Blog of the International Journal of Constitutional Law

Three Stages of Socio-Economic Rights?

The South African Constitutional Court has issued internationally significant decisions abolishing the death penalty, legalizing same-sex marriage, and ruling that their Constitution’s socio-economic rights provision are enforceable rather than aspirational. The socio-economic rulings are among the first of their kind internationally with some exceptions (for example, India and Columbia). Yet the Constitutional Court has recently reached a troubling third stage in its socio-economic cases. This will be the first of three posts explaining what has transpired.

The first stage was embodied in decisions such as Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC), where the Court found that the national government violated Section 26 of the Constitution’s guarantee of access to housing, because the government acted unreasonably in having no policy to shelter the homeless. While honoring the right, the Court left the remedy to the government because of separation of powers and other concerns. The Court went a step further in Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC) by ordering the government to provide a drug, to pregnant women with AIDS, that would prevent transmission of the disease to their babies. The Court said the government’s refusal was unreasonable in light of Section 27’s guarantee of the right to access health care. Cass Sunstein has argued that both cases adopted an “administrative law” model of deference to the government, in terms of the reasonableness test. The government, however, must also take action to progressively realize the right. These cases refused, though, to impose “minimum core” obligations on the government because the Court said that would be too rigid, especially in light of scarce resources and other factors. South African scholars have generally criticized the decisions for not adopting a minimum core, though I have written extensively about why that criticism is mistaken as have others. Interestingly, former Constitutional Court Justice Richard Goldstone recently stated that “future litigants are open to raise the (minimum core) issue on the basis of an adequate factual record in the trial court.” Gauri, Brinks, Eds., “Courting Social Justice” xii (Cambridge 2008) The next post will discuss the second stage of the Court’s decisions.

Mark Kende

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Published on January 22, 2010
Author:          Filed under: Uncategorized

Constitutional Overhaul in Mexico?

In 2010, most Latin American countries celebrate the bicentennial anniversary of the start of their wars of independence from Spain. Mexico, in addition, celebrates the centennial anniversary of its social revolution. In part because “we cannot afford to waste this year’s symbolic political energy” (words of the Secretary of the Interior), and in part to divert the attention from the war on drugs, Mexican President Felipe Calderón has launched a “Decalogue” of political reforms to update the rules of the political game for the young Mexican democracy. According to the government’s proposal, the reforms have two main objectives: to facilitate the coordination among branches of government and to bring the citizens closer to the political system. The reforms include establishing the possibility of reelection, for up to twelve years, of local officials and legislators at the state and federal levels; giving a certain number of citizens the power to propose legislative initiatives; strengthening the Executive’s veto and legislative initiative; establishing a run-off election for the Presidency; and giving to the Supreme Court the power to present legislative initiatives in matters related to the judiciary.

This is not the first time that Mexican politicians propose a “structural reform” of the political system. In fact, since the administration of President Carlos Salinas de Gortari (1988-1994) proposals from different parties have been at the table. But after much discussion, at the end nothing happens. Because these political reforms imply constitutional amendments, the consensus needed to accomplish them (supermajorities in both legislative chambers and approval from a majority of state legislatures) has fallen short in many occasions. For years, the opposing political forces have agreed to reform mainly the electoral system successfully leveling the playing field in a series of reforms that, spanning the last thirty years of the last century, ended up with the defeat of the PRI in the 2000 presidential election. The first non-PRIísta president, however, inherited a constitutional framework self-made by the hegemonic party that governed the country without interruptions for seventy years.

It is not clear if the political rules of the game will be transformed this time. For some, given the fragmentation of the political system and the uncertainty over the electoral results of the next presidential election in 2012, only the reforms that distribute power and reduce the stakes of winning and losing have a real chance to pass. For others, different calculations by the political parties will play an important role. For instance, for the first time since 2000 there is a PRIísta pre-candidate that has real chances of winning back the presidency. Will this expectation be sufficient to motivate the PRI to strengthen the legislative powers of the president? How would the current executive and his party, the PAN, react to this calculus? I will keep track of the reform process and post the news in our blog.


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Published on January 22, 2010
Author:          Filed under: constitutional change, hp, Julio Rios-Figueroa, Latin America, Mexico

New blogger coming soon: Mark Kende

We have a new blogger coming soon. Mark Kende is the James Madison Chair Professor in Constitutional Law and Director of the Drake University Constitutional Law Center, which was endowed by the U.S. Congress. He is the author of “Constitutional Rights in Two Worlds: South Africa and the United States” (Cambridge Univ. Press 2009). He is also the co-author of a forthcoming casebook on comparative constitutional law with Lexis Publishing. Professor Kende is a two time Fulbright Scholar, and former Chair of the Association of American Law Schools Section on Constitutional Law as well as of its Section on Africa. Besides the U.S., he has published or lectured in Australia, Canada, China, Columbia, the Democratic Republic of the Congo, France (at the Sorbonne in French), Germany, Hong Kong, Moldova, South Africa, Spain, the United Kingdom (at Oxford), and elsewhere. He has been a Visiting Professor at Notre Dame Law School, the University of Tennessee Law School, the University of Nantes (France), as well as the University of Durban and the University of Stellenbosch in South Africa. He serves on the Board of Advisors of the University of Hong Kong Center on Comparative Law. He has co-taught classes with several U.S. Supreme Court Justices and worked as an attorney with Barack Obama.

