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Blog of the International Journal of Constitutional Law

Right to Rebel in Venezuela

This is the second country study in Tom Ginsburg and I’s ongoing project to identify the potential risks and rewards of a constitutional Right to Rebel – Venezuela has had 26 separate constitutions since independence and the most recent have included various justifications for a popular right to rebel.

Case Study 2: Venezuela

The seeds for democratic governance in Venezuela were planted, or rather shot out of the ground, when oil was discovered early in the 20th Century. Oil wealth revolutionized the country, changing Venezuela from a sparsely populated agricultural backwater, to an economically powerful and internationally relevant nation. Democratic institutions began to grow around the increasing flow of petrodollars, leading to the dismantling of autocratic institutions and a brisk transition towards democracy. Venezuelan Historian Francisco Rodriguez argues that the sudden influx of wealth created a new elite commercial class to vie for power with the traditional military caste, which had ruled the country since independence. This tension persists, and remains a defining characteristic of Venezuelan politics.

The last caudillo ruler of Venezuela was overthrown in 1945 through a neatly executed coup-de-tat between Acción Democratica (AD), a group of progressive intellectuals which had become a clandestine political party, and a group of junior military officers who felt that the cronyism among President Angarita’s cadre was holding them back professionally.

The transitional government that followed the 1945 coup, spent two years preparing the Constitution of 1947, a document which would be enforced for only one. This constitution acknowledged a broad range of civil rights, and was criticized by TIME magazine as “the hemisphere’s most leftist.” It provided specific guarantees for labor (a right to strike, paid vacations, pay for Sunday work, profit-sharing etc) and set up a governmental structure similar to that of the United States with a Senate, a Supreme Court and a constitutionally limited executive branch. Congressional and presidential positions would also be decided by popular election.

Controversially, the 1947 constitution also contained a provision to give advantage to the incumbent party, which, for the foreseeable future, would clearly be Acción Democratica. The president could (with congressional approval) arrest anyone on mere suspicion of attempting to overthrow the government. This law led to the institutionalized persecution of the two newly founded minority parties (COPEI and URD.) These outfits in short order began to scheme with many of the same military officers who had overthrown Angarita. These officers felt increasingly marginalized by the current civilian administration and, although many had been personally promoted and honored for their participation in the 1945 coup, the military as an institution become less relevant to government than previously.

In 1948, Carlos Delgado Chalbaud and Marcos Perez Jiménez, with the acquiescence of the minority parties, seized control of the government and exiled AD leaders, declaring the party illegal. They abolished the unpopular 1947 Constitution and reinstated the autocratic 1936 constitution that had preceded it. Although the Constitution of 1947 had lasted for only one year before being overthrown, every Venezuelan constitution since then would base itself upon its foundation.

In 1948 Marcos Perez Jiménez, took sole control of the government, following the mysterious assassination of Chalbaud. The Perez Jiménez regime was marked by ten years of unparalleled economic prosperity and brutal political repression. Known as ‘P.J.’, by the grateful American businessmen, and local elites who profited from the highly liberalized (and minimally regulated) economy, Perez Jiménez modernized Venezuela with a brutal disregard for the needs of its people. Throughout this period Perez Jiménez’s rule was constantly being undermined by the (now underground) AD movement which still held much popular support.

To silence international critics, Perez Jiménez called for a new constitution for 1952. A ‘freely elected’ Constitutional Assembly would draw up a new apparatus of state and then legitimately declare him president. Obviously, all the resources of the State would be at the disposal of P.J.’s new political party, and the still popular AD would be barred from participating. Incentives were put in place, and not until registration figures showed that the government outnumbered the combined opposition (including previously registered AD supporters) by 400,000 votes (out of a total two million), did the election actually move forward.

During this time, exiled Acción Democratica leaders had orchestrated a scheme in which AD supporters were secretly told to register with the government and then vote for either COPEI or URD. As a result, with 25% of the vote counted, Perez Jiménez’s party was trailing both COPEI and URD (neither of which had ever polled above 55,000 votes) by over a hundred thousand votes. Following the 25% announcement, government censors stopped publicizing returns, and the election was promptly declared for Perez Jiménez. In the wake of this blatant electoral fraud Caracas was wracked by riots and student protests which were violently put down by the government and punished (the universities were closed for a year.) Perez Jiménez remained president, but did not get his constitution and his international credibility and domestic position were weakened considerably.

Regardless, Perez Jiménez remained vehement about the necessity of legitimizing his personal rule with a new Constitution. So in 1957, after 10 years of operating under the reinstated autocratic Constitution of 1936, he called up an election for a Constitutional Assembly that would draft a constitution in 1958. This time P.J., would not take any chances. All opposition parties were banned, and when other serious candidates emerged they were thrown in jail. The voting system was restructured so that you could only vote ‘for’ or ‘against’ Perez Jiménez and upon voting you would receive a colored receipt saying which way you had voted that you would deliver, in person, to a government official. Needless to say, the government won the election but the post-election criticisms and protests that resulted were what finally overwhelmed the dictator. The army felt that the election had been an embarrassment to Venezuela, businesses threatened to leave, and the Catholic Church began a letter writing campaign against Perez Jiménez. Two months later he was ousted, and his constitution will forever remain unwritten.

