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I·CONnect

Blog of the International Journal of Constitutional Law

Foreign Affairs article on Arab Spring Constitutionalism


Anthony Billingsley
has written an interesting article on constitution-making in the wake of the Arab Spring for Foreign Affairs.

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Published on December 1, 2011
Author:          Filed under: Uncategorized
 

Egypt update from International IDEA

As Egypt goes to the polls to begin its long process of electing a parliament, I recommend taking a look at an analysis produced by International IDEA of the “Fundamental Principles” document released earlier this month. The document has been widely criticized for trying to cement a role for the military in future politics.

His summary: “The draft version of the ‘Fundamental Principles’ that was circulated on 1 November 2011 is flawed in a large number of respects. Although its preamble seeks to portray the document as being non-binding and subject to popular sovereignty, its drafters clearly seek to impose all its provisions on the future constituent assembly’s work. Despite the lack of consensus between Egypt’s political parties on the issue, the November draft seeks to impose a particular type of relationship between religion and the state without the opportunity for a transparent and inclusive national debate. The November draft also seeks to grant the armed forces powers that are not in conformity with Egyptian constitutional tradition, with comparative constitutional practice or with general democratic principles. This applies not only to issues such as the military’s budget, but also to the amount of control that the Supreme Council for the Armed Forces can exercise over the drafting of the constitution by the coming constituent assembly.

The limitations that the November draft seeks to impose on that process, if implemented, will likely impair its democratic legitimacy and the future constitution’s ability to establish an improved system of governance. Finally, the November draft’s provisions on fundamental rights are lacking in detail and leave the door open to abuse by the executive branch of government. If the Egyptian government is to continue with its initiative to draft and issue a text on ‘Fundamental Principles’, these issues, amongst many others, must be resolved.”

–TG

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Published on November 28, 2011
Author:          Filed under: Egypt, hp, Zaid Al-Ali
 

Japan’s Supreme Court finds lay participation in criminal trials constitutional


On November 16, 2011 Japan’s Supreme Court ruled that the country’s new “saiban’in” system of citizen participation in serious criminal trials was constitutional. Issued unanimously by all fifteen of the court’s judges sitting en banc as a Grand Bench, this ruling effectively eliminates any constitutional doubts about the system which may have lingered after it commenced operations in May of 2009.

The saiban’in system, often called the “lay judge” system in English, adds six randomly-chosen lay judges to the panel of three professional judges which Japanese courts have traditionally used for trying serious criminal offenses (the law also allows for a court comprised of one professional and four lay judges for cases when there are no significant factual issues). The lay judges sit with the professional judges during the trial and have the opportunity to question witnesses. After the trial is over the lay judges deliberate with the professional judges to reach a verdict and decide upon sentencing in the event of a conviction.

The role of the lay judges is limited to helping evaluate the facts and decide upon punishment – questions of law and legal interpretation are left to the three professional judges (since all interactions between the professional and lay judges are conducted in secret, so this aspect of the system’s function remains murky). Verdicts are reached through a majority which must include at least one professional judge.

The appellant in the case was a Philippine woman who was sentenced by the new system to a hefty prison sentence for drug smuggling. In her appeal a number of claims were made including that the lay judge system violated the constitution, including the Article 32 right to access to the courts, the Article 37 right to a trial by an impartial tribunal and the due process requirements of Article 31. These claims are tied to claims under Chapter VI of the constitution (the section dealing with the judicial branch) including Article 76, which requires judges to be independent and prohibits special courts, and Article 80 which requires judges of inferior courts to be appointed by the cabinet for a period of ten years. Distilled to its essentials, the appellant’s principal argument appears to have been that since lay judges do not meet the criteria mandated by the constitution for judges exercising the judicial power yet are in a position to influence those professional judges who do, the procedural requirements imposed by the constitution on criminal trials have not been met.

The Supreme Court rejected these arguments, referring to the widespread use of civic participation schemes in the criminal justice systems of other countries as well as the principals of popular sovereignty underlying the Japanese constitution. Drawing an interesting distinction between the pre-war Meiji constitution which gave Japanese people the right to a trial by a judge, and the current constitution which speaks in terms of trials by a court, the grand bench essentially declared that a system of civic participation in which professional judges played a leading role would not violate the constitution.

