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I·CONnect

Blog of the International Journal of Constitutional Law

Senegal: Court Clears Wade for Third Term



Yesterday, Senegal’s Constitutional Council ruled that President Abdoulaye Wade can run for a third term, and that popular musician Youssou N’Dour could not run. Riots erupted, leaving a policeman dead. As we described earlier, Wade is relying on a somewhat tortured, though not insane, reading of the constitutional scheme as amended since he acscended to power in 2000. Wade follows the pattern of the long-time opposition leader who calls for democracy, then finds giving up power undesirable.

Wade was originally elected to a seven year term, renewable once, under the prior constitution in 2000. After taking office a new constitutions was adopted, reducing the presidential term to five years, after he completed his first. In 2007 he was re-elected and secured an extension of the term to seven years for future elections. He then argued that his second term was in fact the first one served under the new constitution. There is a genuine legal issue as to whether terms in prior constitutions ought to be counted in any term limits scheme, but the danger of self-dealing suggest that the answer ought to be yes.

When I was in Dakar last month, I found mixed views about Wade, but there were visible signs of disatisfaction with his regime, as evidenced in the photos above!

–TG

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Published on January 28, 2012
Author:          Filed under: hp, Senegal, term limits, Tom Ginsburg
 

A Constitutional State of Emergency in Nigeria

Last Saturday a terrorist attack by the Islamist insurrectionist group Boko Haram killed well over 100 people in the Nigerian city of Kano. This tragic event may have strengthened the domestic position of beleaguered Nigerian president Goodluck Jonathan at a time when sectarian violence, and increasingly visible popular protests against rising gasoline prices, seem to be pushing the West African nation to the brink of chaos.


On its face, the Boko Haram attack would seem to validate a series of controversial moves made by Jonathan over the last few weeks. On January 1st, the president declared a state of emergency over a small region of the Nigerian North, and one week later expanded it to encompass 15 Nigerian States.


When operating under a state of emergency, a Nigerian president is empowered to make laws and to execute them immediately even where the state competencies affected would normally fall under the purview of Nigeria’s highly independent state and regional governments. The power also allows the executive to overstep, with some exceptions, the limitations on power arising from constitutional guarantee of fundamental rights.


In a region with a troubling history of autocrats unnecessarily invoking emergency provisions so as to consolidate power and rule by decree, such declarations can understandably be met with a high degree of suspicion. Section 305 of the 1999 Nigerian Constitution provides for the imposition of a state of emergency in the country, or a part of it, through the official gazette under the following circumstances:


(3) The President shall have power to issue a Proclamation of a state of emergency only when –

(a) the Federation is at war;

(b) the Federation is in imminent danger of invasion or involvement in a state of war;

(c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;

(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation;


Prior to the Kano attack, President Jonathan’s stated motivation for the state of emergency (ie. “crushing” Boko Haram by seizing control of uncoordinated regional security apparatus and border controls while creating a special counter-terrorism unit from scratch) had been impugned by both international observers and domestic critics for being disingenuous. The Nigerian Constitution does not allow for emergency executive power to suppress peaceful protests, but does do so in situations involving armed rebellion or an existential threat to the state. As such, the move was initially criticized as a red herring, a cynical power grab aimed at empowering Jonathan’s administration to subvert state powers and repress the Nigerian citizenry with impunity by deliberately exaggerating the threat posed by Boko Haram.


In light of events over the weekend however, criticism has died down considerably. Ironically, by reinforcing the perception that the Islamists do represent an immediate and existential threat to Nigeria’s existence, the attack may have thrown President Jonathan a much-needed lifeline. That being said, Boko Haram has previously stated that they recognize neither the federal constitution nor the authority of President Jonathan.

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Published on January 26, 2012
Author:          Filed under: Daniel Lansberg-Rodriguez, Nigeria
 

Scholarly Announcements for Comparativists

Below, I’m pleased to share three announcements from two groups with which I’m involved. The first is a new Call for Papers from the AALS Section on Law and South Asian Studies. It is open to all comparativists irrespective of seniority.

The next two are targeted to younger comparativists, defined as scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2012. These two announcements are both issued by Younger Comparativists Committee in the American Society of Comparative Law and involve the following: (1) a Call for Papers; and (2) an invitation to serve on one of the Younger Comparativists Committee’s three advisory groups.

More details follow.