Perez Jiménez’s fall, led to the celebrated return of the exiled AD leadership who, in conjunction with COPEI, set down the Constitution of 1961 this constitution was similar in many respects to the failed 1947 Constitution, although it emphasized interparty cooperation, and placed significant institutional checks on the power of the ruling party. As a way of ensuring the new constitution’s survival and shield it from the fate of its precursor, the drafters included the following provision, the first Right to Rebel in a Venezuelan constitution.

Article 250. This Constitution shall not lose its effect even if its observance is interrupted by force or it is repealed by means other than those provided herein. In such eventuality, every citizen, whether or not vested with authority, has the duty to collaborate in the re-establishment of its effective validity. Those who are found responsible for the acts mentioned in the first part of the preceding paragraph shall be tried in accordance with this Constitution and laws enacted in conformity with it, as shall the principal officials of governments subsequently organized if they have not contributed to the re-establishment of its force and effect.”

The Venezuelan Constitution of 1961 remained in force until 1999 with no suspensions, coups or undemocratic successions; an accomplishment which for Latin America, a region where the average national constitution lasts for only around 10 years, stands out as a huge regional outlier. What eventually destroyed the constitution was economic collapse.

After growing at a steady 6% per annum through the 1960s, the quadrupling of oil prices due to Middle East instability in 1973 caused an unprecedented economic expansion and consumption boom in Venezuela. During this period the government created hundreds of new public works and undertook expensive projects such as the nationalization of the oil (1976), steel (1975) and mining (1975) industries. Public debt grew exponentially and when the price of oil came back down in 1983 the fall in government revenues, alongside higher worldwide inflation and a spike in interest rates caused a severe economic crisis.

For the next 15 years, economic growth remained negative or stagnant as successive administrations attempted to remedy the country’s economic woes to no avail. In 1989, an effort by the Carlos Andres Perez administration to institute IMF free-market reforms doubled the price of gasoline and raised the price of public transportation. Protests began in Caracas’ satellite cities, where citizens relied on public transportation to reach their jobs downtown. The protests quickly turned into riots and spread to the capital. When the so-called “Caracazo” was finally put down around 2500 Venezuelans lay dead alongside millions of dollars in looting and property damage.

Government credibility was severely damaged and the economy grew steadily worse; and an armed military coup against the Carlos Andres Perez administration narrowly failed in 1992. Among the leaders of this coup was Hugo Chavez. Chavez was sentenced to jail for sedition but when Perez was forced to resign for corruption charges, his successor Rafael Calderas pardoned the young lieutenant colonel.

Chavez was released from prison in 1994 and in short order he founded a new political party named Movement Towards a Fifth Republic (V). The 1998 presidential elections saw Chavez run on a populist platform promising a reversal of IMF dictated ‘neoliberal’ policies of the 1990s and better life for Venezuela’s majority-poor. His opponent was Henriquez Salas Romer; a unity candidate backed by the now largely discredited COPEI and AD parties.

Throughout the campaign, the Venezuelan media and conventional elites did much to bring attention to the inherent irony that Chavez would be sworn in under a constitution that he himself had attempted to overthrow less than a decade before. Regardless, Chavez won with 56% of the vote and among Chavez’s first acts was to announce a constitutional referendum to replace the constitution of 1961.

The Constitution of 1999 gave the president stronger centralized powers, abolished the upper house of congress (making the system unicameral), rearranged the Supreme Court, and added two nominally independent new powers: an electoral council and citizens councils. While many of Venezuela’s poor agreed that an overhaul of the governmental system was desirable, the country’s middle and upper classes looked upon the stronger presidency with suspicion. The draft passed through plebiscite with 71% support and the draft constitution became law.

The new constitution retained the gist of the Right to Rebel insurance policy from 1961:

Article 333: This constitution shall not cease to be in effect if it ceases to be observed due to acts of force or because or repeal in any manner other than as provided for herein. In such eventuality, every citizen, whether or not vested with official authority, has a duty to assist in bringing it back into actual effect.”

But also introduced a new provision, establishing a natural law argument for Chavez’ actions in 1992:

Article 350: The people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights.”

While the provision formalized Chavez’ philosophical argument for legitimacy; reconciling his own role as failed coup-master with that of his current position as democratically elected president into law, it has proven problematic during the tumultuous years to come.

A coup that briefly overthrew Chavez in April of 2002 at times invoked Article 350 as a justification for their actions. When the plot miscarried and Chavez returned to power the opposition organized a general strike, a record period of civil disobedience which caused irreversible harm to the economy and was again justified through the Constitutional Right to Rebel.

