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I·CONnect

Blog of the International Journal of Constitutional Law

Removal of judicial workers and freedom of expression in Venezuela

In the last four months, at least one hundred judicial employees and close to fifty judges from all Venezuelan regions have been fired, suspended, or have suddenly resigned. Unionized judicial workers sounded the alarm on July 13th because the special Judicial Commission set up by Supreme Justice Tribunal (TSJ) to carry on this job, have not even informed most of those affected of the reasons of its decisions.

This last week, two more news gave a new dimension to the work of the Judicial Commission. The first is that one of the suspended judges said she was pressured by a superior to prohibit the head of a television channel, which is openly critic to the government, from leaving the country and was dismissed after she refused to do so. According to media reports, prosecutors have accused the head of the channel of usury and conspiracy to commit a crime – accusations stemming from the recent seizure of 24 new vehicles on his property. The TV executive denies any wrongdoing, saying the accusations are politically motivated, and that President Hugo Chavez is using prosecutors and judges to bring trumped-up charges against prominent opponents.

The second is that a few days ago the Venezuelan Attorney General submitted to the National Assembly, in which President Chavez enjoys more than a majority, a legislative proposal that according to most observers unduly limits freedom of expression. The legislative proposal, among other things, typifies as “media crimes”, to be sanctioned with fines and different prison terms, any activity that puts in risk “social peace, the security and independence of the nation, the public moral and public order”. The legislative proposal also punishes “the publication of false information” and publications that put in danger “the interests of the state”.

Unfortunately, allegations of politically motivated firings and suspensions of judicial workers are not a novel event in Venezuela. A year ago, on August 5th 2008, the Interamerican Human Rights Court decided in favor of three judges fired in 2003, who argued that their suspension was motivated by some decisions favoring opposition mayors and governors. The recent removal of judicial workers and the Attorney General’s legislative proposal take place in the context of President Chavez’s recent urge to speed up the passing of “revolutionary laws” in preparation of the rapidly approaching 10th anniversary of the Constitution of the Bolivarian Republic of Venezuela, to be held on December 5, 2009.

–JRF

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Published on August 1, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America
 

The Spending Power in Australia

A recent decision of the Australian High Court has answered some questions about the source and scope of the federal spending power although many remain unresolved. Pape v Commissioner of Taxation [2009] HCA 23 also is of interest for a range of other purposes, including the interface between federalism and other institutional arrangements and comparative constitutional method.

The Australian spending power has developed differently to that of the two most closely comparable federations, the US and Canada, in part because of the chance inclusion in the original Constitution of an express power to make conditional grants to the States. The existence of this provision undercut the incentive to develop a more general power as a source of authority for payments to sub-national orders of government outside areas of Commonwealth regulatory authority.

Even so, the source of Commonwealth power to spend has been a long-standing issue when (as increasingly is the case) the Commonwealth prefers to spend directly, rather than going through the States. Past skirmishes exposed, but failed to answer the doctrinal question whether the source of any such power is the requirement for parliamentary appropriation (secs 81, 83) or the general executive power. In either case, there were further questions about the scope of a spending power and whether legislation enacted under the ‘incidental’ power could provide regulatory support for expenditure.

Pape revived these issues in the context of a taxpayer challenge to legislation that provided for the payments of ‘bonuses’ to low and middle income taxpayers as part of a package of stimulus measures in response to the global financial crisis. The challenge failed, by a narrow majority of 4-3, but the reasons of the Court, delivered some months later, made the outcome something of a pyrrhic victory. For the moment, at least, the federal power to spend parallels Commonwealth legislative power, supplemented by whatever attaches to ‘the character and status of the Commonwealth as a national government…in a federation’. As a short-term, urgent response to the global crisis, the tax bonuses did so and the incidental power was sufficient to give them legislative force. The validity of a raft of other spending programs remains to be worked out in later cases.