I. CALL FOR PAPERS

Topic: Legal Education & Legal Reform in South Asia
For: AALS Section on Law and South Asian Studies, Panel at Annual Meeting, 2013, New Orleans

The Section on Law and South Asian Studies of the AALS seeks outstanding proposals relating to the topic of of legal education as a vehicle for legal reform in South Asia. The selected proposals will be the basis for presentations at the AALS Annual Meeting to be held in New Orleans in early January, 2013. Topics relating to any country within South Asia, including Afghanistan,  Bangladesh, Bhutan,  Burma, India, Nepal, Pakistan, Sri Lanka,  will be appropriate. Possible topics include: curricular reform; regional and comparative legal education reforms; the training of lawyers and judges as actors for social and legal change; the conservative pull of legal education; evolution of clinical legal education; the role of externships in institutional reform; the role of US law school programs in legal change. Please send a 500-1000 word proposal to the chair of the Section, Shubha Ghosh, at ghosh7@wisc.edu ghosh7@wisc.edu by February 24, 2012.

II. CALL FOR PAPERS

The Younger Comparativists Committee of the American Society of Comparative Law is pleased to invite submissions for its inaugural conference to be held on April 20, 2012, at George Washington University Law School in Washington, DC. The purpose of the conference is to highlight and develop the scholarship of new and younger comparativists, hence the title of the conference: New Perspectives in Comparative Law.

Submissions will be accepted on any subject of public or private comparative law from scholars who have been engaged as law teachers, lecturers, fellows, or another academic capacity for no more than ten years as of June 30, 2012.

Members of the Younger Comparativists Committee’s Scholarship Advisory Group will review submissions with the authors’ identities concealed. The Scholarship Advisory Group will select a best paper which will be showcased during a plenary panel with comments from senior scholars in the area. Other papers will be assigned to separate panels according to subject.

The American Society of Comparative Law has generously agreed to provide a limited number of modest stipends toward travel expenses for participants with a demonstrable need of financial assistance.

To submit an entry, scholars should submit completed papers no longer than 30,000 words (including footnotes) no later than February 15, 2012, to Judy Yi at the following address: judy.yi@bc.edu. Papers should reflect original research that will not yet have been published by the time of the conference. The paper should be accompanied by a separate cover sheet indicating the author’s name, title of the paper, institutional affiliation, and contact information. The paper itself must not contain any references that identify the author or the author’s institutional affiliation.

The final conference program will be circulated no later than March 26, 2012.

The Younger Comparativists Committee is delighted to thank George Washington University Law School for serving as our host for the conference, in particular Claudia Haupt for coordinating the event, and Markus Wagner of the University of Miami School of Law for chairing the Program Committee.

Please direct all inquiries to Richard Albert, Chair of the Younger Comparativists Committee, by email at richard.albert [at] bc.edu or telephone at 617.552.3930.

III. INVITATION TO SERVE ON ADVISORY GROUPS

Dear Fellow Younger Comparativists,

As you may know, the Younger Comparativists Committee (“YCC”) conducts its work with the help of three advisory groups. Each advisory group is composed of younger comparativists who volunteer their time to help advance the academic and professional interests of their fellow younger comparativists.

Advisory groups are new to the YCC. We created them last year in March 2011. They have been immensely successful, thanks to the enthusiasm, industry and innovation of its members.

The term of each of the inaugural advisory groups is coming to a close. I am therefore writing to invite you to participate in the work of the YCC by expressing your interest in joining one of the advisory groups.

Below, I have pasted the membership and mission statements for each of the advisory groups. These mission statements were developed by the members of each of the advisory groups in consultation with the YCC. They will give you an overview of each advisory group’s responsibilities.

I invite you to express your interest to me by February 1, 2012.

In the meantime, my best wishes for this new year.

Sincerely,

Richard
Chair, Younger Comparativists Committee

______

I. Scholarship Advisory Group

The Scholarship Advisory Group consists of Wulf Kaal (St. Thomas University–Minneapolis) (chair), Fiona De Londras (University College Dublin), David Landau (Florida State University), Salil Mehra (Temple University) and Adam Shinar (Harvard University).

The mission of the Scholarship Advisory Group of the Younger Comparativists Committee (“YCC”) is to identify and support scholarship of younger comparative law scholars in the American Society of Comparative Law (the “Society”) and worldwide, and to facilitate the scholarly exchange of ideas and research in all areas of comparative law. To this end, the Scholarship Advisory Group will:

1. Serve as the body responsible for advising the YCC as to which submissions should fill the YCC’s panel at the Annual Meeting of the Society;
2. Compile, archive and circulate by email once per quarter to the YCC distribution list a collection of new comparative law scholarship by scholars whose scholarly experience does not exceed ten years as of July of the current calendar year.

