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I·CONnect

Blog of the International Journal of Constitutional Law

Electoral Politics and Turkey’s New Constitution

On Sunday, June 12, 2011, Turkish voters headed to the ballot boxes to cast their votes in parliamentary elections. According to preliminary results, the incumbent Islamist-leaning Adalet ve Kalkinma Partisi (AKP) (Justice and Development Party) comfortably won a third consecutive term in office, obtaining 49.9% of the popular vote and 326 of the 550 seats in the Parliament.

AKP’s electoral victory was widely expected. But the question remained whether AKP would obtain the requisite supermajority in the Parliament to unilaterally draft and ratify a new Constitution. During the campaign, AKP steadfastly committed itself to drawing up a new Constitution to replace Turkey’s 1982 Constitution, which was drafted following a military coup. Many secularists in Turkey shared AKP’s commitment to scrap the 1982 Constitution, which is viewed among many as a blemish on Turkey’s democracy, and draft a new, more democratic Constitution. But the secularists feared that AKP might use this opportunity to alter, among other things, the theoretically non-amendable constitutional provisions that protect the nation’s secular regime and replace Turkey’s parliamentary system with a presidential one, for which Prime Minister Recep Tayyip Erdogan had publicly voiced his support.

The Turkish Constitution may be amended in one of two ways. If the new Constitution obtains approval by a two-thirds majority in the Parliament (367 seats), the Constitution may be ratified without the need for a popular referendum. If the Constitution is not approved by a two-thirds majority, it could still be submitted for ratification by a popular referendum if approved by a three-fifths majority (330 seats).

The preliminary tally of 326 seats falls short of the supermajority that AKP needed to unilaterally ratify the new Constitution in the Parliament. AKP will thus need the cooperation of opposition parties to rewrite the Constitution. This need for collaboration was apparent in Prime Minister Erdogan’s post-election victory speech. During the campaign, Mr. Erdogan had stated that he “will not waste time” by consulting with opposition parties in drafting the new Constitution. In his victory speech, he significantly dialed down his pre-election rhetoric and adopted a more conciliatory tone. In devising the new Constitution, Mr. Erdogan proclaimed, he would “embrace” the opposition parties and consult with all facets of society, including political parties, civil society organizations, and academics. He promised a Constitution that would appeal to all 74 million Turkish citizens.

Stay tuned for new developments in the upcoming months as Turkey begins the process of drafting its new Constitution.

— Ozan Varol, Chicago-Kent College of Law

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Published on June 14, 2011
Author:          Filed under: hp, Turkey
 

South Sudan consultation wrapping up

Amid continuing clashes in the disputed region of Abyei, the government of South Sudan is concluding a two-day public discussion of the Transitional Constitution, which will come into effect with the official birth of the state next month. The draft has been criticized by one political group, the Sudan People’s Liberation Movement-Democratic Change, for failing to deliver a credible federal system and for concentrating too much authority in the hands of the presidency.

The participation exercise in the South Sudan reflects a general normative trend in constitutional design. While there is widespread agreement that participation is important, the precise modalities vary and we do not have much concrete analysis of whether participation enhances the quality of the ultimate constitution. In an article in the Temple Law Review a couple years ago, Zach Elkins, Justin Blount and I found that more participatory constitutions tended to be associated with a higher number of elective offices, and more provisions for direct democracy, but there is much room for further analysis.

After the period of public consultation ends today, the Legislative Assembly will modify the draft constitution, which will be put to a referendum before its ultimate promulgation in July.

–TG

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Published on June 8, 2011
Author:          Filed under: hp, South Sudan, Tom Ginsburg
 

A Forthcoming Rights Revolution in Mexico?