That the Supreme Court would find the lay judge system to be constitutional was utterly predictable, one suspects even to counsel for the appellant. The Supreme Court as a bureaucracy having spent several years engaged in an extensive PR campaign promoting the new system prior to its commencement, it was simply impossible that the Supreme Court as a court would decide otherwise. For this reason, perhaps, the judgment appears a bit circular in places – the system was designed to be constitutional, therefore it is constitutional.

Since the court’s conclusion in this case was never in doubt, the real significance of this decision may lie elsewhere; in considering whether Japan’s Supreme Court is as conservative as it is often described. Since the court has often used restrictive rules on standing and resolutions of cases on narrow grounds to block rights-based claims or otherwise avoid politically controversial rulings in the past, to characterize it as politically conservative is probably not incorrect. However the ruling in the lay judge case suggests that the court is not judicially conservative in situations where its own interests may be served by an expansive ruling.

This observation is based on the fact that, in addition to considering and rejecting the appellant’s arguments relating to due process and court composition as described above, the Supreme Court also went so far as to deal with one of her other claims: that service as a lay judge constituted a form of involuntary servitude prohibited by Article 18.

Noting the various features of the system intended to both prevent it from being too burdensome on citizens and providing suitable flexibility to allow them to be excused from service, the court declared that service as a lay judge did not constitute servitude. Yet, it would seem that this argument could just as easily have been rejected on the grounds that the appellant, not herself having been required to act as a lay judge, lacked the standing to make the Article 18 challenge. That the Supreme Court nonetheless took the opportunity to address the merits of the argument and thereby forestall the possibility of future claims by lay judge candidates objecting to service may be an interesting example of an effort in judicial efficiency, but can probably not be characterized as a “conservative” exercise of judicial power.

–Colin P.A. Jones, Doshisha University Law School

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Published on November 21, 2011
Author:          Filed under: Colin Jones, hp, Japan, jury system
 

Another chapter in Israel’s constitutional wars

It has been a while since we reported here about Israel’s ongoing constitutional (and culture) wars. The right wing government, and in particular members of the governing coalition who represent religious parties, Jewish settlers and nationalist parts of the Russian immigrant community, have long viewed the Supreme Court as a bastion of liberal secularism and leftism. (In relative terms this may be true, although in absolute terms, to describe the Israeli Supreme Court as a leftist institution is quite a stretch). One of the perennial bones of contention is the Court’s composition, which critics argue is not representative of popular will, the spectrum of political opinions, or of the country’s changing demographics.

To advance their agenda of taming the Court, the right wing parties initiated several new bills, two of which passed initial readings in the Knesset. The first bill, dubbed the “Grunis bill”, removes a rule that a Supreme Court justice cannot be appointed Supreme Court president unless he or she has at least three years of service remaining before the mandatory retirement age of 70. This may seem like a technical correction, but it would pave the way to the presidency of the generally conservative and deferential Justice Asher Grunis, who will be a few weeks short of the three-year rule when the current president, Dorit Beinisch retires in February 2012.

The second bill, dubbed the “Sohlberg bill”, would change the way the Israel Bar Association’s two representatives on the Judicial Appointments Committee are selected. Currently there are 3 vacancies on the Court, two due to retirements and one due to an ongoing police investigation of Justice Yoram Danziger’s alleged ties to a corruption case which led to his recusal. Among the names mentioned for the vacant seats is that of Noam Sohlberg, a District Court judge who lives in a Jewish settlement in the Occupied Territories and whose appointment to the Court would be the first hard core right wing appointment in recent memory. Supreme Court judges are selected by a 9-member committee, which is comprised of three Supreme Court justices, the Minister of Justice, another minister, two Knesset members, and two representatives of the Israel Bar Association. The two bar association representatives have traditionally been nominated by whomever wins the bar council elections, currently a supporter of Dorit Beinisch and an opponent of Minister of Justice Ya’akov Ne’eman and of Sohlberg’s appointment. The “Sohlberg bill” would require a split between the two bar representatives, so that one is the bar chairman and the other is a member of the bar’s internal opposition (translation: a supporter of Minister of Justice Ya’akov Ne’eman, and by extension of the Sohlberg appointment).

