Blog of the International Journal of Constitutional Law

Enacting Constitutionalism

For readers who might be interested in a paper on the constitutional enactment of independent judicial institutions, may I suggest a paper just published entitled “Enacting Constitutionalism,” in which my coauthor and I focus on the political composition of the constituent body and its implications for the type of institutions enacted. The paper is available here.

Here is the abstract:

When and why can we expect constitution-making processes to produce an institutional framework that formally serves constitutionalism? We present a simple and general typology of constituent processes that captures their legal/political character and their dynamic nature. We distinguish constitution-making processes controlled by one cohesive and organized political group (unilateral) from processes controlled by at least two different political groups (multilateral). Our central hypothesis is that multilateral constitution-making tend to establish institutional frameworks consistent with constitutionalism. Focusing on independent judicial institutions, we find support for our hypothesis in a sample of 18 Latin American countries from 1945 to 2005.

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Political (and constitutional) Turmoil in Belgium

In the world of constitutional design, few things could be more ironic than a country that at the same time is home to the unofficial capital of the new Europe just as its own political and constitutional future is increasingly under siege. The New Flemish Alliance Party (NVA), which advocates a peaceful breakup of Belgium and the establishment of an independent Flanders, became the largest political party in Belgium, having received about 17.5% of the popular vote in Sunday’s general elections, translating into 27 seats in the 150-seat parliament. The largely francophone Socialist Party won 26 seats. The Christian Democratic Flemish Party, once an ally of NVA, received another 11% of the popular vote (17 seats). Much like in neighboring Netherlands where elections were held last week, a compromise coalition government appears inevitable. And the fact that Belgium is about to hold the EU presidency from July to December will surely calm things down a bit. However, this has still been the strongest showing of a secessionist party in the history of Belgian federal politics. As some readers will recall, in 2004 Belgium’s Court of Cassation approved a lower court ban on the Flemish extreme right-wing separatist Vlaams Blok Party. The party resurfaced as Vlaams Belang (Flemish Interest) a few months later. The more moderate NVA appears to have managed to attract some of VB’s supporters, although the VB still garnered 8% of the votes (12 seats).

Following a 1993 constitutional amendment, the constitution establishes a federal framework, with Flemish and Walloon regions and subunits alongside Brussels as a federal district. As in other economically uneven federations (e.g., Bolivia, Nigeria) fiscal federalism is a major issue. A series of constitutional amendments granted both regions legislative autonomy in areas such as education, agriculture, energy, and environmental protection. However, in the core fiscal issues of social security, labor, and key aspects of taxation regional autonomy is relatively limited. Flanders wants more regional autonomy in these areas as it is better-off economically than the French-speaking Walloon region and has been sponsoring hefty cash transfers to the Walloon region, where uneployment rate is notably higher and average household income is lower. A push towards more devolution of power to sub-national units alongside cuts to equalization transfers is expected.

And then there is the language issue. Much like the Quebec versus anglophone Canada situation, language wars, constitutional and otherwise, have dominated Belgian politics for quite some time now. The constitution designates three communities (Dutch speaking, French speaking, and German speaking), and four language regions (Dutch, French, German, and bilingual Brussels). The Constitutional Court (created in 1993 as the Court of Arbitration and elevated to a Constitutional Court in 2007; comprising of six judges of Flemish background, and six of Walloon background, with two chief justices) has repeatedly dealt with the language issue. A court ruling in 2003 held that it would be unconstitutional for Flanders to require schools in French-speaking enclaves to teach in Flemish only. Flemish parties countered by arguing that Walloon residents of Flemish cities do not make any effort to acquire Flemish linguistic skills. Most recently, the Court held unconstitutional a complex voting scheme that would allow French speakers living in Flemish towns jut outside of Brussels to vote for French language parties in the Brussels region, even though they live in a Flemish area. As the political system remains deadlocked on the issue of language, all signs (in either language . . .) indicate that the Constitutional Court will soon find itself in a boiling political cauldron yet again.


