Blog of the International Journal of Constitutional Law

Summer Travel and Comparative Constitutional Law

When they travel on vacation during the summer, people bring all sorts of things with them—-usually interesting things. They might pack a novel they have long wanted to read. Perhaps, as one of my friends now does, they bring materials with them to help them write a screenplay they have long wanted to compose.

I always pack the constitution of the country where I will be taking my vacation. I think reading the entire constitution of another country from time to time can be enormously interesting and helpful, to professors of comparative constitutional law and domestic constitutional law alike. It not only makes the country you are visiting more interesting, but also can highlight some larger trends in comparative constitutional law.

Last month, I traveled to Morocco, and so I read the constitution of Morocco. I will post a few items over the next week related to this constitution, which highlighted for me several larger things of note:

(1) Noah Feldman has written about this in the context of the Middle East—-and we now have the raw material thanks to the Elkins, Ginsburg and Melton database—-but it is about time that someone writes a major book about the growing trend in the past several decades to create constitutions that both permit the free exercise of religion and officially establish a state religion. This relationship seems anathema to scholars of American constitutional law, and even those foreign constitutions that American scholars seem to know either establish a secular regime (France, Turkey) or do not permit free exercise at all (less free places). But it strikes me that a successful and interesting development in the past generation has been the coupling of a Free Exercise Clause in a constitution coupled with the opposite of an Establishment Clause. The Constitution of Morocco is an excellent example of this. The Constitution of Morocco states in its Premable that it is “[a]n Islamic . . . state” and in its Article 6 that “Islam shall be the state religion.” but also in Article 6 that “[t]he state shall guarantee freedom of worship for all.”

The social realities created by both a free exercise clause and a state establishment of religion are complicated, but seem to match the social reality of a world of increasing constitutional liberty and increasing religiosity. Individual citizens feel free to practice religion free from governmental coercion, but the combination of population patterns (which mean that people of like religious tend to live near and in the same country with other people of the same religion) and an increasingly religious world (meaning that religious homogeneity is socially prominent) mean that there is a constitution that matches the social reality: religious liberty but the endorsement of religion (if not explicitly by the state, at least implicitly perhaps because of the dominance of a particular religion in a particular nation-state).

Morocco did not feel like a religiously diverse country. I saw no crosses and no Jewish stars while there. But there was also no sense of religious coercion, and I felt very comfortable talking to Muslim residents about my non-Muslim religious background. There was the social reality–matched by the constitutional language–of religious liberty.

On the flip side, it felt like a country with an established Muslim religion. That is in part because of demographics—-the population is 99 percent Muslim. The realities of establishing a state religion in a country like Morocco: without an overwhelmingly powerful government with massive extractive and regulative capacities, even a formally established religion might not mean much if the government does not have the capacity to do much with that formal establishment of a religion. But it was more than that. There were places in Morocco where it was clear that Islam and the state intersected each other rather than avoiding each other.


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Published on July 6, 2010
Author:          Filed under: Uncategorized

Extraterritorial application of European human rights law to military action

The United Kingdom’s new Supreme Court has just rejected a claim by the mother of a deceased military serviceman that her son’s death while on duty in Iraq, pursuant to alleged negligence on the part of his superiors, violated the European Convention on Human Rights (ECHR). The British court held that the ECHR did not apply. The Smith family now plans to appeal to the European Court of Human Rights (ECtHR) in Strasbourg. Two noteworthy elements of the Smith case are, of course, (1) the effort to apply ECHR rights extraterritorially, and (2) the effort to regulate wartime conduct by a national government in particular. The New York Times has the story.

Here’s a thought experiment: try to imagine the U.S. Supreme Court, or any court, ever holding that international human rights law renders the United States liable for the death of its military personnel overseas or, indeed, for any kind of wartime conduct overseas.

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German Right to Die Case and Supreme Court Confirmation

As has been reported in the press, the Federal Constitutional Court of Germany recently issued a ruling making it easier for relatives and others to allow loved ones to die in certain situations. Given the power of the right to dignity and the right to life under the Basic Law, this is significant both there and abroad. The Court reversed the conviction of a lawyer who apparently counseled a client regarding the question of deactivating the intravenous tube of a loved one in a persistent vegetative state. Meanwhile, Solicitor General Elena Kagan is being questioned vigorously in her U.S. Supreme Court confirmation hearing about whether she would look to foreign law in constitutional matters. The German case shows the advantages and dangers. On the one hand, it suggests a growing international consensus regarding the importance of individual autonomy on such matters (the PVS woman had earlier expressed a desire to not be kept alive if such a thing happened). On the other hand, the German jurisprudential and cultural context is quite different so any comparisons must be cautious. Kagan has implied she is not hostile to foreign law, but has tried to downplay the issue.