A third proposal that has been promoted by right-wing critics of the Court’s is to hold a public hearing and approval in the Knesset for any new suggested appointees, a proposal that would essentially override the current appointment procedure. To hold his public face as a proponent of judicial independence, prime-minister Netanyahu appears to oppose this proposal.

A few weeks ago, I reported here on the two new Conservative appointments to the Supreme Court of Canada. Richard Albert reported here about the effective Conservative consolidation of core decision-making junctures in Canada. A similar process has been taking place in Israel and perhaps in South Africa. Taken together, these examples may suggest that differences between constitutional politics in parliamentary democracies and in “soft” authoritarian settings are largely differences of style, not of a kind.

RH

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Published on November 15, 2011
Author:          Filed under: hp, Israel, Ran Hirschl
 

Equatorial Guinea heads to polls

Citizens of oil-rich Equatorial Guinea went to the polls today to vote in a referendum on a new constitution. Changes include the imposition of term limits on the president (two seven-year terms in office); the creation of a vice-presidency and Senate; the establishment of economic policy and auditing watchdogs; and an ombudsman. Opponents charge that the new constitution is designed to extend the rule of President Teodoro Obiang Nguema, in power since 1979, and pave the way for succession of his son, who is thought to be the most likely nominee for Vice-President. Obiang, it will be recalled, was recently in the news after UNESCO rejected establishment of a prize to be set up in his name. Which leads to the question of whether constitutional window dressing is any more effective than international window dressing? But the succession gambit is something that could only be done through a constitutional change. This is another example of one of the functions of constitutions in authoritarian regimes: trying to ensure orderly succession.

–TG

UPDATE: The results are now coming in: 99.04 percent for and 0.96 percent against. Why can’t dictators at least come up with credible numbers when they are trying to pull the wool over our eyes?

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Published on November 14, 2011
Author:          Filed under: equatorial guinea, hp, Tom Ginsburg
 

Voting underway in Equatorial Guinea

Citizens of oil-rich Equatorial Guinea went to the polls today to vote in a referendum on a new constitution. Changes include the imposition of term limits on the president (two seven-year terms in office); the creation of a vice-presidency and Senate; the establishment of economic policy and auditing watchdogs; and an ombudsman. Opponents charge that the new constitution is designed to extend the rule of President Teodoro Obiang Nguema, in power since 1979, and pave the way for succession of his son, who is thought to be the most likely nominee for Vice-President. Obiang, it will be recalled, was recently in the news after UNESCO rejected establishment of a prize to be set up in his name. Which leads to the question of whether constitutional window dressing is any more effective than international window dressing? But the succession gambit is something that could only be done through a constitutional change. This is another example of one of the functions of constitutions in authoritarian regimes: trying to ensure orderly succession.

–TG

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Published on November 14, 2011
Author:          Filed under: equatorial guinea, hp, Tom Ginsburg
 

Nathan Brown tells American advisors: “Put Away Your Quills” in the Mideast

Nathan Brown of George Washington has an excellent new post at foreignpolicy.com in which he argues that Americans have little to say to constitution-makers in the Arab world. He is surely right.

My own view is that external advisors are best focused on the nitty-gritty issues of drafting, such as making sure the text is consistent, and not particularly well suited to make the big institutional choices. For one thing, we do not have very good social science knowledge of how institutional choices impact subsequent policies, save perhaps for electoral systems; and we have virtually no social science on the interaction of various institutions. Making predictions about what will happen is fraught with difficulty. Constitution-making is still more of an art than a science, and the artists are those that must live under the constitution.