Following Pape, it is clear that the source of the power to spend is the federal executive power. The case thus also takes its place in a chain of Australian authority on the executive power more generally. The problem is as it always has been to combine an understanding of the depth of the executive power (vis-à-vis the legislature, in a parliamentary system) with its breadth (vis-à-vis the States, in a federation). Considered as a challenge to executive spending, Pape raised only the second dimension of the executive power. But considered as a response to a fiscal emergency, it potentially also raised the first, which may assist to explain why the court failed to clearly distinguish between the two. If this interpretation is correct, the reasons of the majority are woefully inadequate for tackling the question of depth. No doubt this is another aspect of the doctrine that will be further clarified in due course.
CS

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Published on August 1, 2009
Author:          Filed under: Australia, federalism, hp
 

Constitutional Court Censors German Government

It’s been a tough week for the German government. It was handed defeats by the constitutional court (Bundesverfassungsgericht) in two separate cases touching on the government’s authority to withhold information from parliament.
In 2006, the German parliament — on an initiative by opposition parties — constituted a parliamentary commission to investigate allegations that the German government and intelligence services had cooperated with US intelligence services in conducting “renditions” using German airports, and in the kidnapping and interrogation of German nationals in connection with the war on terror. The federal government — citing national security concerns — refused full cooperation with the committee’s investigation, instructing high level officials to limit their testimony, and refusing to hand over documents that had been requested by the committee. The government’s decision was challenged before the Constitutional Court by opposition parties.
The second case involved a similar issue. In 2006, several Green members of parliament had made use of the right of parliamentary deputies to question the federal government to ask whether German intelligence services were collecting information on members of the federal parliament (the question was inspired by a similar incident in Sweden). The federal government refused to answer, arguing that to do so would undermine national security by exposing the strategies and operations of the intelligence services. The members of parliament challenged the government’s position before the Constitutional Court.
In two separate decisions handed down this week, the Constitutional Court largely ruled in favor of the opposition challenges. In each decision (2 BvE 3/07 and 2 BvE 5/06), the court asserted that the separation of powers inherent in the Basic Law requires that a non-specific, blanket assertion of the need to protect national security cannot be used to limit the right of parliamentary inquiry. The Court argued that while the executive has a general right (and duty) to protect national security, which may require secrecy, it had failed to plausibly establish that secrecy was necessary in the current cases, in particular because some of the information could have been provided without exposing the inner workings of the intelligence services.

It is hard to say at this point what impact these decisions will have. On the one hand, the Court has handed an unambiguous victory to opposition parties, and the decisions clearly challenge broad claims of executive privilege. Moreover, the decisions are likely to be greeted with considerable popular support. At the same time, the Court was careful not to demand specific action on the part of the executive, nor did it provide very clear guidelines on the conditions under which the executive can (and cannot) assert executive privilege. As a result, their practical effect may be limited.
-GV

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Published on July 30, 2009
Author:          Filed under: Germany, hp, information
 

The Lawrence of India (Pt 2) (the Supreme Court Sequel)

In a recent post (7/5/09), I reported and commented on the decision of the Delhi High Court in NAZ Foundation v. Government of NCT of Delhi & Ors, reading down 377 of the Indian Criminal Code, so as to apply only to “nonconsensual penile non-vaginal sex and penile non-vaginal sex involving minors” – a decision I suggested may come to be regarded as the “Lawrence of India”.

Since then, an appeal has been lodged against the decision by an individual astrologer named Suresh Kumar Kaushal (http://tinyurl.com/mkotbf) and the Supreme Court has voted to accept his petition to hear the matter –see http://tinyurl.com/nr6vs6

The identity of the appellant leaves open the possibility that, unless the government actively intervenes (on the likelihood of this, see http://tinyurl.com/nwf6ve), the Supreme Court might ultimately decide to dismiss the appeal on procedural grounds, or grounds of lack of jurisdiction, as, for example, the High Court of Australia did in Re McBain (2002) 209 CLR 372 (a case in which the Catholic Archbishops sought to appeal against a federal court ruling granting access to state-funded IVF services to single women and implicitly also lesbians) – see http://tinyurl.com/mxmoc9

Such a route certainly seems possible, given the willingness of the Indian Court, despite generally very broad standing rules, to use the requirements of standing as the basis for avoiding issues of great political sensitivity, such as whether the Indian government is required to preserve certain mosques (the Gyanvapi Masjid) or temples, such as the Vsihwanath temple at Varanasi or Krishna temple at Mathura.

However, the Court’s eagerness to hear the matter in a timely way (the hearing is set-down for next week), makes it seem more likely that it does intend to weigh in on the merits.
If that is right, despite strong religious sentiment on the issue in India, global trends (see my last post) predict that is likely to uphold the High Court’s judgment, or possibly even give the result reached by the High Court a more direct Constitutional basis, by striking-down and severing part of s 377. (Striking down the provision in its entirety seems less likely, given the gap it could create in the Code’s prohibition of certain non-consensual sexual activity.)