In October of the same year an article in the international periodical the Economist reported the following:

“Dissident generals and admirals, many accused of backing April’s coup, declared themselves in ‘legitimate rebellion’ against Mr. Chavez, and set up camp in Plaza Altamira, a square in a leafy Caracas district. Calling for civil disobedience to force the president’s resignation, they were joined by dozens of more junior officers and by several thousand civilians. The officers invoked Mr. Chavez’s own, 1999 constitution, which enshrines the right to rebel against any regime that “contradicts democratic values, principles and guarantees, or limits human rights…”

The Right to Rebel again seems to serve as a double-edged sword, offering short term legitimacy to leaders with questionable democratic pedigrees but also causing a permanent legal and philosophical justification to those who would seek to overthrow them.

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A Right to Rebel in Venezuela

A second country study in Tom Ginsburg and I’s ongoing project to identify the risks and rewards of a constitutional Right to Rebel – Venezuela has had 26 separate constitutions since independence and the most recent have included various justifications for a popular right to rebel.

Case Study 2: Venezuela

The seeds for democratic governance in Venezuela were planted, or rather shot out of the ground, when oil was discovered early in the 20th Century. Oil wealth revolutionized the country, changing Venezuela from a sparsely populated agricultural backwater, to an economically powerful and internationally relevant nation. Democratic institutions began to grow around the increasing flow of petrodollars, leading to the dismantling of autocratic institutions and a brisk transition towards democracy. Venezuelan Historian Francisco Rodriguez argues that the sudden influx of wealth created a new elite commercial class to vie for power with the traditional military caste, which had ruled the country since independence. This tension persists, and remains a defining characteristic of Venezuelan politics.

The last caudillo ruler of Venezuela was overthrown in 1945 through a neatly executed coup-de-tat between Acción Democratica (AD), a group of progressive intellectuals which had become a clandestine political party, and a group of junior military officers who felt that the cronyism among President Angarita’s cadre was holding them back professionally.

The transitional government that followed the 1945 coup, spent two years preparing the Constitution of 1947, a document which would be enforced for only one. This constitution acknowledged a broad range of civil rights, and was criticized by TIME magazine as “the hemisphere’s most leftist.” It provided specific guarantees for labor (a right to strike, paid vacations, pay for Sunday work, profit-sharing etc) and set up a governmental structure similar to that of the United States with a Senate, a Supreme Court and a constitutionally limited executive branch. Congressional and presidential positions would also be decided by popular election.

Controversially, the 1947 constitution also contained a provision to give advantage to the incumbent party, which, for the foreseeable future, would clearly be Acción Democratica. The president could (with congressional approval) arrest anyone on mere suspicion of attempting to overthrow the government. This law led to the institutionalized persecution of the two newly founded minority parties (COPEI and URD.) These outfits in short order began to scheme with many of the same military officers who had overthrown Angarita. These officers felt increasingly marginalized by the current civilian administration and, although many had been personally promoted and honored for their participation in the 1945 coup, the military as an institution become less relevant to government than previously.

In 1948, Carlos Delgado Chalbaud and Marcos Perez Jiménez, with the acquiescence of the minority parties, seized control of the government and exiled AD leaders, declaring the party illegal. They abolished the unpopular 1947 Constitution and reinstated the autocratic 1936 constitution that had preceded it. Although the Constitution of 1947 had lasted for only one year before being overthrown, every Venezuelan constitution since then would base itself upon its foundation.

In 1948 Marcos Perez Jiménez, took sole control of the government, following the mysterious assassination of Chalbaud. The Perez Jiménez regime was marked by ten years of unparalleled economic prosperity and brutal political repression. Known as ‘P.J.’, by the grateful American businessmen, and local elites who profited from the highly liberalized (and minimally regulated) economy, Perez Jiménez modernized Venezuela with a brutal disregard for the needs of its people. Throughout this period Perez Jiménez’s rule was constantly being undermined by the (now underground) AD movement which still held much popular support.

To silence international critics, Perez Jiménez called for a new constitution for 1952. A ‘freely elected’ Constitutional Assembly would draw up a new apparatus of state and then legitimately declare him president. Obviously, all the resources of the State would be at the disposal of P.J.’s new political party, and the still popular AD would be barred from participating. Incentives were put in place, and not until registration figures showed that the government outnumbered the combined opposition (including previously registered AD supporters) by 400,000 votes (out of a total two million), did the election actually move forward.

During this time, exiled Acción Democratica leaders had orchestrated a scheme in which AD supporters were secretly told to register with the government and then vote for either COPEI or URD. As a result, with 25% of the vote counted, Perez Jiménez’s party was trailing both COPEI and URD (neither of which had ever polled above 55,000 votes) by over a hundred thousand votes. Following the 25% announcement, government censors stopped publicizing returns, and the election was promptly declared for Perez Jiménez. In the wake of this blatant electoral fraud Caracas was wracked by riots and student protests which were violently put down by the government and punished (the universities were closed for a year.) Perez Jiménez remained president, but did not get his constitution and his international credibility and domestic position were weakened considerably.