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Published on June 14, 2010
Author:          Filed under: Belgium, Language rights, Ran Hirschl

Xenophobia in South Africa and the U.S.

South Africa has had a problem with outbreaks of violence against foreigners in the last few years. This is especially distressing given the nation’s legacy of oppressing groups based on their backgrounds. These developments also pose real challenges to the nation’s hopeful and progressive constitution. Unfortunately, there are rumors that some in the governing party may be playing a role here, and also that the violence will escalate after the World Cup. Let’s hope that escalation doesn’t happen.

Yet none of the above justifies a May 25 U.S. State Department Travel Alert for South Africa directed at U.S. citizens. Essentially the Alert warns that the World Cup could be risky to attend. This warning happens at a time when World Cup anticipated attendance is down and hotel bookings are weak. Yet the Alert also says the following in part: “the U.S. Government has no information on any specific, credible threat of attack that any individual or group is planning to coincide with the tournament.” So the question is why issue an Alert that could cause further economic problems for the tournament based on no evidence. This only adds to the perception that the U.S. is sometimes afraid of foreigners. And of course, this is nothing compared to the Arizona immigration law.

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

Abortion foes battle Kenya draft

If the Kenyan Constitution fails in a referendum a little over a month from now, it may be largely the result of foreign groups lobbying against it. Three U.S. Congressmen are now calling for an investigation into US support for the Kenyan constitution, arguing that funds spent on civic education for the proposed draft violate the Siljander Amendment, which is a provision of the U.S. Appropriations Act stipulating that no USAID and State Department funds “may be used to lobby for or against abortion.” (Surely this is a broad reading of the word lobbying, and apparently the author of this controversial amendment is himself under indictment for lobbying violations.) American churches have also funded challenges to the carefully negotiated provisions on the Islamic courts in the Kenyan draft.

I for one think it that, of all the things the US might export to Africa, our culture wars should not be at the top of the list. Whatever ones views of the particular compromises undertaken in Kenya’s drafting process, the choices made are hardly insane. So we might take the approach of viewing the constitution as a bundle, to be evaluated in its entirety, and to be selected or rejected by the sovereign people of Kenya on their own terms. At the same time, in a global era, no constitution is autochthonous, and it is hard to draw a clear line between good and bad external intervention. Should there be a limit to external efforts to lobby for or against particular constitutional documents, or provisions therein?


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Published on June 4, 2010
Author:          Filed under: abortion, hp, Kenya, Tom Ginsburg

German President Resigns

In a historically unprecedented step, German President Horst Köhler resigned today. The apparent cause for his resignation is criticism over statements he made in connection with German military involvement in Afghanistan. Pursuant to Article 57 of the Basic Law, the president of the state chamber (Bundesrat) will take over his duties.

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

Dominic Nardi on Pakistan’s Judiciary: Suo Moto Tango

The Indian Supreme Court has become prominent (or notorious) amongst comparative constitutional law scholars for its judicial activism. However, if anything, the Pakistani judiciary has gone even further in finding creative ways to support public interest litigation (PIL). Under Article 184(3) of the 1973 Constitution, the Supreme Court has original jurisdiction over petitions to enforce fundamental rights. In order to encourage PIL, the Court waives locus standi requirements and filing fees. It has even initiated PIL cases through its suo moto jurisdiction.

Environmental PIL in Pakistan began rather modestly, with most claims limited to a particular case or controversy. However, in 1994, it received a boost when Dr. Parvez Hassan, a leading environmental lawyer, helped residents file a complaint against a proposed power grid station. In Shehla Zia v. WAPDA, the Supreme Court read a right to a clean and healthy environment into Article 9 of the Constitution, which protects the right to life.