Lawrence itself also suggests that the Court might use the occasion to emphasize that Constitutional recognition of sexual freedom for gays and lesbians does not directly or inexorably require – or imply – the legal recognition of same-sex marriage. (There has seemingly been some attempt by advocates of gay marriage to make such a link in India, as a practical matter: see http://tinyurl.com/lu7xm9)

However one looks at it, the Supreme Court sequel is bound to be interesting – because astrologers aside, few of us can confidently predict how at least a semi-randomly drawn bench of 3 out of 31 justices will decide.

–Rosalind Dixon (with thanks to both Ambika Singh and Rishad Chowdry for helpful comments on the issues raised by the case.)

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Published on July 20, 2009
Author:          Filed under: gay rights, hp, India, Rosalind Dixon
 

Honduras: When Constitutions Collide?

The constitutional fracas in Honduras is attracting a good deal of attention from comparative constitutional scholars, and deservedly so. One aspect of the entire mess that appears to have largely escaped attention–but raises a number of important questions with ramifications far beyond Honduras itself–is the relationship between domestic and supranational constitutional law.

Articles 19 through 21 of the Interamerican Democratic Charter, to which Honduras is bound by virtue of its membership in the Organization of American States (OAS), condemn any “unconstitutional alteration” or “unconstitutional interruption” of a “constitutional regime that seriously impairs the democratic order in a member state.” The Charter provides for various (diplomatic) actions that the OAS and its member states can or must take in response.

This sort of language – namely, a reference to “constitutionality” under domestic law, in a supranational legal document that itself possesses vaguely constitutional status – opens the proverbial can of worms. Here’s just one of those worms.

Who decides whether an “alteration” or “interruption” is “unconstitutional”? Presumably the relevant source of constitutional norms is the domestic constitution. And Article 184 of the Honduran Constitution does purport to give the Honduran Supreme Court “exclusive” authority when it comes to the constitutionality of laws.

But does that really settle the question of whether the “alteration”/”interruption” is “unconstitutional” for purposes of the Charter? It’s trivial, and only to be expected, for the leaders of a coup to install a puppet court to provide their actions with the imprimatur of legality. In that event, is the OAS really supposed to simply accept what the domestic court says, because the domestic constitution confers interpretive supremacy upon the domestic court? If so, wouldn’t the Charter be defeated by precisely the conditions that it is intended to address?

On the other hand, if domestic constitutional law does not conclusively resolve the Kompetenz-Kompetenz question and the OAS retains the right and/or obligation to “pierce the veil” of a sham court (so to speak), then there must be some standard for judging the adequacy of the domestic court, no? If so, what would that standard be, and what would its legal basis be? Do documents like the Charter necessarily presuppose the existence of supranational constitutional norms that may refer to domestic constitutional norms, but have a life and meaning of their own?

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Will the Bolivian Constitutional Tribunal Rise From the Ashes?

During the first days of June 2009 the last member of the Bolivian Constitutional Tribunal (BCT), Silvia Salame Farjat, resigned. Judge Salame was the only active member of the BCT since November 2007, because the other four members of the Tribunal had either resigned (some under the threat of impeachment) or left when their ten year tenure expired. The BCT has not legally disappeared but it has actually ceased to operate, its budget has been sharply reduced, and its administrative operations have been kept to a minimum.

As of today, the future of the Bolivian Constitutional Tribunal is unclear. The new Bolivian constitution adopted in February 2009 establishes a very peculiar, probably unique, method of selection. Judges to the “Plurinational Constitutional Tribunal” are to be democratically elected for a six-year tenure with no possible reelection; they should represent both the ordinary justice system and the “originary” and peasant (i.e. indigenous) justice system (Arts. 197, 198, and 182, 183). Candidates should meet certain requirements, but a law degree is not necessarily one of them since having experience as an “originary authority” under the indigenous justice system can be enough. Civil and indigenous organizations can propose candidates for the Tribunal, but before the final vote by the people candidates must be pre-selected by a super majority of the National Assembly (art. 183). It will be very interesting to see how this peculiar system operates in practice given the debates on the “counter-majoritarian” difficulties posed by the indirect election of judges capable of nullifying unconstitutional legislation.

For this new system to become operational, however, transitory articles in the Bolivian Constitution call for the enactment of some regulatory laws within six months (e.g. the organic law of the BCT, a new electoral code), and then for the institutionalization of the Electoral Tribunal which is the organ in charge of calling for elections. Taking into account these steps, it is possible that the first universal election of the Bolivian Constitutional Judges does not take place within the next year but until 2011. Given this situation, some Bolivian politicians are calling for a temporary Congressional appointment of constitutional judges (the former method of selection in Bolivia), which would allow this organ to function and process the pending cases left in limbo after Judge Salame’s resignation.

Hopefully, the Bolivian Constitutional Tribunal will rise from its ashes. It was first established constitutionally in 1995 . During the decade it actually operated – January 1999 to February 2009- the TCB encouraged a surge of legal activity and a new profile for the Judiciary, deciding close to 20,000 cases, most of them revisions of amparos and habeas corpus suits decided by lower courts. It also made some noteworthy decisions limiting the power of the government in the economic and political realms (which, according to some observers, explain the government’s decision to dismantle the court). It will be interesting to follow the fate of the constitutional tribunal in Bolivia, one of the countries that have experienced “Constitutional Revolutions” in recent years in the region, along with Ecuador and Venezuela.

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Published on July 15, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America
 

Honduras: The Relevant Provisions

The discussion of Honduras’ constitutional crisis has focused on the military coup removing President Zelaya and installing a replacement. The coup raises intriguing issues concerning the Constitution of 1982 and its attempt to avoid the problem of extending the executive term beyond constitutional limitations. As we have frequently written about on this site, executive “overstay” has been a major problem in Latin America, as well as many other jurisdictions in recent years.

Honduras has a four year presidential term, with a “trigger” clause designed to prevent just the type of referendum Zelaya was proposing. The relevant provision of the Constitution, Article 239, reads as follows:

“A citizen who has held the title of the Executive Power may not be President or a Designate. He that violates this provision or advocates its amendment, as well as those that directly or indirectly support him, shall immediately cease to hold their respective offices and shall be disqualified for ten years from exercising any public function.”

The language seems fairly clear, and leads one to question the near universal demand from the international community for Zelaya’s reinstatement. To be sure, one can recognize that the president violated Article 239 while still opposing the method of Zelaya’s removal. But a true coup d’etat would likely have installed a military ruler, which is also forbidden by the Honduran Constitution. and one wonders whether all the members of the UN General Assembly were so concerned about the actual constitution of Honduras, as interpreted by the Honduran courts, rather than the military intervention.

One can also question the wisdom of a single four year term for the presidency. In another very different context, South Korea has considered allowing for a second term for the presidency, since every occupant of the office has found himself a lame duck fairly soon after election. Notwithstanding the wisdom of Honduras’ approach, my view is that the text favors Zelaya’s opponents.

–TG

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Published on July 8, 2009
Author:          Filed under: hp, term limits, Tom Ginsburg
 

The Lawrence of India?

In Lawrence, when Justice Kennedy surveyed practices regarding the criminalization of sodomy in comparable democracies, a notable omission from his analysis was India: it was clearly an outlier, compared to other major “free” constitutional democracies, in continuing to criminalize sodomy in 2004. This week, in NAZ Foundation v. Government of NCT of Delhi & Ors, the High Court of India effectively ended that outlier status, by delivering what will probably come to be regarded the Lawrence of India. See here.

The Delhi Court did not strike-down s. 377 of the Indian Criminal Code, but rather “read it down” so as to apply only to “nonconsensual penile non-vaginal sex (rape of a homosexual) and penile non-vaginal sex involving minors (pedophilia)”. The Delhi Court may also formally lack the capacity to bind prosecutors in the rest of the country. (This is contested.)

However, recent Canadian experience in the same-sex marriage contexts suggests that, given the reluctance of the Indian government to appeal (see here), the Delhi decision is likely at least within a couple of years to herald a new norm on gay and lesbian sex for the entire country. (On the Canadian pattern in this area, see the very useful summary by Peter Hogg – “The Constitution and Same-Sex Marriage”, 4 International Journal of Constitutional Law 712 (2006).

If this reading of the decision is right, several theories of constitutional comparison suggest that that the decision may also provide additional validation, albeit ex post, for Kennedy’s decision in Lawrence. On one theory, advocated by Jeremy Waldron, it could be seen to provide additional confirmation of an emerging global deliberative consensus that banning gay sex is morally wrong: see “Foreign Law and the Modern Ius Gentium,” 119 Harvard Law Review 129 (2005). Similarly, according to related theory developed by Eric Posner and Cass Sunstein, it could be seen to provide additional statistical confirmation of the likely correctness of this extant global consensus – by adding information about the views of one more (important) set of global minds: see “The Law of Other States, 29 Stanford Law Review 131 (2006).

The applicability of each theory also finds some support in the Delhi Court’s judgment. The Court, for example, makes extensive reference to foreign and international developments in reaching its decision – thereby providing support for an emerging deliberative consensus: see pars 53-59 of the decision. At the same time, it relies on constitutional grounds somewhat different to those relied on in the U.S. and Europe – namely both the formal equality before the law guarantee in Art 14 and anti-discrimination or equal protection clause in Art 15 of the Constitution, in addition to, not simply in conjunction with, the liberty clause in Art 21.

Even if one is not inclined to favor this kind of moral-cosmopolitan approach to constitutional comparison, in the context of a case such as Lawrence, the Indian decision could still be treated as providing some additional ex post support for the Lawrence decision, according to a “democratic theory of constitutional comparison” I set out in a recent article in Volume 46 of the American Journal of Comparative Law (2008). (In the article, I also discuss some other interesting uses the Court might have made of Indian experience, at an empirical level.)

According to this democratic theory of comparison, comparison by the Supreme Court (or other foreign appellate courts) to constitutional democracies that are closely comparable – both generally, and historically in a specific context – can help give the Court useful additional information about the likely existence and direction of social change, if any, within the U.S. in a given context. The theory is that domestic legislative trends are often a poor guide to evolving national understandings because legislative inertia often prevents legislatures from responding to changes on the ground– and within the U.S., legislative inertia of this kind tends to be highly cross-correlated, whereas across countries it is much less so.

Once one sees things in this light, the Delhi High Court decision can itself be seen as a response to legislative inertia within India – driven by internal divisions within the Congress Party and the political costs to it of addressing the issue (see the discussion on the split in the government’s stance on the issue, and the attempt by the Congress party to avoid having to respond in any way, either by way of appeal or legislative reversal: see here.

If that’s right, it then also suggests that the formal presence in 2004 of s. 377 in the Indian Criminal Code was itself likely the pure product of inertia, and so Kennedy was entitled to ignore s. 377 in his comparative analysis. At the very least, it suggests that Kennedy got the basic pace and direction of change rights when in it comes to attitudes towards gay and lesbian sexuality, even in constitutional democracies as deeply religious as the U.S. and India.

–Rosalind Dixon

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Published on July 5, 2009
Author:          Filed under: hp, India, Rosalind Dixon
 

Bullets not Ballots in Tegucigalpa

As readers of this space know, we have been following the evolving constitutional story in Honduras in recent months. The constitutional process erupted yesterday as the Honduran military pre-empted a scheduled referendum and ousted President Zelaya.

The question on the ballot was whether Hondurans should replace the constitution. Before polls opened, the military cast its vote (an influential one, no doubt) by putting Zelaya on a plane to Costa Rica (in his pajamas), cancelling the referendum, and engineering the selection of a new president by legislators in an inpromptu session of the legislature. The background story involves the President’s motives for for rewriting the constitution. That constitution, in effect since 1982 and amended in 20 of the 29 years of its existence by my count, has already doubled its life-expectancy (historically, Latin American constitutions have lasted about 15 years). Zelaya had sought a replacement of the constitution, ostensibly to update it, but critics had feared that he would use the process to allow for his re-election. Certainly, amending or replacing constitutional documents in order to do just that has a long history in Latin American constitutionalism.

Recently, that sort of updating has been accomplished rather peacefully. In the last 30 years, 15 or so Latin American republics have amended or replaced their constitution to allow for re-election of the sitting president without too much trouble or violence. That streak may be at an end. In that sense, the Honduran events illuminate the tension between democratic and constitutional stability. Yesterday’s military action ostensively preserves the formal continuity of the current constitution, while undermining any real sense of democratic stability.

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Published on June 29, 2009
Author:          Filed under: constitutional change, hp, Latin America, term limits, Zachary Elkins
 

A Short Referendum in Honduras

Readers of this space will recall our previous commentary on the Honduran referendum scheduled for today. The question on the ballot was whether or not to rewrite the Honduran constitution. Critics had suggested that the primary motivation for the constitutional replacement was an extension of President Zelaya’s term in office. Whatever the motivation, the results are in. The military, it seems, had the most influential (and only) vote: before the polls opened this morning, the military swept into the presidential palace, deposed the president, and engineered the selection of his replacement by the legislature. All in defense of the constitution, according to a statement by the Honduran Supreme Court. The constitution, it appears, has “survived.”
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Published on June 29, 2009
Author:          Filed under: hp