Regardless, Perez Jiménez remained vehement about the necessity of legitimizing his personal rule with a new Constitution. So in 1957, after 10 years of operating under the reinstated autocratic Constitution of 1936, he called up an election for a Constitutional Assembly that would draft a constitution in 1958. This time P.J., would not take any chances. All opposition parties were banned, and when other serious candidates emerged they were thrown in jail. The voting system was restructured so that you could only vote ‘for’ or ‘against’ Perez Jiménez and upon voting you would receive a colored receipt saying which way you had voted that you would deliver, in person, to a government official. Needless to say, the government won the election but the post-election criticisms and protests that resulted were what finally overwhelmed the dictator. The army felt that the election had been an embarrassment to Venezuela, businesses threatened to leave, and the Catholic Church began a letter writing campaign against Perez Jiménez. Two months later he was ousted, and his constitution will forever remain unwritten.

Perez Jiménez’s fall, led to the celebrated return of the exiled AD leadership who, in conjunction with COPEI, set down the Constitution of 1961 this constitution was similar in many respects to the failed 1947 Constitution, although it emphasized interparty cooperation, and placed significant institutional checks on the power of the ruling party. As a way of ensuring the new constitution’s survival and shield it from the fate of its precursor, the drafters included the following provision, the first Right to Rebel in a Venezuelan constitution.

Article 250. This Constitution shall not lose its effect even if its observance is interrupted by force or it is repealed by means other than those provided herein. In such eventuality, every citizen, whether or not vested with authority, has the duty to collaborate in the re-establishment of its effective validity. Those who are found responsible for the acts mentioned in the first part of the preceding paragraph shall be tried in accordance with this Constitution and laws enacted in conformity with it, as shall the principal officials of governments subsequently organized if they have not contributed to the re-establishment of its force and effect.”

The Venezuelan Constitution of 1961 remained in force until 1999 with no suspensions, coups or undemocratic successions; an accomplishment which for Latin America, a region where the average national constitution lasts for only around 10 years, stands out as a huge regional outlier. What eventually destroyed the constitution was economic collapse.

After growing at a steady 6% per annum through the 1960s, the quadrupling of oil prices due to Middle East instability in 1973 caused an unprecedented economic expansion and consumption boom in Venezuela. During this period the government created hundreds of new public works and undertook expensive projects such as the nationalization of the oil (1976), steel (1975) and mining (1975) industries. Public debt grew exponentially and when the price of oil came back down in 1983 the fall in government revenues, alongside higher worldwide inflation and a spike in interest rates caused a severe economic crisis.

For the next 15 years, economic growth remained negative or stagnant as successive administrations attempted to remedy the country’s economic woes to no avail. In 1989, an effort by the Carlos Andres Perez administration to institute IMF free-market reforms doubled the price of gasoline and raised the price of public transportation. Protests began in Caracas’ satellite cities, where citizens relied on public transportation to reach their jobs downtown. The protests quickly turned into riots and spread to the capital. When the so-called “Caracazo” was finally put down around 2500 Venezuelans lay dead alongside millions of dollars in looting and property damage.

Government credibility was severely damaged and the economy grew steadily worse; and an armed military coup against the Carlos Andres Perez administration narrowly failed in 1992. Among the leaders of this coup was Hugo Chavez. Chavez was sentenced to jail for sedition but when Perez was forced to resign for corruption charges, his successor Rafael Calderas pardoned the young lieutenant colonel.

Chavez was released from prison in 1994 and in short order he founded a new political party named Movement Towards a Fifth Republic (V). The 1998 presidential elections saw Chavez run on a populist platform promising a reversal of IMF dictated ‘neoliberal’ policies of the 1990s and better life for Venezuela’s majority-poor. His opponent was Henriquez Salas Romer; a unity candidate backed by the now largely discredited COPEI and AD parties.

Throughout the campaign, the Venezuelan media and conventional elites did much to bring attention to the inherent irony that Chavez would be sworn in under a constitution that he himself had attempted to overthrow less than a decade before. Regardless, Chavez won with 56% of the vote and among Chavez’s first acts was to announce a constitutional referendum to replace the constitution of 1961.

The Constitution of 1999 gave the president stronger centralized powers, abolished the upper house of congress (making the system unicameral), rearranged the Supreme Court, and added two nominally independent new powers: an electoral council and citizens councils. While many of Venezuela’s poor agreed that an overhaul of the governmental system was desirable, the country’s middle and upper classes looked upon the stronger presidency with suspicion. The draft passed through plebiscite with 71% support and the draft constitution became law.

The new constitution retained the gist of the Right to Rebel insurance policy from 1961:

Article 333: This constitution shall not cease to be in effect if it ceases to be observed due to acts of force or because or repeal in any manner other than as provided for herein. In such eventuality, every citizen, whether or not vested with official authority, has a duty to assist in bringing it back into actual effect.”