From Nathan’s post:

Later this month, the representatives just elected by Tunisian voters will begin the task of designing a new political order for the country. If all goes well (though it may not) Egyptians and Libyans will follow suit by drafting new constitutions. It is still not inconceivable that other Arab societies will join them in an attempt to reinvent political systems on a more democratic basis. People in these societies are about to engage in an unprecedented process for them — while they have all lived under constitutions before, those documents generally enabled authoritarian government. Now they want to write constitutions that will allow them to live democratically. As Americans, this seems to be a story we know well — a people rises up, throws off oppression, and then deliberates carefully how to write a set of rules for a new republican order fit for a free people. Therefore, we will soon hear lots of well-meaning advice on how Arab societies should write their constitutions and what those constitutions should say.

We saw in Iraq how much U.S. understanding of the constitution drafting process was colored by the U.S. experience. Commentators rushed to speak about a “Philadelphia moment,” recommended favorite clauses from the Bill of Rights, and even argued over judicial review by reference to Marbury vs. Madison or Roe vs. Wade. We should have learned our lesson: much of our advice will be bad and most will be irrelevant.
First, when outsiders give advice, they tend to ask an abstract question: what would be the best constitution for a given society? Not only do they often know little about that society, they forget that constitution writing is a supremely political process. It is not carried out by philosopher kings but pushed through by real political forces playing a gritty political game. Despite what some of us may dimly remember from junior high school U.S. History, our process was no different.

Constitutional kibitzing rarely finds an enthusiastic audience. After the initial election in the various Arab countries, the constitution will be the first test of the new balance of political forces — and it will be the first real opportunity for them to discover not simply how to compete, but how to cooperate. Even more important than the text they produce, the patterns of interaction they establish as they draft will produce lasting patterns for politics. They need to keep their eyes on each other — and that is precisely what they will do….

(Piece continues at foreignpolicy.com here).

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Published on November 9, 2011
Author:          Filed under: hp, Tom Ginsburg
 

The Right to Rebel in Ghana

This is the third in a series of case studies on the Constitutional Right to Rebel: Ghana

————————————————————————————————

The nation of Ghana was formed in 1957 as a sovereign union between the recently independent British protectorates of Gold Coast and Togoland. After an embryonic representative government collapsed in 1966, the country passed from coup to coup for the next ten years.

In early 1978, a constitutional assembly was set up to draft a new constitution for the country, one that would hopefully install a tenable and democratic system of governance. After the draft had been submitted and approved but prior to the constitution’s taking effect supporters of Jerry Rawlings, an imprisoned military officer, overthrew the government and executed just about everyone who had been in a position of power during the previous period. Although Rawlings and his cadre achieved complete control of the government following these executions, the Draft Constitution of 1978 was still allowed it go into effect in an amended form. This constitution included the following “Constitutional Defense” article:

Art. 1(3) All citizens of Ghana shall have the right to resist any person or persons seeking to abolish the constitutional order as established by this Constitution should no other remedy be possible.”


Constitutional Defense refers to forward-looking provisions which are the most common rationale behind a constitutional Right to Rebel and can serve as an extralegal insurance policy for the existing regime. These constitutions seek to pre-empt any move to suspend the extant constitutional order by declaring ex ante that whosoever it was that toppled the existing order did so illegally regardless of the circumstances. This would serve to delegitimize any government that followed and defenders of the ancien regime, would have a constitutional justification for taking arms against the new order and possibly forcing a restoration.


Rawlings allowed an elected president to take office and rule (as a puppet) for two years before again overthrowing the government by coup and suspending the constitution in 1981. Following this second seizure of power Rawlings abandoned the mask and ruled as an open dictatorship under the suspended constitution for over ten years. In 1992, Rawlings was still in complete control of the government but he allowed for a liberalization in which a new constitution was written and implemented.


The 1992 constitution expanded upon the “Right to Rebel” set up in its suspended precursor.