After Shehla Zia, the Judiciary became a central actor in environmental policymaking. Courts often engage in a “rolling review” over implementation of Pakistan’s Environmental Protection Act. They also utilize commissions composed of government officials, businessmen, and environmentalists to resolve scientific questions and formulate policy. For example, in 2003, in Syed Ali Mansoor Shah v. Government of Punjab, the Lahore High Court established the Lahore Clean Air Commission in response to a petition against vehicular emissions. LCAC recommended introducing EURO II CNG buses; phasing out two-stroke rickshaws; and setting ambient air quality and vehicle emission standards within three years.

Perhaps even more astounding, the Supreme Court has issued orders suo moto to remedy environmental problems that come to its attention. In the mid-1990s, Justice Saleem Akhtar convinced the Court to issue an injunction against the dumping of chemical waste off a coastline in Balochistan – after reading about the problem in a local newspaper. The justices also demanded information on anybody who owned property near the coastline and inserted conditions into their leases against dumping waste.

In one recent case, Lahore Conservation Society v. Government of Punjab, the Chief Justice Iftikhar Muhammad Chaudhry (better known for his opposition to General Musharraf) ordered a halt to a road-expansion project after reading letters to the editor complaining about the logging. The Court first requested more information from the Chief Secretary of Punjab. Subsequently, several environmental lawyers filed suit. This past March, the Chief Justice ordered that no trees could be cut and asked the government to present alternatives.

While the Court’s concern for the environment is admirable, critics accuse it of exercising its suo moto jurisdiction arbitrarily. The power to exercise suo moto lies solely with the chief justice of each court. Justices seem particularly keen on causes that do not receive much attention from the government but are popular with the public, such as urban waste and crime. However, their information often comes from anecdotal evidence in the media, not through a systematic review. Some environmental lawyers have called for guidelines to clarify when courts can exercise suo moto jurisdiction.

Suo moto jurisdiction also raises larger questions about the sustainability of judicialized policymaking. Courts lack the technical capacity to formulate long-term environmental policy. Furthermore, by assuming such a pronounced role, judges might inadvertently atrophy the capacity of executive agencies. For example, when suo moto cases arise within their jurisdiction, some provincial EPAs become reluctant to take any action for fear that they might invoke contempt of court proceedings.

Given its recent history, Pakistan’s judiciary is in a fairly unique political position. However, it would be interesting to see how many other courts around the world have exercised suo moto jurisdiction on a regular basis to address public grievances. I would be certainly interested in hearing about other cases of suo moto activism in the comments section below.

–Dominic Nardi

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Published on May 30, 2010
Author:          Filed under: Dominic Nardi, hp, Pakistan

Greece, the Euro, and the FCC

The German Federal Constitutional Court (FCC) has denied an application for a temporary injunction to stop Germany’s contribution to the aid package for Greece (German decision here, English press release here). The challenged law authorized the federal government to guarantee loans up to 22.4 billion euros. Another constitutional challenge is in the works, as reported in the German press, against a law allowing Germany to contribute up to 148 billion euros to the euro aid package.

As observed here, German EU- and euro-skeptics had rather high hopes after the Treaty of Lisbon decision that the FCC might step in. Although the FCC emphasized its final say on the limits of European integration as posed by the Basic Law in that decision, it seems somewhat unlikely that the court will now play a major role with respect to the latest financial aid decisions of the federal government.

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Published on May 26, 2010
Author:          Filed under: Claudia Haupt, European Union, Germany, Greece, hp

2010 Annual Meeting of the Law & Society Association

The Comparative Constitutions Blog will be well represented this week at the Law and Society Association‘s Annual Meeting, held in Chicago’s Renaissance Hotel.