But also introduced a new provision, establishing a natural law argument for Chavez’ actions in 1992:

Article 350: The people of Venezuela, true to their republican tradition and their struggle for independence, peace and freedom, shall disown any regime, legislation or authority that violates democratic values, principles and guarantees or encroaches upon human rights.”

While the provision formalized Chavez’ philosophical argument for legitimacy; reconciling his own role as failed coup-master with that of his current position as democratically elected president into law, it has proven problematic during the tumultuous years to come.

A coup that briefly overthrew Chavez in April of 2002 at times invoked Article 350 as a justification for their actions. When the plot miscarried and Chavez returned to power the opposition organized a general strike, a record period of civil disobedience which caused irreversible harm to the economy and was again justified through the Constitutional Right to Rebel.

In October of the same year an article in the international periodical the Economist reported the following:

“Dissident generals and admirals, many accused of backing April’s coup, declared themselves in ‘legitimate rebellion’ against Mr. Chavez, and set up camp in Plaza Altamira, a square in a leafy Caracas district. Calling for civil disobedience to force the president’s resignation, they were joined by dozens of more junior officers and by several thousand civilians. The officers invoked Mr. Chavez’s own, 1999 constitution, which enshrines the right to rebel against any regime that “contradicts democratic values, principles and guarantees, or limits human rights…”

The Right to Rebel again seems to serve as a double edged sword, offering short term legitimacy to leaders with questionable democratic pedigrees but also causing a permanent philosophical justification to those who would seek to overthrow them…

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

The Conservative Consolidation in Canada

As our colleague Ran Hirschl reported earlier this month, Canadian Prime Minister Stephen Harper recently filled two vacancies on the Supreme Court of Canada. With those two appointments, four is now the total number of Prime Minister Harper’s Supreme Court nominations since he ascended to power in 2006.

A few observations occur to me in light of the changing Canadian political terrain.
First, the Supreme Court now counts a majority of five justices who were chosen by conservative prime ministers. This is new ground for modern Canadian Supreme Court. The Court’s last conservative-nominated judicial majority exited until August 2002, when then-Prime Minister Jean Chretien, leader of the Liberal Party, made Marie Deschamps his fifth successful nominee for the Supreme Court.

Second, by 2014, Prime Minister Harper will have named a total of six Supreme Court justices, bringing to seven the total number of justices nominated by conservative prime ministers, assuming the balance of the court’s membership remains the same. (Under Canada’s mandatory judicial retirement law, justices must retire by the age of 75. Two sitting justices will soon reach that limit. Justices Morris Fish and Louis LeBel will turn 75 in 2013 and 2014, respectively.)
More broadly, this new judicial majority elevates the Canadian conservative movement one step closer to completing the Conservative superfecta in Canada. Conservatives currently control a majority in the House of Commons, the Senate, and the Supreme Court. Once the senior bureaucracy is filled with a majority of conservative officeholders and adherents–this may have already occurred, by the way–conservatives will have consolidated all public power in Canada.

This new zero in Canadian politics is not necessarily something that Canadians should either fear or invite. It is rather something that comparativists should note as they study the changing institutional interrelationships in Canada among the Government, the Parliament, the judiciary, and the people themselves.

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Published on October 30, 2011
Author:          Filed under: hp, Richard Albert, Stephen Harper, Supreme Court of Canada
 

Fidel Castro’s Right to Rebel

Tom Ginsburg and I are currently exploring the causes and effects of “right to rebel” provisions in constitutions. One of the country studies we will be including in our upcoming article on the subject is the following example from Cuban History. We would very much welcome any comments on the topic, or suggestions as to other countries that may provide similarly relevant historical illustrations.

Case Study – Right to Rebel in the Cuban Revolution

The Cuban Constitution of 1902 was written shortly after the country became independent following the Spanish American War. As might be expected from the political context of its creation, this constitution was a very US-friendly document and into it was incorporated the controversial Platt Amendment: a provision establishing US land and economic control over the island, and allowing for US intervention over Cuban domestic affairs.


In 1933, a group of army commanders overthrew president Gerardo Machado in an uprising known as “the Sergeant’s rebellion.” Among them was a young Fulgencio Batista. Batista was a mulatto (and a coup leader) and these traits often put him at odds with Cuban landowners and high society. Thus while Batista remained firmly in control of the army throughout this period of 1933-1940 he was forced to rule from behind a series of more socially palatable figurehead president.


The 1901 Constitution had been suspended in 1934, and replaced with an abrogated provisional constitution that did away with the Platt Amendment and secured some basic rights, but mostly just outlined the norms and responsibilities for various bodies in the provisional government. A formal, finalized constitution was not put in place again until 1940. This Constitution did not include a right to rebel provision although some contemporary Latin constitutions such as Guatemala, and Honduras already had a constitutional “right to insurgency” in place.


This constitution was initially considered to be quite progressive for its time. The new document, (a) substantiated voting as a right, obligation and function of the people; (b) endorsed the previously established form of government, specifically republican, democratic and representative; (c) confirmed individual rights and privileges including private property rights; and (d) introduced the notion of “collective rights.”