Art. 3(4) All citizens of Ghana shall have the right and duty at all times— (a) to defend this Constitution, and in particular, to resist any person or group of persons seeking to commit any of the acts referred to in clause (3) of this article; and (b) to do all in their power to restore this Constitution after it has been suspended, overthrown, or abrogated as referred to in clause (3) of this article. (5) Any person or group of persons who suppresses or resists the suspension, overthrow or abrogation of this Constitution as referred to in clause (3) of this article, commits no offence. (6) Where a person referred to in clause (5) of this article is punished for any act done under that clause, the punishment shall, on the restoration of this Constitution, be taken to be void from the time it was imposed and he shall, from that time, be taken to be absolved from all liabilities arising out of the punishment. (7) The Supreme Court shall, on application by or on behalf of a person who has suffered any punishment or loss to which clause (6) of this article relates, award him adequate compensation, which shall be charged on the Consolidated Fund, in respect of any suffering or loss incurred as a result of the punishment.”


In 2000, as Rawlings struggled to keep control of a nation that was rapidly slipping away from him, the constitutional Right to Rebel became relevant in a new way.


As reported by Thomas Friedman for the New York Times, during an interview with the head of the Ghana Bar Association following Rawlings removal from office:


“On the day of the elections there was a polling station in Accra where soldiers started destroying voting boxes,” recalled Joseph Ebo Quarshie, president of the Ghana Bar Association. “Immediately, someone called an FM station and it was reported on the air. I was at my bank at the time. A guy walks up to me, a pharmacist I know, and says, `Have you heard what’s going on at this polling station in Accra? What is the Bar Association doing about it?’ So I got in my car and turned on SKY FM. Minutes later I got a call from JOY FM. I told them to call me back in a few minutes. Meanwhile, I got a copy of the Constitution. JOY FM called me back and I read over the radio the article in the Constitution which says that citizens had the right to resist interference in a polling station. JOY FM kept playing my interview over and over. A couple hours later the soldiers were chased off by voters.”

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Published on November 7, 2011
Author:          Filed under: Daniel Lansberg-Rodriguez, Ghana, Right to Rebel, Tom Ginsburg
 

Call for Papers on Comparative Law

As Chair of the Younger Comparativists Committee of the American Society of Comparative Law, I am pleased to share with our readers the Call for Papers below. The Call for Papers is directed to comparative law scholars who have been engaged as law teachers, lecturers, fellows or another academic capacity for ten years or fewer as of June 30, 2012. I invite inquiries by email at richard.albert [at] bc.edu or telephone at 617.552.3930.


CONFERENCE ANNOUNCEMENT: NEW PERSPECTIVES IN COMPARATIVE LAW 

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.

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Published on November 4, 2011
Author:          Filed under: Call for Papers, hp, Richard Albert
 

Iran: Constitutional Politics in a Dictatorship

Last month, the University of Chicago hosted a Conference on Constitutions in Authoritarian Regimes. Alas, we did not have a paper on Iran, but it seems that constitutional politics in the world’s favorite theocracy are heating up. Indeed, Iran may be exhibit A for the idea that constitutional politics involve significant stakes even in dictatorships.

Last week, the New York Times reported that the Supreme Leader is considering proposing a switch to a parliamentary system. This is a direct outcome of his increasingly serious rivalry with Mahmoud Ahmadinejad, who is a fellow hardliner. Unreported in the Times, however, is that the real object of concern may be Ahmadinejad’s powerful chief of staff Esfandiar Rahim Mashaei, who is likely seen by Ahmadinejad as a successor. Mashaei is believed by the Supreme Leader to be a religious schismatic, and some believe he has direct powers of communion with the Twelfth Imam who is central to Iranian Shiite theology. This poses an obvious threat to the Supreme Leader.

The Supreme Leader constitutionally controls the judiciary, media and military, giving him significant leverage to limit presidential power. This was most apparent during the presidency of Mohammad Khatami, who dared to suggest a civilizational dialogue with the West. Khatami, who was optimistically thought of as the system’s Gorbachev, failed to liberalize the country much, and the reformist impulse was decisively shut down in the bloody aftermath of the stolen 2009 elections that retained Ahmadinejad in office. But the schism within the hardline camp may pose an even greater challenge for the regime than stealing an election and murdering its own citizens.

–TG

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Published on November 3, 2011
Author:          Filed under: authoritarianism, Iran, Tom Ginsburg