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I·CONnect

Blog of the International Journal of Constitutional Law

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
 

Pakistan’s constitutional war continues

First off, these are no doubt good times for the comparative study of constitutions. A blog devoted to comparative constitutional law and courts would have been a near-fantasy merely a decade ago. More than anything else, its establishment reflects the growing interest and tremendous advancement in the comparative study of law and courts over the last few years.

My “landmark decision of the week” title goes to the Supreme Court of Pakistan, which ruled on Friday, July 31 that the state of emergency imposed by former President Pervez Musharraf in 2007 was unconstitutional and declared invalid the appointments of judges he made during that period. The ruling was hardly surprising; the 14-member bench that delivered the decision was headed by the reinstated Chief Justice Iftikhar Mohammed Chaudhry, whose attempted ouster by Musharraf spurred much of the unrest that led to the Musharraf’s downfall. The ruling is filled with acclaim for judicial independence, democracy, and other such great ideals. “The constitution is supreme, and this decision will strengthen democracy and democratic institutions,” Chaudhry wrote in his decision. That the reinstated CJ Chaudhry presided over the Court that decides the legitimacy of his own ousting was not considered by the Court as an obstacle to rendering an unbiased ruling. The decision questions the legitimacy of the former CJ Abdul Hameed Dogar’s appointment as Chief Justice following the attempted ousting of CJ Chaudhry. The court added that rulings made by the judges who were improperly appointed could still stand, and told Parliament to decide which of the laws that Musharraf pushed through during the unconstitutional emergency could remain on the books. Musharraf (who resides in London) ignored a summons to appear before the Court or send a lawyer this week to explain his actions. Either way, the ruling may be viewed as a strong judicial statement against future suspension of the constitution by the military – historically, a key player in Pakistani politics.

It is important to note that since 1990 Pakistan has known several major regime changes and the Pakistan Supreme Court has played a key role in each of these radical transitions. The Court’s handling of politically charged cases over the last two decades provides a paradigmatic illustration of the strategic approach to judicial behavior. In May 2000, for example, it drew upon the doctrine of “state necessity” and the principle of salus populi suprema lex to unanimously validate the October 1999 the Musharraf-lead coup d’etat and ousting of PM Nawaz Sharif as having been necessary to spare the country from chaos and bankruptcy.

And there is another interesting aspect to the ruling. One contested measure that could come up for review is an ordinance – signed by Musharraf before the emergency – that granted amnesty in serious corruption cases to Zardari and his wife, the late former Prime Minister Benazir Bhutto. (The corruption charges relate to Bhutto’s era as prime-minister). This possibility plays to the hands of Nawaz Sharif (leader of the Pakistan Muslim League-N party) – the main political rival of Zardari (leader of the Pakistan People’s Party and President of Pakistan as of September 2008). That Nawaz Sharif’s supporters joined the authentic “lawyers for democracy” movement and went out to the streets a year ago to demand Chaudhry’s reinstatement therefore might have been driven by more than a genuine commitment to civil rights and judicial independence. And this may also explain why Zardari himself was less than enthusiastic to unconditionally reinstate Chaudhry as Sharif demanded. Following the February 2008 elections, Zardari supported reinstatement only as part of a broader constitutional overhaul that would limit judicial power and the Chief Justice’s term.

So while Pakistan’s army attempts a crackdown on the Taliban and while its regional archrival (India) displays its nuclear submarine mega-project, the fierce constitutional war between Pakistan’s political elites marches on. Please stay tuned.

RH

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Published on August 1, 2009
Author:          Filed under: constitutional politics, hp, Pakistan, Ran Hirschl
 

Removal of judicial workers and freedom of expression in Venezuela

In the last four months, at least one hundred judicial employees and close to fifty judges from all Venezuelan regions have been fired, suspended, or have suddenly resigned. Unionized judicial workers sounded the alarm on July 13th because the special Judicial Commission set up by Supreme Justice Tribunal (TSJ) to carry on this job, have not even informed most of those affected of the reasons of its decisions.

This last week, two more news gave a new dimension to the work of the Judicial Commission. The first is that one of the suspended judges said she was pressured by a superior to prohibit the head of a television channel, which is openly critic to the government, from leaving the country and was dismissed after she refused to do so. According to media reports, prosecutors have accused the head of the channel of usury and conspiracy to commit a crime – accusations stemming from the recent seizure of 24 new vehicles on his property. The TV executive denies any wrongdoing, saying the accusations are politically motivated, and that President Hugo Chavez is using prosecutors and judges to bring trumped-up charges against prominent opponents.

The second is that a few days ago the Venezuelan Attorney General submitted to the National Assembly, in which President Chavez enjoys more than a majority, a legislative proposal that according to most observers unduly limits freedom of expression. The legislative proposal, among other things, typifies as “media crimes”, to be sanctioned with fines and different prison terms, any activity that puts in risk “social peace, the security and independence of the nation, the public moral and public order”. The legislative proposal also punishes “the publication of false information” and publications that put in danger “the interests of the state”.