Here is a quick reference guide for those attending what promises to be fascinating conference:

Tom Ginsburg

Session: Constitutional Law and Judicial Review in Asia
Friday, May 28, 10:15am-12:00pm

Author: How Do International Human Rights Treaties Affect the Design of National Constitutions?
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Session: How Law Matters (or Fails to Matter) in Unlikely Places
Friday, May 28, 4:30pm-6:15pm

Roundtable Discussion: Courts and the Rule of Law in Authoritarian Societies
Saturday, May 29, 4:30pm-6:15pm

Ran Hirschl

Roundtable Discussion: Emergency: Political Liberalism and the Legal Complex in the Post-Colony
Thursday, May 27, 2:30pm-4:15pm

Mark Kende

Roundtable Discussion: Courts and the Rule of Law in Authoritarian Societies
Saturday, May 29, 4:30pm-6:15pm

David Law

Author: The Global Convergence of Constitutional Rights: An Empirical Analysis
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Zachary Elkins

Author: How Do International Human Rights Treaties Affect the Design of National Constitutions?
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Rosalind Dixon

Author: Constitutional Cascades
Session: Constitutional Convergence?
Friday, May 28, 8:15am-10:00am

Javier Couso

Roundtable Discussion: The Production and Dissemination of Legal Knowledge
Saturday, May 29, 8:15am-10:00am

Author: The Role of Constitutional Theory in the Transformation of Chile’s Constitutional Court
Session: Ideas in Action: Cultural-Ideational Forces and Court Reforms in Spain and Latin America
Sunday, May 30, 8:15am-10:00am

Claudia Haupt

Author: Animal Advocacy as Political Speech: A Comparative Perspective
Session: Animal Law: Theory and Context
Friday, May 28, 8:15am-10:00am

Richard Albert

Author: Constitutional Handcuffs
Session: New Perspectives on Comparative Constitutionalism
Saturday, May 29, 2:30pm-4:15pm

Session: Constitutional Law: A Comparative View
Sun, May 30, 10:15am-12:00pm

For location and other information, please consult the searchable database available here.

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Published on May 26, 2010
Author:          Filed under: hp, Law and Society Association;, Richard Albert


The New Republic has just posted a nice essay by Daniel Lansberg-Rodriguez about what he calls wiki-constitutionalism in Latin America: the tendency of constitutions in the region to be changed as easily as wikipedia pages. Lansberg-Rodriguez points out the costs of rewriting, and argues persuasively that institutional stability will require overcoming wiki-constitutionalism.

He also ties frequent change to longer constitutions; however, in our recent book on global constitutional endurance we found no such connection, at least when one looks at all countries and controls for other factors. Instead there seems to be a secular increase in the length of constitutions, independent of their endurance. This seems to be driven by an increase in the number and type of rights, as well as new and more complex institutional structures.

I also like this comment by ironyroad on the TNR blog: “The [U.S.] Constitution is an Enlightenment intellectual exercise written as a British Romantic poem. As if John Keats had thought long and hard about representation and the separation of powers. The Latin American problem is that their constitutions are magical realist novels written as legal documents.”


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Published on May 25, 2010
Author:          Filed under: hp, Tom Ginsburg, venezuela

Kagan Confirmation Controversy?

The U.S. Supreme Court confirmation process has become increasingly polarized. While the system in other countries is not free of problems, things in the U.S. reached a new low lately when several prominent news commentators essentially called on Court nominee Elena Kagan to address whether she is gay or not (Maureen Dowd in the New York Times, and Andrew Sullivan who has a popular blog). Fortunately Dahlia Lithwick of Slate responded, and pointed out that such information is largely irrelevant to the key confirmation issues, and may simply reflect the media’s desperate need to drum up something controversial. I have been struck by two ironies regarding the Dowd-Sullivan positions. First, the U.S. Supreme Court has protected gay rights under a right to privacy rationale. Yet Dowd and Sullivan do not respect Kagan’s privacy. Second, I don’t believe either Dowd or Sullivan were exactly supporters of trying to impeach Bill Clinton when revelations of his activities with Monica Lewinsky were disclosed. So that adds to the question of why this Kagan information is relevant. Hopefully, the actual Senate confirmation hearings will be more substantive, and include serious conversations about constitutionalism (and even the use of foreign law) without some of the Kabuki ritual of the Justice Sotomayor hearings.

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Published on May 20, 2010
Author:          Filed under: hp, Mark Kende