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Published on January 19, 2010
Author:          Filed under: Tom Ginsburg

Recent Scholarship on Comparative Constitutional Law

Four recent papers, each one excellent, merit the attention of readers with an interest in comparative constitutional law.

The first, Studying Japanese Law Because It’s There, is an essay by Tom Ginsburg, my colleague here at the Comparative Constitutions Blog. Recently published in the American Journal of Comparative Law, this very important paper states in compelling fashion the case for the intrinsic scholarly benefits, as opposed to the purely practical applications, of the comparative enterprise.

Readers will also be interested in Government in Opposition, an exceptional piece written by David Fontana, another fellow blogger. In this piece, which appears in the Yale Law Journal, Professor Fontana illuminates a fascinating development in constitutional design: an emergent form of separated powers in which governing power is shared between electoral winners and losers.

A third article worthy of readers’ attention comes from the pen of Fiona De Londras and Suzanna Kingston, and appears in the American Journal of Comparative Law. In Rights, Security and Conflicting International Obligations, Professors De Londras and Kingston probe the decisional methodology of the European Court of Justice, the Council of Europe, the United Kingdom, France, Germany, and the courts of the European Union on the balance between security and rights.

Finally, let me note the paper of Lorenzo Zucca on Montesquieu, Methodological Pluralism and Comparative Constitutional Law. In this piece, Zucca applies the insights of Montesquieu to comparative constitutionalism, arguing, quite sensibly and persuasively, that the best comparisons exhibit a careful appreciation of history, political practice, sociology as well as moral psychology and evolutionary biology. Professor Zucca’s paper is a wonderful contribution to our continuing conversation on comparative constitutionalism.

I recommend all four papers enthusiastically.

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Top ten constitutional events in China

Here’s an interesting one. China’s Prosecutorial Daily has produced a list of the “top ten constitutional events” in 2009. Donald Clarke has kindly translated the list here. It’s a remarkable document in its conception of what counts as constitutional: many of the incidents involve abuse of power by lower level officials.

We tend to think of the key constitutional question as whether or not a formal document is justiciable, and of course the Chinese constitution is not. But the constitution also operates through the practice of government officials like prosecutors, who in this instance seem to conceive of their role in policing lower level officials as a kind of constitutional enforcement.

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Published on January 17, 2010
Author:          Filed under: China, hp, Tom Ginsburg

Will the head of state in Canada please stand up?

Several years after you read Peter Russell’s excellent book on the evolution of the Canadian constitution (now in its 3rd edition), you will be forgiven for forgetting the details of the many twists and turns of Canada’s constitutional odyssey. You will likely remember, however, Russell’s anecdote in the preface in which he describes the motivation for the book. It seems that Walter Berns had turned to Russell in a seminar they co-taught to declare, “Peter, you Canadians have not constituted yourself as a people.” Ouch.

It is interesting, then, to cast our eyes now and then to the seemingly endless debate about Canadian sovereignty. There is a lot of good public opinion research on the subject, most of it suggesting increasing support for a proper republic over a monarchy, and perhaps the chance that Canadians will “constitute themselves as a people.”

Recently, I ran across an even more interesting survey item. The survey asked respondents simply to identify the head of state of Canada (not the person, the office). Easy, right? Well, apparently Canadians not only do not agree on who should be head of state, they don’t even agree about who — formally speaking — IS the head of state. Is it the Queen (25% say so)? The governor general (32%)? The prime minister (43%)? Really, the prime minister?

I take this as more evidence that Canada is the place to study constitutional design, which might explain why some of the best constitutional scholars hail from or reside there.

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Published on January 15, 2010
Author:          Filed under: Canada, hp, Zachary Elkins

Angola constitution coming soon

Press reports indicate that Angola’s parliament will adopt a new constitution in the new week, extending the rule of President Jose Eduardo Dos Santos, who has served since 1979. The constitution will replace the formally semi-presidential structure with a pure presidential system, replacing the prime minister with a vice president. It is seen as strengthening the presidency. The timetable for adoption of the constitution was hastened in response to last week’s attack on the Togolese football team in Cabinda.

Cabinda is a non-contiguous enclave rich in oil. A separatist movement has been fighting for independence for several decades, and violence has continued even after the broader Angolan civil war ended in 2002. One can thus see constitutional conflict as underpinning the attack on the football players–like other acts of terrorism, this attack will call attention to the situation there. The immediate result, however, appears to be a strengthening of the authoritarian hand that guides Angola.