Two important constitutional reforms have been just approved in Mexico. The first reform transforms the human rights regime in the country. Among other things, it recognizes as rights not only those explicitly included in the constitution but also all rights present in international treaties ratified by the country. The reform also gives new powers to the Ombudsman office. The second one is a reform to the amparo suit, the individual instrument of constitutional complaints that is the main tool for rights protection. This reform expands the accessibility, scope, and effectiveness of the amparo. Contrary to the old amparo that was accessible only for someone with a “juridical interest” in a case (someone directly affected by a public authority), the new amparo will be accessible for anyone with a “legitimate interest”. Contrary to the old amparo that was useful for challenging only governmental acts that allegedly violate one of the “constitutional guarantees” present in the first twenty nine articles of the constitution, the new amparo will be useful for challenging government acts that violate any human right recognized by the constitution or by international treaties. Last but not least, contrary to the old amparo that produced only inter partes effects, decisions in new amparo cases will be able to produce general or erga omnes effects.

It is commendable that Mexican authorities finally recognized that the amparo, once a novelty in the judicial landscape of the region, had fallen behind instruments in other countries that were initially created to emulate it but were also more successfully adapted to changing circumstances. It is also important that human rights become the constitutionally guiding principle of all activity of the Mexican government. However, whether these reforms actually produce a rights revolution in the country remains to be seen. It is true that at least in theoretical terms the reforms have this potential: Studies on Costa Rica and Colombia (e.g. Wilson and Rodríguez Cordero, 2006) argue that expanding access produces a rights revolution even in countries lacking a strong “support structure” (Epp 1998). It will thus be interesting to see how creatively and extensively litigants use the new amparo and how expansively judges interpret the “legitimate interest” standing in these suits. Of course, it will also be interesting to see how the government reacts to potential judicial decisions expanding rights.

JRF

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Published on June 3, 2011
Author:          Filed under: constitutional amendment, hp, Julio Rios-Figueroa, Latin America, Mexico
 

Ecuador’s Courts; U.S. Constitutionalism

This post addresses two very distinct but interesting issues. ECUADOR: First, there is a fascinating article in the New York Times regarding the problems with Ecuador’s legal system. It deals with Chevron’s attempt to resist enforcement of a large judgment by attacking the nation’s legal system. Without addressing Chevron’s underlying conduct, what is especially troubling are the examples given of removal of judges by Ecuadorean political leaders. http://www.nytimes.com/gwire/2011/05/23/23greenwire-chevron-allegations-about-justice-system-strike-5160.html The irony is that Ecuadorean officials must now defend their legal system even though they acknowledge it is quite flawed and are trying to reform it at home. The other irony is that Chevron apparently sought to have the litigation in Ecuador but now is questioning the forum. Consistency is the hobgoblin of little (legal?) minds…

US: On another note, for those interested in a clever article asserting that both conservative and liberal constitutional theory in the US is converging, check out Professor James Ryan’s piece “Laying Claim to the Constitution: The Promise of New Constitutionalism.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1840704 I am skeptical of the author’s thesis that this convergence can actually help progressives, as I think the developments he cites show that conservative originalism is winning. He further argues that this convergence involves an agreement among scholars on the fact that judges should look at text, history, and constitutional structure in resolving cases. Yet that doesn’t seem like either textualism or originalism to me, especially since he also notes the importance of precedent. He concede that, at the margins, judicial discretion exists but, to me, those margins are frequently the most important issues. Nonetheless it’s a great introduction to US constitutional theory, especially for those from other countries. About the only things he leaves out are popular constitutionalism, and critical theory approaches.

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Published on May 24, 2011
Author:          Filed under: hp, Mark Kende
 

Discipline-Flourishing Constitutionalism: An Update on Myanmar’s Quasi-Constitutionalized Politics

When Tom Ginsburg and Zachary Elkins first released their Comparative Constitutions Project data, Myanmar (formerly known as Burma)* was one of only two countries that lacked any sort of constitutional document (the other being the U.K.). Since 1962, the country had been ruled by a military regime. In 1988, a younger generation of officers seized power and suspended the 1974 Constitution. The junta held national elections in May 1990, but reneged when Noble Laureate Aung San Suu Kyi’s National League for Democracy (NLD) won over 80% of the seats. Rather than recognize the results, the junta announced that the election winners would form a National Convention to draft a new constitution. However, when the convention finally met in January 1993, only 99 of its 702 delegates had been elected – the rest were appointed by the junta to “represent” workers, intellectuals, and ethnic minorities. Convention delegates were presented with a completed constitutional draft and banned from publicly criticizing it. After a few years, the NLD boycotted the proceedings entirely.