II. Membership Advisory Group

The Membership Advisory Group consists of Claudia Haupt (George Washington University) (chair), Joel Colon-Rios (Victoria University), Rajeev Kadambi (Jindal Global Law School), Aoife Noalan (Durham University), Anna Su (Harvard University) and Po-Jen Yap (University of Hong Kong).

The mission of the Membership Advisory Group of the Younger Comparativists Committee (“YCC”) is to identify younger comparative law scholars in the American Society of Comparative Law (the “Society”) and worldwide, and to facilitate the scholarly exchange of ideas and research in all areas of comparative law. To this end, the Membership Advisory Group will:

1. Compile and maintain a database of comparative law scholars worldwide whose scholarly experience does not exceed ten years as of July of the current calendar year;
2. Communicate information on new scholarship in the area of comparative law in coordination with the Scholarship Advisory Group;
3. Invite the participation of current members, prospective members and other interested younger scholars in the Society’s activities in coordination with the Linkages & Engagement Advisory Group.

III. Linkages & Engagement Advisory Group

The Linkages & Engagement Advisory Group consists of Jill Goldenziel (Harvard University) (chair), Trey Childress (Pepperdine University), Rosalind Dixon (University of Chicago), Pascale Fournier (University of Ottawa) and Madhav Khosla (Harvard University).

The mission of the Linkages and Engagement Advisory Group of the Younger Comparativists Committee (“YCC”) is to identify and develop opportunities for younger comparative law scholars in the American Society of Comparative Law (the “Society”) to engage in scholarly exchanges both within the Society and in cooperation with other organizations that involve younger scholars engaged in the study of comparative law.

To this end, the Linkages and Engagement Advisory Group will:

1. Establish liaisons to other organizations involved in the study of comparative law to identify opportunities for younger comparativists;
2. Communicate those opportunities to younger comparativists in the Society in coordination with the Membership Advisory Group;
3. Invite the participation of current members, prospective members and other interested younger scholars in the Society’s activities in coordination with the Membership and Scholarship Advisory Groups.

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Published on January 25, 2012
Author:          Filed under: Announcements; Call for Papers, hp, Richard Albert
 

“Guiding Cases” in China

The Supreme People’s Court of the People’s Republic of China has begun the practice of announcing “guiding cases.” These are cases that, as explained here, “provide guidance to people’s courts in hearing similar cases and handing down judgments, and reference shall be made by judges in hearing similar cases and cited as the basis for reasoning in judgments.”

This appears to be quite a significant development. Professor Wu Shuchen of Shandong University describes it this way: “The effect of the Guiding Cases system is as follows: first, it significantly limits the discretionary power of judges and effectively avoids the defect of different verdicts for similar cases; second, it significantly reduces the uncertainty and unpredictability of the law.”

Stanford Law School has recently created the China Guiding Cases Project to catalogue the guiding cases, to provide commentary and legal analysis on those cases, and generally to follow these and other fascinating developments in the Chinese legal system.

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Published on January 19, 2012
Author:          Filed under: China, hp, Richard Albert
 

South Sudan constitutional process beginning

The world’s newest country, South Sudan, has been wracked by serious inter-ethnic conflict in recent weeks, in which cattle raids have escalated to large-scale pogroms between Nuer and Murle ethnic groups. The situation seems to be deteriorating rapidly, and presents serious challenges to the Government as well as international peacekeepers, who have been unable to stop the violence.

While it will have little immediate impact, one key step in building the state is taking place in Juba, where the process of making the Permanent Constitution is just beginning. Last week, the President called a meeting to consult on appointments to a new Constitutional Review Commission, which will have one year to review the current Transitional Constitution and to propose changes. While the original proposal seems to have been for eleven members, opposition groups pushed for the expansion of the Commission to 45 total members. This is sure to produce greater representation, but could also generate an unwieldy body unable to engage in meaningful deliberation. Much political skill will be required to keep the Commission on track to accomplish its heavy workload.

The process is governed by Sections 202 and 203 of the Transitional Constitution, which does not provide the number of members on the Commission. Besides constitutional reform, the Constitutional Review Commission is to conduct a civic education program, and will have to consult widely to solicit input; for this task, more members might be helpful.

After the draft is prepared by the Constitutional Review Commission, a National Constitutional Conference will be established to deliberate on the draft and gather public input. The whole process must be completed by October 2014 at very latest.

–TG

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Published on January 14, 2012
Author:          Filed under: hp, South Sudan, Tom Ginsburg
 

Progress in Fiji?

