Blog of the International Journal of Constitutional Law

Japan update: Kimigayo lawsuits fail again

The Tokyo District Court rejected an attempt by Tokyo schoolteachers to nullify the punishments they received for refusing to participate in ceremonies involving the national anthem. This is consistent with the earlier Sup Court decisions we noted here as well a more recent decision by the Supreme Court in July that rejected similar appeals from Tokyo and Kitakyushu. The analytic issue this raises is what the plaintiffs hope to gain through what is apparently futile litigation. And the answer clearly lies in the realm of the symbolic. Even a losing lawsuit helps draw attention to the issue, and also may provide some moral closure to the teachers who seek to exercise their rights of freedom of conscience. Still, it would be interesting to know of systematic research into the phenomenon of lawsuits certain to lose, in Japan and elsewhere.

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Published on July 29, 2011
Author:          Filed under: freedom of conscience, hp, Japan, religion, Tom Ginsburg

Senegal: will the Arab Spring travel South?

President Abdoulaye Wade of Senegal has been talking about modifying the Constitution to extend his term in office, joining a long series of African “democrats” who came in as reformers but found presidential trappings to be quite comfortable. Wade, who was a longtime opposition leader, was originally elected to a seven year term, renewable once, under the prior constitution in 2000. Once he came to office, he adopted a new constitution that reduced the term to five year beginning after his term was to be completed in 2007; but upon securing a second term, he engineered amendments to return the term to seven. Now, with elections planned this coming February, he has sought to change the constitution yet again to introduce an office of Vice-President (who some think he wishes his son to fill) and to lower the first round threshold for victory from 50 percent to 25 percent of the vote. He has also argued that, since his initial term came under the prior constitution, he is eligible to run for a second term under the current constitution. If he succeeds, he would be in office until 2019, when he will be at least 95 years old! (He is officially the same age as Robert Mugabe, though there are rumors that he is in fact older.)

Wade is unusual in that older leaders tend to be a bit less likely to engage in term limit reform, according to our research on the topic. And his timing may have been poor in the face of the Arab Spring. Wide protests in Dakar prompted him to withdraw some elements of the proposal, though he allegedly still plans to run in 2012. Stay tuned to see if the Arab Spring travels South…


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Published on July 29, 2011
Author:          Filed under: hp, Senegal, term limits, Tom Ginsburg

A reason to draft constitutions carefully?

On the lighter side of the news: according to this report, owing to a slight omission in the drafting of North Dakota’s constitution (namely, the omission of a requirement that state officials take an oath of office), it is questionable whether North Dakota is legally a state.

The report mentions the existence of a conflict between the federal and state constitutions but isn’t more specific than that. If there is such a problem, it would presumably stem from the requirement in Article VI that “all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution”.

For a more skeptical take, see this report instead.

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Published on July 15, 2011
Author:          Filed under: David Law, hp, North Dakota, state constitutions

Constitutional Court confirmation politics in Taiwan and Korea

– Dennis Tang instead of female judge who had questioned evidence re: eight-year-old’s consent in rape case
– Cho Yong, Lawyers for Democratic Change, false address
– retirement of Justice Cho Dae-Hyen, in background

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Published on July 10, 2011
Author:          Filed under: constitutional courts, David Law, hp, judicial appointments, South Korea, Taiwan

Thailand’s Constitutional Court to consider legality of ruling party

Following last week’s general elections in Thailand, the losing Democrat Party has asked Thailand’s Constitutional Court to dissolve the winning Pheu Thai party. Thailand’s Constitutional Court, like a number of other specialized constitutional courts (e.g., Germany, South Korea, Taiwan, Turkey), has the constitutional power and responsibility to rule upon the lawfulness of political parties (per Part 13, Section 68 of the 2007 Constitution). Pheu Thai is headed by the sister of Thaksin Shinawatra, who was deposed in a military coup in 2006. The coup leaders also adopted a new constitution and reconstituted the Constitutional Court, which proceeded to rule Thaksin Shinawatra’s People’s Power Party illegal and is the same institution that is now being asked to rule Shinawatra’s sister’s party illegal as well.
The constitutionalization of Thai political turmoil should come as no surprise to readers of this blog. As Tom put it in an earlier post, “to predict constitutional instability in Thailand is like predicting snow in Chicago in winter.”

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Published on July 10, 2011
Author:          Filed under: coup, David Law, hp, Thailand

Morocco Constitution Approved

Morocco’s new Constitution was overwhelmingly approved by voters in a referndum on Friday, followed by celebrations. As such, the Arab Spring (now Summer?) has its first (mostly) bloodless transition, from an absolute to a constitutional monarchy. Among other things, the new document recognizes Tamazight (the original language of pre-Arab North Africa) as an official language, reflecting an inclusive approach to the regions of the north. The constitution also adds a number of new rights.

The King’s appointment powers are now constrained, so that he must appoint as prime minister a member of the largest party in parliament. Still, the King retains many formal powers that can be used to influence subsequent developments including his role as commander in chief, head of the Council of Ministers and the Supreme Security Council. These features, as well as the lack of a consultative process of constitution-making, led many associated with the pro-democracy February 20th movement to reject the charter.

Clearly gradualism amd acquiesence is the strategy of the Moroccan monarchy, and initial signs are that the approach may work. The devil, of course, is in the details and the subsequent implementation. The text of the new document (in French) can be found here.

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Published on July 3, 2011
Author:          Filed under: Constitutional Monarchy, hp, Morocco, Tom Ginsburg

Supreme Court of Japan rejects national anthem claims

In a series of cases over this past month, each of the three benches of Japan’s Supreme Court ruled that it is constitutional for school principals to order teachers to stand and sing the national anthem (the Kimigayo) at school ceremonies. In doing so, the Court definitively rejected the claim that such requirements violated the freedom of thought and conscience guaranteed by Article 19 of the Constitution of Japan. The long-running dispute is the culmination of a decade of renewed focus on the national anthem, after the Diet passed the National Flag and Anthem Law in 1999. Since then, there has been a wave of local government requirements to teachers to stand and sing the Kimigayo at school enrollment and graduation ceremonies. Teachers who refused were subjected to discipline, including suspensions, salary cuts, and failure to rehire after mandatory retirements. Acoording to the government, some 1,239 teachers and school staff nationwide were disciplined or warned about failure to comply from 1999 to 2009.

The three cases had different rationales, but came to the same conclusion, squarely following a 2007 case in which the Court found it constitutional to require a teacher to play piano to accompany the kimigayo. In one of the cases this month, a group of Tokyo teachers disobeyed an order to stand during the national anthem between 2003 and 2005, and were subsequently not rehired after retirement (as was customary for staff in good standing). The teachers had won a judgement at the District Court, but lost at the Tokyo High Court. Notable in this case was the dissent by Justice Koji Miyakawa, a former practicing lawyer, who argued for a kind of strict scrutiny of the administrative decision. The majority found that, although there had been some infringement on freedom of thought and conscience, it was reasonable given the “necessity and rationality” of the obligation.

In a concurring opinion to the third Petty Bench decision, the presiding Justice cited international sources: “In the international community, it is common sense that people should pay respect to other nations’ national flags and anthems. For [children] to acquire this sentiment, it is necessary [to learn] respect for their own country’s national flag and anthem first.” This last point strikes me as a thin and weak rationalization. Surely there is no international consensus on this point, and we have many examples of people disrespecting other countries flags.

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Published on June 24, 2011
Author:          Filed under: hp, Japan, religion, Supreme Court of Japan, Tom Ginsburg

New Hungary Constitution: New Opinions

Our contributor Andrew Arato, along with other leading academics, submitted an amicus brief to the Venice Commission concerning the new Constitution of Hungary. It is in many ways a devastating critique of the new document on both substantive and procedural grounds.

The Venice Commission itself released an Opinion on the Constitution earlier this week, arguing that the document puts “the principle of democracy itself at risk.” I find it interesting that the Commission critiqued the Hungarians for its choices about specificity, that is, which issues to leave general and which to provide more detail. In particular, they find that there are too many “cardinal laws” (meaning organic laws requiring a supermajority) requied in the constitution. From paragraph 24 of the Commission Report: “there are issues on which the Constitution should arguably be more specific. These include for example the judiciary. On the other hand, there are issues which should/could have been left to ordinary legislation and majoritarian politics, such as family legislation or social and taxation policy. The Venice Commission considers that parliaments should be able to act in a flexible manner in order to adapt to new framework conditions and face new challenges within society. Functionality of a democratic system is rooted in its permanent ability to change. The more policy issues are transferred beyond the powers of simple majority, the less significance will future elections have and the more possibilities does a two-third majority have of cementing its political preferences and the country’s legal order…. When not only the fundamental principles but also very specific and “detailed rules” on certain issues will be enacted in cardinal laws, the principle of democracy itself is at risk.”

I am not sure I agree with this particular critique by the Commission. There is a certain tension between the scholars’ critique of the current constitution, adopted by a two-thirds majority of parliament, as reflecting a temporal and limited majority, and the concern that the two-thirds requirement for cardinal laws reflects too much entrenchment. More broadly, I am not sure that one can specifcy ex ante the normatively proper domain of entrenchment for all socieites. The gravest issues raised by the Hungarian document are not that it disempowers the legislature, but rather that it strengthens it by weakening the judiciary.


For more comment and documentation see the LAPA website here.

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Published on June 23, 2011
Author:          Filed under: Andrew Arato, constitutional design, hp, Hungary, Tom Ginsburg

Morocco Quiety Reforms Constitution

Without the fanfare (or violence) of Egypt and Tunisia, it seems the Arab Spring is leading to real reform in Morocco. A good summary of the constitutional changes proposed by the King. To be put to national referendum July 1.

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Published on June 21, 2011
Author:          Filed under: constitutional amendment, constitutional change, hp, Jason Gluck

South African Threats to Freedom of Expression

South African Professor of Law Pierre de Vos has an excellent blog posting on a frightening piece of legislation there seeking to ensure many South African government-connected institutions classify or prevent the release of documents that have even the most tangential relationship to national security. Unfortunately, this is just another example of the South African government not demonstrating an appreciation for the importance of transparency and for punishing corruption. It also probably violates the Constitution’s provision on freedom of expression. Hopefully civil society groups can continue to fight such efforts with some success.

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Published on June 20, 2011
Author:          Filed under: hp, Mark Kende