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Published on January 14, 2010
Author:          Filed under: hp, Togo, Tom Ginsburg

“Allah” and “God” in Malaysia

On New Year’s eve, the Malaysian High Court reportedly ruled that the Catholic Church may lawfully use the term “Allah” to refer to “God.” The judgment is not yet available on the High Court’s website but useful reports are available at the Jurist, on the BBC, and in Time Magazine.
In the aftermath of the High Court’s judgment, Christian places of worship in Malaysia have been the target of at least six arson attacks. There have also been peaceful protests.
The High Court has since moved to calm the waters in the country, which has a Muslim majority. Just a few days ago, the High Court issued a stay of its earlier ruling, suspending the coming into force of its judgment pending the resolution of an appeal by the Attorney General to the higher Court of Appeal.
The Attorney General is quoted as describing this controversy as “a matter of national interest.” That it surely is. But this case should be of interest also to comparativists abroad because it will test the meaning of Article 3 of the Malaysian Constitution, which establishes Islam as the official state religion even as it preserves the freedom of religion for non-Muslims.
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Published on January 11, 2010
Author:          Filed under: hp, Malaysia, religion, Richard Albert

Kenya process continues

The constitution-making process in Kenya continues apace. The Committee of Experts has now submitted a revised harmonized draft to the parliament, which will then submit the document to a referendum. The revised draft retains the semi-presidential structure of the first draft, which has a directly-elected president and a prime minister. The Committee apparently believes that the semi-presidential system represents the best compromise between advocates for a pure presidential or parliamentary system. While comparative experience suggests this regime type may lead to downstream constitutional conflict, it seems to reflect a desire to retain the underlying political compromise between supporters of President Kibaki and Prime Minister Odinga.

A poll at the end of 2009, however, showed that a majority of Kenyans would vote against the draft. Respondents seem to be concerned about the power-sharing structure that the elites have compromised on.

Other changes in the latest draft include the elimination of a proposed system of regions that was not particularly well-developed in the first draft. Counties remain the basic unit of local governance, but the number has been reduced to the original 47 districts from 74 proposed in the first draft. There are a number of technical improvements in the draft, too, such as a mechanism for re-apportionment of county boundaries (Art. 220) and clarification of the term limits provisions, as well as a slight streamlining and reorganization of a bill of rights.

The draft, however, retains a number of unusual features. It has a separate constitutional court, but that courts decisions are apparently subject to appeal to the supreme court in all cases (the first draft had contemplated final decision in elections matters only). While the draft makes clear which court is superior, and thus avoids conflicts between the constitutional and supreme courts over that question, it is odd to have a “constitutional” court that in fact does not have the last word. Another oddity is that the prime minister is limited to ten total years in office. (No other democracies that we know of have term limits for prime ministers.)

Stay tuned for more as the draft moves along in the process.

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Published on January 9, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg

Popular Consultation in Sudan

Tom, you’re right to highlight Sudan as a possible “hot spot” for constitutional reform in 2010 (and beyond), but not necessarily in the context of “crisis.” This isn’t to say some sort of crisis is out of the question (or even unlikely), but it is not the only scenario in which meaningful constitutional reform might take place.

The two states of Southern Kordofan and Blue Nile are just now embarking on the CPA-mandated process of “popular consultation,” in which they are to ascertain the “will of the people” on “shortcomings in the constitutional, political, and administrative arrangements of the [CPA].” During 2010 both states plan to engage in intense broad-based grassroots consultations that will mirror other recent efforts at constitutional reform in Africa. (Just this week leaders of the two states were in Kenya speaking to officials from Kenya’s current and previous constitution-making exercises.)

Should the people of these two states decide “shortcomings” do in fact exist (a foregone conclusion if the process unfolds without undue manipulation or obstruction) new legal, administrative, and institutional arrangements are to be negotiated with Khartoum. While not explicitly stated, many believe the outcomes from these negotiations should be constitutionalized – either as amendments to the existing interim constitution or as part of a larger constitutional process.

While “popular consultation” envisions the two states remain part of the north – it provides a mechanism for them to negotiate wealth and power-sharing arrangements that could potentially remake northern Sudan into the type of federal state many believe critical to its sustainability. What’s more, this process is unlikely to end with Southern Kordofan and Blue Nile but instead could provide a model for other discontented areas of Sudan (most notably Darfur and the eastern states) to negotiate their own wealth and power-sharing arrangements.

While the eyes of most Sudan watchers will skip from the April 2010 elections straight to the January 2011 referendum – they will be missing a potentially critical and organic process unfolding in these two border states. Popular consultation is potentially important for the unifying and reconciling impact it could have on the states themselves, the changes it could produce in the relationship between the states and Khartoum, and the precedent it could set for other aggrieved areas in Sudan – all of which could impact Sudan’s constitution.

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Published on January 8, 2010
Author:          Filed under: constitutional change, consultation, federalism, hp, Jason Gluck, Sudan