With universal voting rights having been established Batista was finally able to become president in his own right despite the antipathy of the traditional ruling class. In the 1940 election he ran as a progressive populist and remains the only non-white president Cuba has had to this day.


The 1940 Constitution also established a right to rebel. Article 40 reads:


ART. 40. Provisions of a legal, governmental, or any other nature that regulate the exercise of the rights guaranteed by this Constitution, shall be null if they abridge, restrict, or corrupt said rights.

Adequate resistance for the protection of individual rights previously guaranteed, is legitimate.

Violations of this title shall be prosecuted by public action, without precaution or formality of any kind, and by simple denunciation.


The enumeration of the rights guaranteed in this title does not exclude others established in this Constitution, or other rights of an analogous nature, or those that are derived from the principle of the sovereignty of the people and from the republican form of government. “

Previous critics of Batista had been vocal in denouncing the inherent irony at the prospect of Cuba democratically electing a man who had brought down the previous constitutional regime, into the position where he would be most responsible for defending the new one. The inclusion of a “right to rebel” in the 1940 Cuban Constitution provided validation for the 1933 coup which served as an important source of legitimacy for Batista during his presidential run. Article 40 was a double-edged sword however, a Faustian shortcut which in short order turned against its creator. As Tom Ginsburg and I will argue in an upcoming article, this may be a deceptively common occurrence.


In 1944, Batista peaceably resigned the presidency and traveled to the United States. He returned and attempted to run for reelection in 1952 but when the polls placed him in a distant third, he instead used his influence within the army to orchestrate a second coup, seizing power undemocratically and cancelling the upcoming election. Fidel Castro, a young lawyer who had previously been running for a parliamentary seat in the canceled election, openly began fomenting rebellion against Batista in response. From the outset Castro justified doing so by invoking article 40.


In 1953’s History Will Absolve Me, a speech given by Castro during his first trial, the rebel argued that:Cuba is suffering from a cruel and base despotism. You are well aware that resistance to despots is legitimate. This is a universally recognized principle and our 1940 Constitution expressly makes it a sacred right, in the second paragraph of Article 40.”


In 1957, Dr. Carl Manuel Urratia Lleo likewise turned to Article 40 in his widely publicized dissenting opinion as the minority vote in a 3 Judge tribunal that convicted 40 Cuban youths for armed rebellion against the Batista Regime. Having thus angered the dictatorship Urratia Lleo fled to Miami and he remained there as a vehement philosophical critic of the regime until he was picked by a newly triumphant Castro to be the country’s first revolutionary president in 1959.


The new revolutionary rulers immediately suspended the constitution of 1940 and governed without any constitution in place until 1976. When a new constitution was eventually put in place, the right to rebel outlined in Article 40 (or it’s philosophical equivalent) was nowhere to be found. And while Urratia Lleo did not take long to run afoul of the revolution, again leaving Cuba for exile after only six months as president, the Castro regime remains in place after more than 50 years.

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Published on October 30, 2011
Author:          Filed under: Cuba, Daniel Lansberg-Rodriguez, Right to Rebel, Tom Ginsburg
 

Libya’s Constitution: Take it Slow

More reflections on the time line currently being considered by Libya’s National Transitional Council and other considerations for the forthcoming constitution making process here: http://www.usip.org/publications/extending-libya-s-transitional-period-capitalizing-the-constitutional-moment

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Published on October 24, 2011
Author:          Filed under: constitutional change, hp, HP; constitutional design, Jason Gluck, Libya
 

Libya’s Constitution: Take it Slow


[From the Chicago Tribune]

Now that Moammar Gadhafi has fallen, Libya’s victorious revolutionaries should heed Iraq’s missteps as they begin the critical task of political reconstruction, including Iraq’s hurried 2005 constitution-making process.

There are as many ways to write a constitution as there are spellings of Gadhafi’s name, and some processes can exacerbate conflict rather than resolve it. Iraq’s constitution was a complex bargain, drawn up in very different circumstances. But it offers lessons for Libya. Most important, the Libyan rebels should avoid the temptation to move too quickly.

The Iraqi Constitution was adopted on a very short timetable imposed by the occupation authorities. By insisting on producing a constitution before the various political forces had reached an underlying agreement, the occupation authorities ensured that much of the Sunni population was left out of the process. The constitution arguably inflamed the civil war.
In addition, the strict timetable Iraq imposed for completion of the constitutional draft caused many decisions to be postponed for a future legislature. But the gridlock in Iraq’s parliamentary system has meant that few of these decisions were ever taken. The distribution of Iraq’s oil revenues is to be handled by a law that has only this month been proposed in parliament, six years after the adoption of the constitution. An upper house called the Federation Council, to represent regions, has never been formed. A set of amendments proposed by a constitutional review commission has not yet been submitted to a vote. Many other crucial decisions have gone unresolved.