In late 2007, the convention finally released a draft of the constitution, incidentally making Myanmar’s constitutional drafting process the second longest in history (Kenya has the longest). The government scheduled a referendum on the constitution for May 10, 2008. According to official figures, 98.12% of voters turned out and 92.48% voted in favor of the constitution – a suspicious tally, especially so soon after a category 5 storm, Cyclone Nargis, devastated lower Myanmar. Last November’s election for the parliament was only marginally more credible. Opposition groups alleged that the pro-junta Union Solidarity and Development Party (USDP) relied upon “advanced ballots” and widespread vote buying to tip the balance in its favor. In the end, the USDP won 76.5% of all contested seats.

Much of the criticism surrounding the 2008 Constitution has focused on the role of the Myanmar Armed Forces (tatmadaw). The military appoints a quarter of the MPs in the state and national legislatures. The tatmadaw commander-in-chief is a particularly powerful figure. While the president can appoint the commander-in-chief, the constitution provides no mechanism through which to remove him. The constitution allows the tatmadaw to “independently administer and adjudicate” all matters pertaining to the armed forces, potentially removing it from any legislative or judicial oversight. Moreover, the president is required to consult with the commander-in-chief regarding appointments to the Ministries of Defense, Home Affairs, and Border Affairs.

While the military’s power under the constitution is worrisome, given Myanmar’s history it was certainly not unexpected. From the beginning, it has been clear that the tatmadaw would refuse to hand power over to liberal democrats. The constitution itself claims it will produce a “discipline-flourishing democracy” (Chapter I, § 6(d)), not a liberal democracy. Even so, Myanmar’s new government is not simply a reincarnation of the military regime in civilian guise. Rather, the constitution distributes power across several new constitutional institutions.

Perhaps most surprisingly, the 2008 Constitution is the first in Myanmar’s history to create state-level governments (even the democratic 1947 Constitution had established a unitary state). This alone represents a stark break from the past. Myanmar, one of the most ethnically diverse countries in the world, has been plagued by regional rebellions. Almost immediately after Myanmar declared independence in 1948, the Karen and Communist insurgents waged war on the central government and nearly overran the capital. Several of these groups succeeded in carving out de facto enclaves along Myanmar’s borders. The military has taken advantage of the situation and raised the threat of “national disintegration” to justify its continued hold on power. To senior military officers, the word “federalism” remains anathema.

Yet, given the reality, some level of federalism proved unavoidable. The constitution divides jurisdiction between the Union Legislature (Pyihtaungsu Hluttaw) and over 15 locally elected state-level governments.** The Hluttaw retains authority over defense, foreign affairs, and judicial administration, as well as some local matters such as education and tourism. Moreover, the budget process is highly centralized. However, the states do possess jurisdiction over local finance, commercial activities, and agriculture, as well as local projects. More importantly, the states might just provide a unique forum for constitutional dialogue about ethnic issues. In last November’s election, the USDP won an outright majority in only one of the seven “ethnic” states – ethnic parties, sometimes pro-junta, won the remainder. This guarantees that ethnic issues will be raised locally, even if not nationally.

Also noteworthy, the 2008 Constitution does not provide for a strong executive. Than Shwe, the general who had ruled Myanmar since 1992, officially retired earlier this spring. One might suspect that the president would fill the power vacuum. Under the constitution, the Pyihtaungsu Hluttaw forms an electoral college to appoint the new president. The president also serves as chairman of the National Defense and Security Council, which has the authority to declare a state of emergency. However, both institutionally and personally the presidency is surprisingly weak. The president lacks any constitutional authority to veto legislation – he can only provide non-binding comments. Moreover, the general elected to serve as president, Thein Sein, seems to lack a strong power base of his own

The constitution also establishes relatively powerful leaders within the Hluttaw. MPs in the People’s chamber (Pyithu Hluttaw) and the Nationalities chamber (Amyotha Hluttaw) each elect a speaker. These speakers supervise legislative sessions and will likely play an important role in shaping the legislative agenda. More ominously, the constitution requires that the speaker approve the arrest of any MP, providing him with valuable leverage. One powerful general widely touted as Than Shwe’s “heir,” Thura Shwe Mann, surprisingly ended up as the Pyithu Hluttaw Speaker rather than as president or commander-in-chief.