The recent developments in Myanmar remind us that even cosntitutions adopted with low expectations can mark significant political change. In this light, it is worth watching forthcoming developments in Fiji, where military strongman Voreqe Bainimarama yesterday lifted the three-year-old state of emergency, and announced the need to move toward a new constitution. The new draft, he says, will be based on the principle of one-man, one-vote, and will not use ethnicity as a formal basis for politics. The state of emergency was declared after the Court of Appeals found that Bainimarama’s 2006 coup was illegal.

Bainimarama is sticking with a timetable he announced back in 2009, when he said that the constitution-making process would begin in September 2012. Bainimarama appears commited not to reinstate the abrogated 1997 constitution. That document, which led to the election of Fiji’s first-ever ethnic Indian government, was blamed for perversely reinforcing the ethnic bases of politics, despite its intentions otherwise. It remains to be seen whether the new drafting process will use the 1997 text as an informal basis. This approach might save some drafting energy while allowing for the mitigation of the electoral institutions that exacerbated ethnic conflict.

Back in 2009, Bainimarama also said that the process would involve wide consultation among stakeholders. It remains to be seen whether he will deliver on this promise.

–TG

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Published on January 8, 2012
Author:          Filed under: Fiji, hp, Tom Ginsburg
 

Hungary’s New Constitution

The new constitution of Hungary—called the Fundamental Law of Hungary—became effective a couple of days ago on January 1, 2012. The day after its coming into force, thousands of Hungarians gathered in Budapest to protest the nation’s new constitution. Analyses of the day’s events are available herehere and here. Princeton’s Kim Lane Scheppele is quoted offering some noteworthy observations near the end this article here.

The Hungarian Parliament adopted the new constitution on April 25, 2011. The full text is available here.
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Published on January 4, 2012
Author:          Filed under: hp, Hungary, new constitution, Richard Albert
 

Hungary constitution takes effect

The new Hungarian Constitution became law on New Year’s Day, 2012. Is it a harbinger of a new anti-European trend in the hear of Europe, or simply an anomalous hiccup? We are not living in the “end of constitutional history.” An excellent analysis by Kim Lane Scheppele is here.

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Published on January 3, 2012
Author:          Filed under: Uncategorized
 

Japan Equality Case

The Tokyo District Court just handed down a decision finding that a national university’s (Tokyo Institute of Technology or TIT) denial of admission to a foreign student was unconstitutional. The case concerned an Iranian student, a refugee in Japan, who applied to the Department of Nuclear Engineering at the TIT. TIT denied his application on national security grounds, citing the Iranian government’s effort to acquire nuclear weapons capacity, and referring to a UN resolution asking member state to keep citizens of Iran from access to education regarding nuclear technology. The Iranian student filed a suit for damages against TIT. On Dec. 19, 2011, a panel of the Tokyo District Court, presided over by Judge Kobayashi, held that TIT discriminated the student on basis of his nationality, violating Article 14 of the Japanese Constitution (the equality clause). The Court found that TIT failed to consider the student’s refugee status, and that his application had nothing to do with the Iranian government’s nuclear program. But the court did not grant injunctive relief to give the student admission, saying that the conclusion will be left to TIT after it reopens the reviewing process. It also denied the student’s claim for damages, saying TIT’s action did not meet the standard of negligence, which is required under the relevant government compensation statutes. Still, the decision represents a very rare instance of Japan’s lower courts applying Article 14 to foreigners in such a context.

–Tokujin Matsudaira

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Published on December 20, 2011
Author:          Filed under: equality rights, hp, Tokujin Matsudaira
 

Egypt’s landmines

Nathan Brown has a nice analysis of the Landmines in Egypt’s Constitutional Roadmap over at Carnegie Endowment website. His basic theme is that the current timetable, by potentially holding presidential elections after the process of drafting the constitution, will allow the military to be able to control the latter process.

I have two questions about the analysis. First is the grand normative one of whether a Turkish model is really so bad for Egypt. Will a military dominated constitutional order be worse for Egyptians than one dominated by a Salafist-controlled parliament? I’m no expert on the country or region but this strikes me as the ultimate question for policy-makers to consider, and one for which sound arguments exist on both sides. Second, a process produced under a civilian president with a new mandate is likely to succumb to the same concerns of self-interest and entrenchment as one produced by a military which knows it must ultimately return to the barracks.

–TG

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Published on December 7, 2011
Author:          Filed under: Egypt, Nathan Brown; hp