This suggests the need to let the political process evolve before committing to a permanent set of institutions. The Libyan rebel’s National Transitional Council issued an interim constitution last month. It calls for elections for a National Assembly within eight months of the liberation of Tripoli, and a new draft constitution two months after that. The draft will be presented to the public for one month of debate before being submitted to a referendum. This timetable shows an admirable commitment to a short transition, as there is the possibility for a new constitution in a little over a year. However, the timetable may be too ambitious.

Studies of other nations’ constitutions suggest that stability can depend on making a document with attention to detail, and with enough time for all factions to be heard. So it is important that Libya engage the long-repressed public. Post-Gadhafi Libya faces tough choices on governing institutions, on the organization of society and on how to deal with the old regime. Moving too quickly can inhibit public discussion of these issues and give the impression of an elite-led backroom deal. It can also give the advantage to the most well-organized groups, which seem to be the Islamists. To the extent that tribal and other interests need to be accommodated, there must be time for them to develop their positions and to bargain. Further, Libyans deserve a role in making their constitution and should be given an opportunity to provide suggestions. There also needs to be ample time for public deliberation of the draft constitution. All this will take several months in the best of circumstances, not the three months allocated for drafting and passage.

As the French revolutionary Mirabeau once said, “when you undertake to run a revolution, the difficulty is not to make it go; it is to hold it in check.” Slowing down and engaging the public is the best way to channel the revolutionary optimism into a stable governance structure for the future.

–Tom Ginsburg

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Published on October 21, 2011
Author:          Filed under: hp, Libya, Tom Ginsburg
 

The Right to Food in Mexico


As the price of commodities has skyrocketed in recent years, a number of countries have seen citizens take to the street to let the authorities know of their displeasure at the price of their favorite grain — whether it’s rice in Asian countries, wheat in Europe, or corn in Mexico, where tortillas should accompany any meal. This week Mexico joined a smallish group of countries that provide for the constitutional right to food. (David Law wrote last year about a move afoot in India). According to a newly enacted revision to Article 4 of the storied Mexican constitution:

Article 4: Every person has the right to adequate food to maintain his or her wellbeing and physical, emotional and intellectual development. The State must guarantee this right.
Presumably, Mexican citizens already enjoyed this right by virtue of their country’s signing of the International Covenant on Social, Economic, and Cultural rights, Article 11 of which includes this provision:
Article 11.1: The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.
Nonetheless, redundancy in rights provision between international treaty arena and the domestic law is a well-known phenomenon. Most constitution drafters writing after the Universal Declaration of Human Rights and its two legal arms (the covenant on civil and political rights and the aforementioned one on social, economic, and cultural rights) have seen fit to duplicate these international rights in domestic constitutions. For new constitutions, these international rights naturally make for a good place for drafters to start, especially when the country is already a signatory to the treaty (and theoretically already committed). However, it’s less obvious that constitutions that have gotten by many years without the many rights spelled out in the treaties would be revised to include them.

Clearly, the Mexican constitution, which has proved highly accomodating of new constitutional technology, is one that would do so. Food interest groups in Mexico, many of which are aligned with the agricultural producers (big and small) in the country, have long recognized the flexibility of Mexican charter and have been pushing for a food right for at least 15 years. This week marks their success. I’m off to celebrate with a taco al pastor and an agua fresca (sandia, hopefully).

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Published on October 20, 2011
Author:          Filed under: Mexico, right to food, Zachary Elkins
 

Two new Supreme Court of Canada Justices nominated

Canada’s Prime Minister Stephen Harper has just named his two nominees to fill the two vacant seats on the Supreme Court of Canada created with the stepping down of Justices Louise Charron and Ian Binnie from Ontario, who announced their departure earlier this year at the age of 60 and 72 respectively (mandatory retirement age is 75). The two new nominees are Andromache Karakatsanis (56) and Michael Moldaver (64), both of the Ontario Court of Appeal. The two nominations are subject to a parliamentary committee hearing and approval to be held later this week.

Three of the nine Supreme Court of Canada seats are reserved by law to jurists from Quebec, although according to a long-established constitutional convention, the remaining six seats are also held on a regional basis: three seats to Ontario, two to the west (one to the prairie provinces and one to British Columbia), and one to the maritime provinces.

Justice Moldaver is what may be termed a “professional jurist”, a graduate of the University of Toronto (1971), taught at Osgoode Hall Law School, a former co-chair of the Canadian Bar Association, and has served as a judge for the past 21 years. Reportedly, Moldaver is non-bilingual; calls for an official “bilingual requirement” for federal judicial appointments is an issue that came to the fore of public debate a couple of years ago, before subsiding somewhat more recently. A parliamentary report on the matter may be found here.

Prior to her becoming an Ontario Superior Court judge in 2002, and an Ontario Court of Appeal judge as recently as March 2010, MJ Karakatsanis had held several key public service positions in Ontario in the 1990s and early 2000s, all under the Conservative Party provincial government. Of the four appointments to the Supreme Court of Canada made under the Harper Conservative Party government since 2006, this appears to be the first overtly “political” one. Having been in two “minority government” situations since 2006, including the initiation of two problematic “prorogation of parliament” stints in late 2008 and early 2010, the Conservative Party won a comfortable majority in the last federal elections held earlier this year. That said, the so-called “attitudinal” model of judicial behaviour has never played itself out nearly as neatly at the Supreme Court of Canada as may have been the case in United States Supreme Court. Either way, with the appointment of Madam Justice Karakatsanis, there will continue to be four women on the bench, including Chief Justice Beverly McLachlin.

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Published on October 17, 2011
Author:          Filed under: Ran Hirschl, Supreme Court of Canada
 

Doctrine of Necessity in Nepal: A Bractonian Blunder?

Henry de Bracton was a 13th Century British jurist who, among other things, defended supreme papal authority over secular affairs and recommended that criminal trials be undertaken “by ordeal” (wherein the defendant would hold red-hot iron or be thrown bound into a lake under the premise that a just god would protect the innocent). While the interim centuries have seen the aforementioned ideas fall largely into disuse, another of Bracton’s maxims seems to be fast becoming the unconstitutional norm in the former kingdom of Nepal: the so-called “Doctrine of Necessity.”

The doctrine essentially says that state actors can—when “necessary”—undertake unconstitutional, extra-legal or otherwise invalid actions so as to restore order. In 1954, the Supreme Court of Pakistan became the first to invoke this device as a common law justification for the dissolution of parliament by the executive. Twenty-five years later, the same court again cited the doctrine to justify the extra-legal execution of former Prime Minister Zulfikar Ali Bhutto by General Zia. Its use has since spread beyond the subcontinent however. In the 1980s Grenada used it to set up a criminal court and imprison political enemies before a new constitution could be set in place, and over the last three years both Fiji and Nigeria have turned to Bracton as a means for empowering a new executive following the unconstitutional overthrow of a predecessor.

Nepal’s use of the doctrine of necessity has been highly original as might be expected from the only modern state with a non-rectangular flag. While other countries have invoked the device as a “get out of jail free card” to be used in the wake of complete political breakdown, the doctrine is fast becoming a governmental norm in Kathmandu something along the lines of an ad-hoc proxy constitution.

This troubling trend began in April 2010 when the Nepalese Supreme Court determined that any article of the interim constitution not affecting“ a basic human right” could be amended by parliamentary leaders if the doctrine of necessity was invoked and the action approved by the judiciary. The frustrated leaders of the heavily polarized Nepalese parliament have since grown to rely on the doctrine when unable to secure the necessary consensus to govern in accordance with the interim constitution they themselves championed. Relying on the Supreme Court as a back door mechanism with which to make their ideas law, the device has been used twice to extend the deadline before which a new, and ostensibly permanent, constitution must be put into place.

The real problem with this doctrine is that “necessity”—the validating trigger for illegal action—is by nature mercurial and what may seem the only option at a given time will rarely be thought to have been so in hindsight. By bypassing the existing constitutional framework state actors may facilitate short term solutions but they also create precedents that can weaken governmental legitimacy for a very long time. Worst yet, the concept of “necessity” is also highly subjective and in the context of governance those actors in the position to determine “necessity”, and those with the best access to information, are almost always the ones with the greatest potential conflicts of interest regarding the outcome of the determination itself.

Constitutions are supposed to set up a structure for governance, define protocol, separate responsibilities and limit governmental power. The use of the “doctrine of necessity” as a legal justification for what is essentially a governmental adhocracy undermines the value of the existing interim constitution, compliance with which will go a long way towards empowering its successor. If this trend continues, then the governmental structures of the new constitution currently being debated in Kathmandu—the disagreements over which have caused much of the current governmental paralysis—will be rendered irrelevant as the new constitution (much like it’s “interim” predecessor) will likely be a sham.

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Published on October 6, 2011
Author:          Filed under: Daniel Lansberg-Rodriguez, Fiji, Nepal, Nigeria, Pakistan
 

New Comparative Public Law Scholarship

As Chair of the Younger Comparativists Committee (YCC) in the American Society of Comparative Law (ASCL), I’m pleased to announce that the YCC will host a panel on “Building Constitutionalism in Post-Authoritarian States” at the ASCL’s Annual Meeting.

The panel will feature the work of two younger comparativists: William Partlett’s paper on Making Constitutions Matter; and (2) Ozan Varol’s paper on The Democratic Coup D’Etat. Their papers were selected in a double-blind review process among many outstanding submissions from younger comparativists across the globe.

Two senior comparative public law scholarsLaurence Claus of the University of San Diego and Fred Morrison of the University of Minnesotahave graciously agreed to serve as discussants.
The ASCL’s Annual Meeting is scheduled for October 20-22 in Sacramento at the Pacific McGeorge School of Law.
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Published on October 5, 2011
Author:          Filed under: hp, Richard Albert, Younger Comparativists; New Scholarship