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Published on June 29, 2010
Author:          Filed under: hp, Mark Kende

and Kyrgyz Republic passes the Constitution

Vote-counting is well under way in Kyrgyzstan. With 90% of precints counted, news reports indicate over 90% support for the new Constitution. No doubt this will be seen as a vote of confidence in the interim Otunbayeva government. Russia’s President Medvedev expressed skepticism about the ability of the parliamentary system to resolve Krgyzstan’s difficulties, including the ethnic cleansing of the Uzbeks in the south. I suppose the conventional wisdom would likely go the other way, emphasizing the ability of a parliamentary model to provide some representation for the minority group, though as with many such claims, much depends in the end on the party system.


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Published on June 28, 2010
Author:          Filed under: hp, Kyrgyzstan, Tom Ginsburg

Embattled Government of Kyrgyzstan seeks referendum for June 27

In early April 2010 bloody riots rocked the Kyrgyz capital of Bishkek in response to high utility costs and brutal levels of perceived corruption. For nearly a week, thousands of protesters took to the streets in a bloody clash which reportedly killed at least eighty people and wounded nearly 500 more. During the chaos, President Kurmanev Bakiyev an autocrat with deep ties to Russia, was overthrown and fled the country upon which an interim government led by Roza Otubayeva seized power.

Yet Otubayeva’s hold on the country – tenuous from the start – has unraveled further in the wake of ethnic violence in the region of Osh, a traditional stronghold of Bakiyev support. Earlier this month members of the region’s sizeable Uzbek minority were targeted by ethnic Kyrgyz in a humanitarian crisis which has seen hundreds killed thousands injured and nearly 50,000 people displaced. At present, the violence seems to have subsided, although Osh remains in a state of emergency and government control over the region is practically nonexistent.

The Otubayeva administration, lacking a democratic mandate, is now seeking one through constitutional referendum. The proposed constitution significantly weakens the office of the presidency while strengthening the legislature and the office of the prime ministership. Yet while the text of the constitution itself might limit Otubayeva’s power, a majority approval of the document through plebiscite would enervate her exhausted administration, pave the way for international recognition of the interim government and allow for tougher measures in reasserting national control over Osh. Even if the reform fails to pass, the mere act of having undertaken a successful referendum so soon after widespread chaos and disorder, and of accepting it’s results in a democratic fashion, would likely strengthen the government’s position at least as a placeholder until new elections can be held in December 2011.

An old cliché which has made the rounds from Emerson to Aerosmith tells us to value the journey over the destination. The Kyrgyz example illustrates yet again that the details of the proposed constitution are far less important than the struggle to implement it.

–Daniel Lansberg-Rodriguez, Alcaldia de Sucre, Caracas

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Published on June 27, 2010
Author:          Filed under: Daniel Lansberg-Rodriguez, hp, Kyrgyzstan

A Supreme Court vs. Religious Authorities Showdown in Israel

In August 2009 I wrote here about the Israeli Supreme Court ruling that involved a clash between the right to sectarian autonomy in education, and equality rights. A girls-only publicly-funded religious school introduced separation between an educational stream for Ashkenazi Hasidic community girls, and a different stream for Sephardic (Mizrahi) girls. The school’s main claim has been that authentic differences in culture and tradition between the Hasidic community and Sephardic community justify the segregation.

In a nutshell, the Court held that although the right to cultural pluralism in education is recognized by Israeli law, religious affiliation as a basis for autonomous schooling is not an absolute right when it collides with the overarching right to equality. It found the two-stream policy unjustifiably discriminatory, based predominantly on ethnicity, and essentially masking a reality of a two-tier schooling system, with “elite” education provided in the school’s Hasidic stream as opposed to a more “blue collar” one in the other. In some respects then, this case resembles the UKSC ruling concerning an apparently discriminatory admission criteria in a North London Jewish school. (The UKSC cited the Israeli Supreme Court ruling in its Dec. 2009 decision). In a broader sense, it reminds us of the debate in India concerning personal status law. Hovering over these cases is the larger question of unified state authority versus autonomus religious authority, and the applicability of general constitutional norms to matters of religious tradition.

At any rate, nearly a year after the decision was rendered, school authorities and the Hasidic families whose daughters attend the “elite” stream, still refuse to accept the Court ruling and continue to defy follow-up Court orders for abolishing the ethnicity-based segregation. They implicitly question the Sephardic girls’ “truth to Torah” way of life, dress code, and so on. Initially, the Supreme Court imposed hefty fines for each day of non-compliance. As defiance and contempt of court orders continued, imprisonment of recalcitrant fathers ensued (ethnic discrimination aside, mothers have been left out of it in order to take care of their children . . .). This brought about mass demonstrations by Hasidic Jews, one was estimated at over 100,000 participants. Religious leaders went on to question state authority, to vilify the Supreme Court, and describe its judges as apostates. Most political leaders remain vague or mum as the coalition government depends on religious parties’ support. The stand-off is about to enter its third week, with dozens of Hasidic parents behind bars and Supreme Court judges insist that no concessions are expected unless the 2009 decision is implemented in full. The incoming Jewish Sabbath provides all involved parties with a God-given time-out for reconsideration.


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Published on June 25, 2010
Author:          Filed under: Israel, Ran Hirschl

More Soccer and Comparative Constitutionalism

The U.S. sports network ESPN has produced a fascinating documentary called The Two Escobars. It examines the link between Columbian soccer and the various drug cartels there during the period of the ascendancy of Pablo Escobar, who led the Medellin Cartel. The star soccer player who is the film’s focus is Andres Escobar. He unfortunately obtained international notoriety by scoring an “own goal” against his team in a World Cup Game against the USA. Escobar was a great soccer player and a very honest individual, according to the film. Moreover, Columbia was then one of the best teams in the world. Yet one of the reasons for the national team’s ascendancy apparently was Columbian drug money that helped fund the country’s players. This was called “narco-soccer.” Unfortunately, Andres Escobar was eventually murdered in part because of his soccer mistake.

Without giving away the ending, the film has several aspects that purport to touch on the Columbian Constitution. First, Pablo Escobar apparently got elected to the national legislature as part of an effort to obtain constitutional immunity and to avoid being extradited to the U.S. Then he managed to eventually get a constitutional amendment passed that removed the extradition provisions. Moreover, he became a bit of a Robin Hood figure by building many soccer fields in poorer communities. I hope people have a chance to watch this film and learn about one country where there was a tangled link between sports, drugs, politics, and constitutionalism.

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Published on June 25, 2010
Author:          Filed under: hp, Mark Kende

World Cup and U.S. Supreme Court Nominations

This op-ed might be of interest to the readership:

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Published on June 17, 2010
Author:          Filed under: hp, Mark Kende

The Legal Status of the Queen in Canada

Canada is constitutional monarchy, a term which refers to a system of government headed by a monarch whose actions are both constrained and compelled by a constitution.

The monarch in Canada is the Queen. The Constitution Act of 1867 says so expressly and the Constitution Act of 1982 affirms it implicity.

But the question that neither constitutional text can answer is whether the Canadian monarch is to be styled the Queen of England or the Queen of Canada, or something else, like the Queen of the Commonwealth, because both constitutional texts refer to the Queen simply as the Queen.

The distinction between the Queen of England and the Queen of Canada arose today in a comparative constitutional law class I am teaching as part of Southwestern Law School’s Vancouver Summer Law Program at the University of British Columbia.

One of my excellent students made the argument that it is improper to refer to the Queen of England in the context of Canadian constitutional law because the Queen of England possesses neither the legal authority nor the political legitimacy to act in Canada. There is only a Queen of Canada in Canada. She is the one who serves as the monarch. And even though both the Queen of England and the Queen of Canada are in reality the same private person, they are two constitutionally distinguishable legal persons.

This is a clever move that helps defend the claim that Canada is a sovereign state with its own monarch, and as a consequence that Canada is indeed truly an independent state that is not at all subject to the authority, ceremonial or not, of a foreign actor.

It is of course merely a legal fiction to distinguish between the Queen of England and the Queen of Canada. But it is a legal fiction upon which hinges much if not all of Canadian constitutional law, at least since 1982 when the Canadian Constitution was “repatriated” from the Parliament of the United Kingdom to the Parliament of Canada.

On this theory of split legal personalities, when the Canadian Parliament passes a bill, which is then given Royal Assent to ultimately become law (this is the equivalent of presentment in the United States), it is therefore not correct to state that the Queen of England signs the bill into law; it is the rather the Queen of Canada who signs the bill into law. Likewise, when a new Justice is named to the Supreme Court, it would be inaccurate to say that the formal appointment is made by the Queen of England; the right answer is that the appointment is made by the Queen of Canada.

This legal fiction is fascinating. But whether this legal fiction is convincing as a matter of constitutional law may be less important than whether it is convincing as a matter of public opinion.

With republican sentiment on the rise in Canada, the monarchist movement may have to look for a line of argument that resonates more intensely with Canadians than this very technical distinction between the Queen of England and the Queen of Canada.

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Published on June 15, 2010
Author:          Filed under: Canada, Constitutional Monarchy, hp, Queen, Richard Albert

Enacting Constitutionalism

For readers who might be interested in a paper on the constitutional enactment of independent judicial institutions, may I suggest a paper just published entitled “Enacting Constitutionalism,” in which my coauthor and I focus on the political composition of the constituent body and its implications for the type of institutions enacted. The paper is available here.

Here is the abstract:

When and why can we expect constitution-making processes to produce an institutional framework that formally serves constitutionalism? We present a simple and general typology of constituent processes that captures their legal/political character and their dynamic nature. We distinguish constitution-making processes controlled by one cohesive and organized political group (unilateral) from processes controlled by at least two different political groups (multilateral). Our central hypothesis is that multilateral constitution-making tend to establish institutional frameworks consistent with constitutionalism. Focusing on independent judicial institutions, we find support for our hypothesis in a sample of 18 Latin American countries from 1945 to 2005.

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