Unfortunately, allegations of politically motivated firings and suspensions of judicial workers are not a novel event in Venezuela. A year ago, on August 5th 2008, the Interamerican Human Rights Court decided in favor of three judges fired in 2003, who argued that their suspension was motivated by some decisions favoring opposition mayors and governors. The recent removal of judicial workers and the Attorney General’s legislative proposal take place in the context of President Chavez’s recent urge to speed up the passing of “revolutionary laws” in preparation of the rapidly approaching 10th anniversary of the Constitution of the Bolivarian Republic of Venezuela, to be held on December 5, 2009.

–JRF

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Published on August 1, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America
 

The Spending Power in Australia

A recent decision of the Australian High Court has answered some questions about the source and scope of the federal spending power although many remain unresolved. Pape v Commissioner of Taxation [2009] HCA 23 also is of interest for a range of other purposes, including the interface between federalism and other institutional arrangements and comparative constitutional method.

The Australian spending power has developed differently to that of the two most closely comparable federations, the US and Canada, in part because of the chance inclusion in the original Constitution of an express power to make conditional grants to the States. The existence of this provision undercut the incentive to develop a more general power as a source of authority for payments to sub-national orders of government outside areas of Commonwealth regulatory authority.

Even so, the source of Commonwealth power to spend has been a long-standing issue when (as increasingly is the case) the Commonwealth prefers to spend directly, rather than going through the States. Past skirmishes exposed, but failed to answer the doctrinal question whether the source of any such power is the requirement for parliamentary appropriation (secs 81, 83) or the general executive power. In either case, there were further questions about the scope of a spending power and whether legislation enacted under the ‘incidental’ power could provide regulatory support for expenditure.

Pape revived these issues in the context of a taxpayer challenge to legislation that provided for the payments of ‘bonuses’ to low and middle income taxpayers as part of a package of stimulus measures in response to the global financial crisis. The challenge failed, by a narrow majority of 4-3, but the reasons of the Court, delivered some months later, made the outcome something of a pyrrhic victory. For the moment, at least, the federal power to spend parallels Commonwealth legislative power, supplemented by whatever attaches to ‘the character and status of the Commonwealth as a national government…in a federation’. As a short-term, urgent response to the global crisis, the tax bonuses did so and the incidental power was sufficient to give them legislative force. The validity of a raft of other spending programs remains to be worked out in later cases.

Following Pape, it is clear that the source of the power to spend is the federal executive power. The case thus also takes its place in a chain of Australian authority on the executive power more generally. The problem is as it always has been to combine an understanding of the depth of the executive power (vis-à-vis the legislature, in a parliamentary system) with its breadth (vis-à-vis the States, in a federation). Considered as a challenge to executive spending, Pape raised only the second dimension of the executive power. But considered as a response to a fiscal emergency, it potentially also raised the first, which may assist to explain why the court failed to clearly distinguish between the two. If this interpretation is correct, the reasons of the majority are woefully inadequate for tackling the question of depth. No doubt this is another aspect of the doctrine that will be further clarified in due course.
CS

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Published on August 1, 2009
Author:          Filed under: Australia, federalism, hp
 

Constitutional Court Censors German Government

It’s been a tough week for the German government. It was handed defeats by the constitutional court (Bundesverfassungsgericht) in two separate cases touching on the government’s authority to withhold information from parliament.
In 2006, the German parliament — on an initiative by opposition parties — constituted a parliamentary commission to investigate allegations that the German government and intelligence services had cooperated with US intelligence services in conducting “renditions” using German airports, and in the kidnapping and interrogation of German nationals in connection with the war on terror. The federal government — citing national security concerns — refused full cooperation with the committee’s investigation, instructing high level officials to limit their testimony, and refusing to hand over documents that had been requested by the committee. The government’s decision was challenged before the Constitutional Court by opposition parties.
The second case involved a similar issue. In 2006, several Green members of parliament had made use of the right of parliamentary deputies to question the federal government to ask whether German intelligence services were collecting information on members of the federal parliament (the question was inspired by a similar incident in Sweden). The federal government refused to answer, arguing that to do so would undermine national security by exposing the strategies and operations of the intelligence services. The members of parliament challenged the government’s position before the Constitutional Court.
In two separate decisions handed down this week, the Constitutional Court largely ruled in favor of the opposition challenges. In each decision (2 BvE 3/07 and 2 BvE 5/06), the court asserted that the separation of powers inherent in the Basic Law requires that a non-specific, blanket assertion of the need to protect national security cannot be used to limit the right of parliamentary inquiry. The Court argued that while the executive has a general right (and duty) to protect national security, which may require secrecy, it had failed to plausibly establish that secrecy was necessary in the current cases, in particular because some of the information could have been provided without exposing the inner workings of the intelligence services.

It is hard to say at this point what impact these decisions will have. On the one hand, the Court has handed an unambiguous victory to opposition parties, and the decisions clearly challenge broad claims of executive privilege. Moreover, the decisions are likely to be greeted with considerable popular support. At the same time, the Court was careful not to demand specific action on the part of the executive, nor did it provide very clear guidelines on the conditions under which the executive can (and cannot) assert executive privilege. As a result, their practical effect may be limited.
-GV

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Published on July 30, 2009
Author:          Filed under: Germany, hp, information