end up better off than other squatters. The reasoning in both cases is far from transformative, which is one of the South African Constitution’s goals. What makes these cases particularly troubling is that the Constitutional Court has five new Justices, four of whom were appointed by the new President of South Africa, Jacob Zuma. If these Justices are not bold and independent, this trend favoring the government could continue.

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Published on February 5, 2010
Author:          Filed under: Mark Kende hp

Chinese Constitutionalism Again…

Tom Ginsburg and Mike Dowdle have invited me to respond to Mike’s critique last September in this space of a comment of mine, and I both thank them for the opportunity and apologize for taking so long. In a previous life I was probably a contractor.

Mike confessed himself depressed by a reported statement of mine that the constitution was “the least important document in the Chinese legal system.” While I don’t think I’ve made that statement in print or ever really fleshed it out, I freely admit to saying things like it on many occasions. But I’m not sure what has driven Mike to reach for the Prozac. He reads my statement pretty much as I meant it, and even agrees with it.

Mike understands me to mean that “insofar as China’s positive legal corpus is concerned, the constitution is much less likely to be formally cited than are (other) positive legal instruments.” Actually, I’m not really worried about whether the constitution gets cited or not, and my statement is not court-centric; what I’m talking about is whether the constitution is a meaningful source of rules that are supposed to be followed in the same general way that we understand, say, National People’s Congress legislation to be a source of such rules. But in any case, Mike says that he agrees with his reading of me.

So what is the problem? It seems that Mike does not like the way my statement implicitly defines “legal system.” As he says, “the idea of a ‘legal system’ can encompass far more than its juridically-authoritative texts[.]” Certainly it can. But must it always? If we can define “legal system” broadly for some purposes, can we never define it narrowly for others? Was my purpose in my statement less legitimate than Mike’s in his? To take an American example, the Declaration of Independence and the Federalist Papers can be said in some sense to be part of the American legal system and to have constitutional importance, but it does not follow that it no legitimate purpose is ever served, or knowledge gained, by distinguishing them from the document called the United States constitution.

Mike is too sophisticated, I am sure, to imagine that words can have only a single meaning that must apply at all times and in all contexts. And even if he did believe that, he is too modest, I am also sure, to imagine that he alone has a grasp of that single correct definition. The best test of a definition is whether it is useful. Does it, for example, allow us to say anything that is not obviously or tautologically true? I believe the limited notion of “legal system” contained in my statement does so. For it is possible to imagine constitutions in a legal system so defined that are not the least important document, and therefore, my claim about China’s constitution is meaningful and tells us something that is not obviously true and that indeed might be false (although Mike does not assert this). It is therefore, I think, a statement worth making, and I am at a bit of a loss as to how to understand the practical implications of Mike’s critique. He seems to agree that my statement is accurate, as far as it goes, but fears it will be misunderstood. Does that mean I and others simply shouldn’t make it? Does he mean that the assertion, while true, is so minor that its prejudicial effect (to use the language of evidence law) outweighs its probative value? If my observation is both accurate and worth making, how am I supposed to make it?

I should add that Mike misreads me in saying that my statement is about “deficiencies”; it is his view, not mine, that the failure of the rules of the document labeled “Xianfa” to be followed is ipso facto a deficiency. I think he attributes this view to me because we probably have a real disagreement on a very fundamental point, which is whether China is quite different from the US or pretty much the same. It would be silly to maintain that everything about China is absolutely unique and sui generis, and I don’t maintain it. At the same time, however, it would be an astonishing coincidence if a country with China’s history were to end up with a legal and political system that had a lot in common with that of the US—or to use Mike’s words, that its “constitutional experience” would be “of a kind shared by American constitutional understandings.” To say that different societies are different is sometimes tarred as an ethnocentric exoticizing of the Other; but it seems to me that saying they are the same commits the same sin: imagining that everyone is just like Us under the skin, and that cultural differences amount to little more than different ways of circular dancing and the wearing of funny hats. We ought to be methodologically open to the possibility that things in some places really are different.

Finally, in case there is any doubt on the matter, I reject the idea that cultures (political, legal, or otherwise) are unchanging and eternal—in fact, I don’t even find the term very helpful in most contexts—and thus I certainly do not want to be read as Mike fears I will be read: that China can never have constitutionalism as he understands it. Nor does it mean that any of the phenomena he discusses aren’t worth looking at; of course they are. But neither of these conclusions follows from my statement. If some people find them there, there will be plenty of time for Mike to get depressed then.

–Donald Clarke

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Published on February 4, 2010
Author:          Filed under: China, Donald Clarke, hp

Japan’s Prosecutors Score a Big Win

UN human rights committees and other international observers have called for major changes to Japan’s interrogation procedures for more than a decade, claiming that extended interrogations without the presence of counsel deny fundamental rights. The most commonly proposed remedy is complete recording of interrogations. The DPJ appointee as Minister of Justice is a progressive member of parliament named Keiko Chiba who has called for this reform and many others since she was first elected in the mid-80s. In her inaugural remarks back on September 16, Ms. Chiba announced that implementing recording of interrogations was one of her top three objectives. See my short profile of Ms. Chiba and report on her remarks here.

Needless to say, Japan’s prosecutors saw the Minister’s comments as a declaration of war, an intrusion on the interrogators’ efforts to build rapport with suspects and find the truth. (This is the justification presented by government representatives to international human rights committees.) Black box interrogations produce the confessions universally described as the “king of evidence” in Japan’s criminal prosecutions. Ms. Chiba wants to change all this.