The lack of a clear center of power was not an oversight. Political analysts suspect Than Shwe deliberately diffused power under the constitution as an insurance mechanism. Having arrested two of his predecessors, Than Shwe appreciates the risks of retirement. By creating competing centers of constitutional power, it seems he believes he can keep the political elite dependent upon him for guidance. More importantly, with several veto players, the constitution should prevent the new government from uniting against him. It is probably no coincidence that the ambitious Shwe Mann and Tin Aung Myint Oo were relegated to serve as Pyithu Hluttaw Speaker and Vice President, respectively, while President Thein Sein and Commander-in-Chief Min Aung Hlaing are regarded as loyal to the former senior general. Many politicos in Myanmar predict that the 2015 elections will pit these four men in a contest for the presidency.

Finally, the 2008 Constitution reintroduces constitutional review after a hiatus of 40 years. During the 1950s, the military complained that judicial activism was hampering its counterinsurgency effort. Revealingly, in 2007 then-Prime Minister Thein Sein advised an audience of judges that “administrative and judicial systems cannot operate separately but need to be in harmony to be able to protect public interests.” The new Constitutional Tribunal appears designed to avoid repeating the “mistake” of its activist predecessor. The president and speakers of both chambers of the Pyihtaungsu Hluttaw each nominate three justices to the bench. The justices serve only for five years. Moreover, the president or a quarter of either Hluttaw chamber can initiate impeachment proceedings against justices for “high treason,” “misconduct,” or simply “inefficient discharge of duties.”

If not for love of judicial activism, Myanmar’s constitutional drafters must have had some ulterior motivation for creating this new institution. The constitution grants the tribunal jurisdiction over inter-branch and inter-state disputes, although only government officials can submit petitions directly. As such, it seems the bulk of the tribunal’s early caseload will consist of jurisdictional disputes between the different branches and layers of the new regime. Because justices are appointed by the Union government and subject to such short terms, they will be inclined to invalidate any troublesome state laws that infringe upon elite preferences. In short, constitutional review might provide the military elite with an additional mechanism to ensure that the new system does not stray far from its vision of a “discipline-flourishing” constitutionalism.***

Notes
* In 1988, the military junta changed the country’s official English-language name from “Burma” to “Myanmar,” nominally because the latter is a better translation. However, many who do not accept the military’s legitimacy refuse to acknowledge the change. Throughout this article, I use “Myanmar” not to suggest any political sympathies, but rather because that is how the country’s name appears in the 2008 Constitution.
** Technically, there are 7 States, 7 Regions, the Naypyitaw capital territory, and several self-administered zones. The States tend to fall along the country’s periphery and contain most of the country’s ethnic minorities, while the Regions cover the central dry zone. The self-administered zones are essentially capitulations to several ethnic insurgent militias that have already carved out spheres of autonomy from the state.
*** I refer readers to my article in the latest issue of the Australian Journal of Asian Law for further analysis of Myanmar’s constitution and the Constitutional Tribunal

–Dominic J. Nardi, Jr. is a Ph.D. student in the University of Michigan Political Science Department. He has a J.D. from Georgetown University Law Center and an M.A. in Southeast Asian Studies from Johns Hopkins SAIS.

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Published on May 20, 2011
Author:          Filed under: authoritarianism, Dominic Nardi, hp, Myanmar
 

In Ecuador, Autocracy by Referendum

A frustrated Simon Bolivar is said to have once complained of his empire that Colombia was a university, Venezuela a barracks, and Ecuador a convent. This assessment seemed surprisingly prescient last week, with a Colombian education minister appointed emergency mayor of Bogota, Venezuela accused by the IISS of arming FARC rebels, and Ecuadorians passing a ten-question constitutional referendum which, among other things, set up a “Regulatory Council” to prohibit “violent, sexual, or discriminating” content in the printed news, radio, and television.

The last decade has witnessed the rise of autocracy by referendum in Latin America. Ecuador’s Correa has followed the lead of his political allies Venezuela’s Hugo Chavez, and Bolivia’s Evo Morales, in using personal popularity to undermine institutional independence and limit personal freedoms. Yet while the latter factor may raise more eyebrows, and indeed the potential censorship ramifications of the new Regulatory Council’s authority have received a fair amount of international press coverage, the former is significantly more destructive in that it is the hardest to undo.

Under the new constitutional restructuring, the current members of the Ecuadorian Judicial Council will be dismissed and replaced with a three member “Transition Council” charged with reforming the entire judicial system over the next 18 months. President Correa will personally appoint one of the three transitional judges. The servile Ecuatorian congress, dominated by his party, will appoint another.The last spot will be chosen by the “Transparency and Social Control” authority; an executive appendage created when Correa had the Ecuadorian Constitution entirely rewritten in 2008.

So why amend the judicial structure of your own constitution a mere three years after its ratification?

Rumor has it that the 2010 police rebellion against Correa, during which he was temporarily held captive, left the self-styled “Warrior President” nervous. Through the resonance of his anti-establishment message in a country with a large population of rural poor, Correa can win referendum votes. However, as Hugo Chavez learned last October, personal popularity can fall short of securing a parliamentary election for one’s party and Ecuador is due for a legislative election next year. Chavez was able to overcome securing less than half of the popular vote through considerable gerrymandering and having the lame-duck National Assembly grant him emergency authority, ostensibly for the duration of the next congressional session. Contingency hijinks of this nature often require Supreme Court complicity, however, and the fate of Honduras’ Manuel Zelaya in 2009 provided a vivid example of what an independent Judiciary can accomplish when it bares its teeth… A result which was likely not lost on Rafael Correa.

The tragedy in cases such as this one, is that institutions take time to achieve relevance in a new democracy. Concrete institutional relationships must replace easily corrupted personal ones, and roles must be carefully defined within the spectrum of governance or else much authority is deferred to the presidency by default. Constitutional shenanigans like the one in Ecuador effectively reset the clock on developing this structured independence, and reinforce a self-perpetuating cycle of governmental adhocracy and presidential control.

To draw on an example from American history, In 1832, Andrew Jackson ignored a ruling of the US Supreme Court so as to allow the State of Georgia to expel the Cherokee Tribe from their land. In doing, so he is supposed to have quipped: “(Chief Justice) Marshall has made his decision, now let him enforce it.” If, after 50 years of institutional history, the US Supreme Court could not keep a populist president from doing exactly what he wanted, what hope is there in Latin America where no non-presidential institution is given leave to exist for anywhere near that long?

Daniel Lansberg-Rodriguez, May, 2011

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Published on May 19, 2011
Author:          Filed under: Bolivia, Daniel Lansberg-Rodriguez, Ecuador, honduras, venezuela
 

The Indian Supreme Court Headlines the WSJ

Today’s edition of the Wall Street Journal profiles the Indian Supreme Court under the headline of “In India, the Supreme Court Takes an Activist Role.”

As the article notes, however, it is an understatement to call the Indian Supreme Court “activist.” It is much more accurate, according to the author, to call it “hyperactivist.”

Whether or not one finds normative virtue in a powerful judiciary, it is hard to disagree as a descriptive matter with that characterization of the Indian Supreme Court. Indeed, the current Chief Justice has described the Court as a “superlegislature,” as I observed in one of my recent posts.

Why is the Court so involved policy making and governance? According to the author, “there is growing frustration among millions of Indians that the government is failing to crack down on graft, ensure the middle class and poor get their fair share of the fruits of growth, and do away with outdated social strictures.” As a result, “the Supreme Court has taken upon itself the task of trying to solve many of those problems.”

Interesting. The structure and administration of constitutional government in India engages a number of first principles in constitutional theory, namely the relative institutional competence of courts and legislatures, the strictures and limits of the separation of powers, and the consequences of what Mark Tushnet calls democratic debilitation and of what my fellow blogger Ran Hirschl refers to as juristocracy.

This is an article well worth reading.

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Published on May 16, 2011
Author:          Filed under: hp, Richard Albert, Supreme Court of India
 

The Future of the Canadian Supreme Court-Part II

We may soon have the chance to see how Richard Albert’s interesting prognostications regarding the future of the Canadian Supreme Court play out. Professor Albert’s recent predictions on this blog concerning the possibility that Prime Minister Stephen Harper may bring an unprecedented dose of American-style conservatism to the Court take on new urgency and force, now that Harper has secured a majority government and, above all, with today’s announcement that Justices Binnie and Charron will be retiring. The Globe and Mail, for one, has stacked its list of likely candidates with a number of conservative-leaning jurists, in the widespread expectation that Harper will use this opportunity to tilt the Court to the right. Justice Binnie’s replacement in particular may be pivotal given his reputation as both an intellectual leader and a centrist. The Globe’s coverage is here.

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Published on May 13, 2011
Author:          Filed under: David Law, hp, judicial appointments, Supreme Court of Canada
 

Brazil’s Supreme Federal Court rules for same-sex civil unions

Brazil’s Supreme Federal Court has ruled that partners in same-sex civil unions are constitutionally entitled to the same rights as married persons. The constitutional provision on which it relied requires the state to “promote the good of everyone, without distinction of origin, race, sex, color, age and other forms of discrimination.” Although an English translation of the decision appears hard to come by (for now), the Court’s official press release is available here, and Jurist has a synopsis of the case – along with a brief overview of recent global developments in this area (including the decidedly gay-unfriendly impact of Hungary’s new constitution) – here.

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Published on May 7, 2011
Author:          Filed under: Brazil, civil unions, David Law, gay marriage, hp
 

Constitutional Reforms in Ecuador

Tomorrow, Saturday May 7th 2011, Ecuadorean citizens will vote on a referendum to change their constitution. They will vote ‘yes’ or ‘no’ on ten questions proposed by President Rafael Correa. Positive answers to the first five questions imply an automatic constitutional amendment, whereas positive answers to the rest of the questions would mandate the national assembly to reform existing laws or to legislate certain issues. Interestingly, the first set of questions includes important reforms to the judicial system, limits to due process rights in criminal cases, and potential limits to the freedom of the press while the second set of questions asks citizens to approve restrictions on animal suffering, gambling, and illicit enrichment. A simple majority of the people who show up to vote tomorrow is enough to make a decision, given that the actual turnout is at least 8% of the people registered to vote (Constitution of 2008, Art. 441).

Regarding the judicial system, president Correa proposes to dismiss the current members of the judicial council and appoint a three-member “transitory council” that will be in charge of “reforming, in the following 18 months, the entire justice system that is completely broken” (president Correa’s words). One of the three members of such transitory council would be appointed directly by the president, the second by the national assembly (where the president’s party has a majority of seats), and the third by the “Transparency and Social Control” organ, which is very close to the president’s interests.

The other topic that critics have raised regarding the referendum is the limitation to entrepreneurs in the communications business to have investments outside the sector. This restriction, they argue, would increase the dependence of the media on government advertisements. Moreover, question number nine of the referendum asks Ecuadoreans whether they agree on creating a “Regulatory Council” that would prohibit “violate, sexual, or discriminating” content in the printed news, radio, and television.

Opinion polls predict that Rafael Correa, I mean the ‘yes’, will win tomorrow.

JRF

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Published on May 6, 2011
Author:          Filed under: constitutional amendment, Ecuador, hp, Julio Rios-Figueroa, Latin America