Not so fast, Minister! In their ongoing investigation into the finances of DPJ bigwig Ichiro Ozawa, the prosecutors arrested three of his former aides on Friday, January 15. (One is an elected member of parliament. All three remain in detention as of this writing.) In remarks to the press five days after the arrests, Prime Minister Hatoyama said the government would NOT submit a bill requiring recording of interrogations this year “because there is a possibility this might be seen as a criticism of the prosecutors,” according to the Japanese Asahi report. For an English reference, see here.

By the way, if YOU served as counsel to a suspect under interrogation and you wanted to know what he’s spilling, you might be able to read about it in the newspaper. See, e.g., this story. This can’t be procedure envisioned by the drafters of Japan’s Constitution back in 1946 when they stuffed it with so many provisions designed to protect due process.

–Larry Repeta, Tokyo

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Published on February 2, 2010
Author:          Filed under: criminal justice, Democratic Party of Japan, hp, Japan

Renewing the Upper Chamber in Canada

The Canadian Prime Minister has recently appointed a slate of five new Senators to the Upper Chamber.

Two things are significant about this latest round of Senatorial appointments. First, the governing Conservative Party now holds a plurality of seats in the Senate after spending years in the wilderness of minority status. Second, the prospect that the Conservative Party could soon control a majority of the Senate has persuaded the opposition Liberal Party to fall in line behind the Conservative proposal to establish term limits for Senators. Canadian Senators currently keep their office until age 75.

But the Liberal Party has proposed something further than term limits alone to renew the Canadian Senate. The Liberal leader, Michael Ignatieff, has endorsed a 12-year renewable term for Senators, but with a wrinkle: “I’d even go so far as to limit the prime minister’s prerogative to appoint senators … I would pass it through a public service appointment commission so we scrub it and get the best possible appointees.”
This reform plan raises an important question of Canadian constitutional law: May the Prime Minister waive her constitutional duty, which she discharges through the Governor-in-Council, to appoint Senators?
The answer, I think, is no. 
For to restrict the prime ministerial power to appoint Senators would be virtually to divest the Prime Minister of the plenary appointment power she enjoys under the Canadian Constitution Act of 1867. And this would effectively constitute an amendment to the Canadian Constitution.
Scholars of Canadian constitutional law will surely be familiar with the troubled history of the enduring debate on Senate reform in Canada. If that debate has taught us anything, it is that these kinds of transformation to Canadian public institutions cannot be achieved by simple statutory bill.

Reforming the Senate in this way will require more than a parliamentary law in order to consummate such far-reaching changes to Canadian constitutional conventions and traditions. What will be required is a formal constitutional amendment.

Passing a constitutional amendment in Canada pursuant to the rule of 7/50 in the Constitution Act of 1982 (requiring the consent of 7 provinces representing at least 50 percent of the population) is perhaps just as difficult, if not more so, than scaling the monumental heights required by Article V of the United States Constitution.

Some scholars have suggested that the 7/50 rule does not apply to these kinds of changes to the tenure of Senators. They argue that one of Canada’s other amendment formulae will apply. But it is not clear how anything but the 7/50 rule can apply in this case because the proposed changes involve the selection of Senators–which is a matter expressly made subject to the 7/50 rule in Section 42 of the Constitution Act of 1982.

Nor am I convinced that limiting the prime ministerial power to appoint Senators does not in fact constitute a constitutional amendment.

In any event–and without necessarily endorsing or rejecting these proposals for Senate renewal from my own personal perspective–these current discussions about Senate reform augur great promise for advocates of Senate renewal in Canada because both major parties have reached agreement on an important point: that it is now time to move from life-tenure to term limits for Senatorial service.

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Published on February 2, 2010
Author:          Filed under: Canada, constitutional design, hp, Richard Albert, Senate of Canada

Kenya process moves forward…

Kenya’s Parliamentary Select Committee has now returned the draft constitution—heavily modified—to the Committee of Experts for reconsideration. The major change was dropping the semi-presidential system in favor of a pure presidential system with a directly elected president, reflecting demand from the public for greater clarity and clearer channels of accountability.

The switch from semi-presidentialism is interesting on a number of dimensions. It upends a bargain among the two leading political factions around Prime Minister Odinga and President Kibaki. With only one political prize to fight for, the stakes are higher and so competition will be intensified, hopefully without the horrific violence that accompanied Kenya’s last election.

Another implication concerns drafting processes. In the 1990s, Jon Elster argued that constitutions ought to be written by specially constituted constituent assemblies because legislatures would engage in self-dealing if they were involved in the process. In a recent empirical examination, we did not find evidence that parliament-centered drafting exercises produced constitutions with more parliamentary power. One might see the Kenyan parliament arguing for presidentialism as data point in this regard (though of course one can have fairly strong legislatures in presidential systems.)

We have not yet seen the draft, but it was reported that the PSC also removed the Human Rights Commission, the National Land Commission and the Gender Commission from the draft. The MPs proposed that instead of entrenching these commissions in the constitution they should be stipulated by Acts of Parliament. Parliament has an expanded number of constituencies in the draft, and there were modifications to the proposed system of devolution, a crucial political issue in Kenya. There were a few other smaller changes too, such as removing the entrenchment of Nairobi as the capital.

The Committee of Experts now evaluates the changes and will return the draft to parliament by February 25. Parliament then debates the draft for 30 days. If approved, the process jumps to publication of new constitution by April 26 then referendum on June 26.

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Published on February 1, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg