Blog of the International Journal of Constitutional Law

New Socio-Economic Rights Book

An important new book on socio-economic rights has just been published. The book is called “Socio-Economic Rights –Adjudication Under a Transformative Constitution.” It’s published by JUTA press. The author is Sandra Liebenberg, the Harry F. Oppenheimer Chair in Human Rights Law at the University of Stellenbosch Law School in South Africa. Professor Liebenberg was involved in the drafting of the South African Constitution and is one of the world’s experts on socio-economic rights, among other topics. The book’s focus is heavily on the South African Constitutional Court’s innovative jurisprudence in this area, but the book touches on other countries as well.

Here is a description of the book from the publisher:

“Drawing on a wide range of interdisciplinary resources, this scholarly work provides an in-depth
and thorough analysis of the socio-economic rights jurisprudence of the newly democratic South
Africa. The book explores how the judicial interpretation and enforcement of socio-economic rights can be
more responsive to the conditions of systemic poverty and inequality characterising South African
society. Based on meticulous research, the work marries legal analysis with perspectives from political
philosophy and democratic theory. Cautioning against a traditional, formalistic conception of rights
and the separation of powers doctrine, the author develops a nuanced conception of substantive
reasonableness review in the context of socio-economic rights. She further argues for a reconstruction
of private law doctrines in the light of the normative purposes and values promoted by socio-economic

Socio-Economic Rights – Adjudication under a Transformative Constitution is up to date, including detailed
evaluation and critique of the most recent socio-economic rights judgments. It is set to have an impact
on debates about courts and socio-economic rights not only in South Africa, but everywhere else where
its topic has attracted interest.”

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Published on May 7, 2010
Author:          Filed under: hp, Mark Kende

Rights at Work?

For those of us who grew up in times and places where “socialist” was not considered an insulting adjective, May Day still means something. And notably more so if a person happens to live in one of the 170 countries or so where the regulation of working conditions, hours, wages, etc. is loose at best. Since it is May 1, nostalgic or irrelevant as it may sound to some, a question comes to mind: how beneficial has the constitutional rights revolution been to workers’ interests or labor’s cause more generally?

The relations between constitutional law and labor have always been ambivalent. Lochner is often mentioned as an example of the uber-libertarian, social context-less conceptualization of rights. At least from the late 1970s to early 1990s, when the idea of economic liberalization was in vogue (Milton Friedman, Margaret Thatcher and so on), there seemed to be a deep, ideological affinity between the conception of rights as essentially negative liberties and neo-liberal, small-state social and economic thought. The dominant notion of rights as negative freedoms seems to be based upon a view of society as composed of an unencumbered, autonomous and self-sufficient private sphere, whose members’ full realization of freedom is constantly threatened by the long arm of the encroaching state. Deregulation and privatization, free and “flexible” markets (at least as long as no government bailout is needed), economic efficiency and fiscal responsibility (the latter often perceived as a call for reduced public spending on social programs) were all fundamentals of the 1980s and 1990s orthodoxy of economic neo-liberalism. These objectives share a close affinity with concepts such as individualism, social atomism, and near-existential fear of “big-brother” state that inform the hegemonic discourses of rights. And to that one may add the practical fact that “unregistered” workers (e.g. illegal immigrants) are often not entitled to many constitutional and legal protections that citizens or legal immigrants enjoy.

Having said that, my impression is that the last decade or so has seen some direction change, with the blatant anti-workers line of the 1980s giving way to a relatively more balanced approach by policy-makers and constitutional courts alike. The right to unionize, strike, picketing, or collective bargaining, and certainly issues such as safe or harassment-free working environment, or issues of equity in hiring, promotion, diversity, or entitlement to benefits are taken quite seriously by courts. Likewise, subsistence rights jurisprudence has had some positive implications on the constitutional status of workers rights. Still, it seems that the contemporaneous decline of the Keynesian welfare state and rise of individual rights discourse is not coincidental, and in some cases may even be two sides of the same coin.


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Published on May 2, 2010
Author:          Filed under: Labor rights, Ran Hirschl

Indonesia Blasphemy Ruling

As a follow up to my earlier post on this topic, Indonesia’s Constitutional Court has recently upheld the nation’s controversial anti-blasphemy law. To quote Chris Blake from the Associated Press, “The court ruled…that the 1965 law, which allows for criminal penalties and bans on people or groups that “distort” the central tenets of six officially recognized religions, was in line with the constutition and was vital to religious harmony.” The decision was 8-1. The majority said its job was to prevent the desecration of religions. Supporters of the law said defeat would permit deviant interpretations of Islam.

Critics said the law was vague, intolerant, and provides license for government. They also say the law violated basic freedom of religion principles. Indeed the dissenting judge said that the law could lead to discrimination and was written during a period when Indonesia’s dictatorial rulers were concerned about social disorder.

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

The Iraq Judiary: A Correction and Apology

I feel compelled to update my March 31 post about the Iraq Federal Supreme Court’s recent ruling on the meaning of “largest Council of Representatives bloc” in Article 76 of the Iraq Constitution. I maligned the Court for ruling that the phrase referred to post-election coalitions (multiple party lists that come together to form a government) rather than the party lists considered separately. Considered separately, Allawi’s Iraqqiya list, which won the most parliamentary seats in the March election, would enjoy first crack at forming a government. Under the new ruling Prime Minister Maliki’s State of Law list could join forces with another list (for example the Kurdish Alliance or the predominantly Shia INA), thereby constituting the “largest Council of Representatives bloc” to enjoy this privilege. I posited that the Court had succumbed to political pressure from the Prime Minister.

No doubt the Prime Minister was politically motivated when he took the matter to the Federal Supreme Court. That said, today I had the opportunity to discuss Article 76 with an Iraqi who in 2005 was a prominent member of the committee that drafted the Constitution. This individual is not politically aligned with either Maliki or Allawi, and if he had his way Maliki would not be the next Prime Minister. He contends the Court’s ruling is consistent with the drafters’ original intent. When I pointed out how this reading could be seen as contravening the will of the people he responded that it was so drafted so smaller parties that would likely never win a plurality of seats might still be key players (“king makers”) in the government. I have no reason to doubt his account of the historical record.

I apologize for any mischaracterizations in the March 31 post.

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Transitional Justice in Latin America: Recent Developments

Last Tuesday April 20, a federal court in Argentina sentenced former president Reynaldo Bignone to 25 years in prison for human rights abuses during the 1976-1983 “dirty war”. The Court also sentenced five other retired military officers to prison terms ranging from 17 to 25 years in connection with abuses during the military regime. These sentences consolidate the effort of coming to terms with the past in Argentina that, after many ups and downs since the transition to democracy (1983), got a definitive impulse since the arrival of Nestor Kirchner to the presidency in 2003. As soon as he took office, former president Kirchner fired 52 senior military officers, and during his first year of presidency 97 military personnel were charged with human rights violations and detained.

In recent years other Latin American countries have made important advances in judging the abuses committed during part autocratic regimes. In Chile, for instance, a country where for many years it was not possible to revisit the past, by 2009 judges had opened over 2,500 investigations and have convicted and sentenced 276 former security agents (data taken from Alexandra Huneeus. 2010. “Judging from a Guilty Conscience: The Chilean Judiciary’s Human Rights Turn.” Law and Social Inquiry, vol. 35, no. 1). Another recent interesting case is that of Peru, where televised trials of former president Alberto Fujimori also produced a jail sentence of 25 years for his participation in two episodes of mass killings that took place during his administration.

But not all countries in the region have been able to prosecute past abuses. For example, top military officers in Brazil recently objected the creation of a strong Truth Commission created y president Lula, effectively limiting its reach. There is also the frustrated attempt of former Mexican president Vicente Fox to prosecute the massive student killings that took place in 1968 and 1971 under the authoritarian regime of the PRI. Moreover, Bolivian president Evo Morales is currently trying to prosecute former presidents and other political figures using procedures that are closer to what Otto Kirchheimer called “victor’s justice” than to the exemplary trials in Argentina, Chile or Peru conducted by ordinary courts that effectively guarantee the procedural rights of the defendants.

These events, and the current trial in Spain against Judge Baltazar Garzón for, among other things, trying to investigate the crimes that occurred during the Franco regime, revive the question of the conditions under which transitional justice can take place. In any case, this week’s sentences in Argentina are a welcome development in the quest for coming to terms with the past in this region of the world.

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Published on April 23, 2010
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America, transitional justice

New developments in Japanese religion case

As noted in January, the Japanese Supreme Court held that Sunagawa city’s allowing the free use of its land by the Sorachi-buto shrine violated two provisions of the Japanese Constitution: Art. 20(1) (“No religious organization shall receive any privileges from the State, nor exercise any political authority.”) and Art. 89 (providing that “[n]o public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority”). However, the Supreme Court also reversed a removal order issued by the appellate court, saying that such a removal would prevent the believers of that shrine from exercising their religious freedom guaranteed by the other clause of Article 20(1) of the Constitution (“Freedom of religion is guaranteed to all”). The Court pointed out that the city could develop alternatives, including the possible sale or rental to the shrine of the portion of public land on which the religious establishment sits. As a result, the Court remanded the case to the appellate court at Sapporo, on the ground that the lower court failed to use the inquisitorial approach – which is allowed in administrative lawsuits such as this one – to remind the city of other possible alternatives.

Note that the suit was filed as administrative litigation and thus courts found no difficulty reviewing the case. The Local Autonomy Act allows a citizen to sue the prefecture and municipality in which he or she resides for constitutional violation by the local government. Unlike a civil action, the resident plaintiff can get a court judgment on the merits WITHOUT showing individual harm to his/her constitutional/statutory rights or legally protected interest.

On April 20, Sunagawa city announced that the city would sign a lease as suggested by the Supreme Court decision in order to dispel the questioned constitutional violation. The plaintiffs said that they would argue on remand that the only redress is the removal of the shrine from the city’s property. In my opinion, a lease in such case will not be a constitutional alternative-it remains the government entanglement with the religion.

–Tokujin Matsudaira, Tokyo University

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Published on April 22, 2010
Author:          Filed under: hp, Japan, religion

Bilingualism on the Supreme Court of Canada

Should Canadian Supreme Court justices be bilingual? That question is the latest battleground in the enduring debate on language rights and representation in Canada.
The Supreme Court Act requires that at least three of the nine Canadian Supreme Court Justices come from Quebec, which has historically been the heart of Canada’s French-speaking community. Justices from Quebec (and New Brunswick) have for the most part tended to be bilingual but appointees from elsewhere have not.
This perhaps helps explain why federal Member of Parliament Yvon Godin has introduced a bill mandating bilingualism on the Supreme Court of Canada.
A few weeks ago at the end of March, the House of Commons approved that bill amending the Supreme Court Act to make bilingualism a requirement for future Supreme Court justices.
The battle lines were drawn quite sharply on this bill: the governing Conservative Party did not support the bill but the opposition parties—namely the Liberal Party, the NDP, and the Bloc Québécois, which together constitute a majority in the House—threw their full weight behind it.
The bill is now in the hands of the Senate.
As the Senate begins its deliberations, many observers have expressed their opposition to the bill. Perhaps the most notable among them is John Major, a former Supreme Court justice, who suggests that bilingualism may come at the expense of competence: “To think you can get nine people fully bilingual–you might find them but you’re not going to find the most competent candidates,” says Major.
Another influential commentator—Phil Fontaine, former head of the Assembly of First Nations—has called the bill “elitist” because it is not, in his view, attentive to the richness of the diversity of Canada.
Returning now to the fate of the bill in the Senate, party affiliation cannot help us predict how the Senate will vote on the bill for at least two reasons. First, Senators tend to exercise more independent judgment than their counterparts in the House of Commons, who are often constrained by the convention of Cabinet and party solidarity. Moreover, as an institutional matter, party affiliation in the Senate does not reflect the composition of the House of Commons: the Conservative Party holds 51 Senate seats, the Liberal Party holds 49 seats, the Progressive Conservative Party (which is not represented in the House of Commons) holds 2 seats, while two Senators have chosen to designate themselves as “independent” and another remains unaffiliated.
It therefore remains unclear, for now, what the future holds for the Supreme Court bilingualism bill in the Senate.
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Iraq’s Bush v. Gore?

A Special Iraqi Electoral Court today waded even deeper into political and electoral waters, ordering a partial recount of votes cast in last month’s parliamentary election.

In so doing the court upset the Independent Higher Electoral Commission’s certification of the results and has played right into the hands of Prime Minister Nouri Al-Maliki, who seems to be pulling out all the stops to win a plurality of seats in Parliament.

(My March 31 post (below) explains the politics behind the recount, which is in line with an earlier ruling by the Federal Supreme Court on the post-election government formation.)

The irony is that while Prime Minister Maliki (or any candidate for that matter) would clearly like to enjoy a plurality of parliamentary seats, this is not necessary to form a government. Constitutionally, the only advantage the party/bloc with the most seats enjoys is the first opportunity to form a government, which is accomplished by securing a coalition with a majority of parliamentary seats (163). (And even that advantage has been diminished by the earlier judicial ruling made at the prompting of the Prime Minister.) With 91 seats for Allawi’s Iraqiyya Party and 89 for Maliki’s State of Law Party neither party/bloc alone comes close. This is why the past several weeks have witnessed daily reports of intense negotiations with other parties and blocs.

The point is that either Allawi or Maliki will complete a successful negotiation with other parties to form a government or they won’t. But success or failure does not so far seem to hinge on who actually has the most seats. In other words, Prime Minister Maliki, through the judicial intervention, may in the end successfully capture the most seats. But it will be irrelevant if Allawi and the other major parties reach agreement to form a government. Conversely, the Prime Minister could put an end to the recount (and the delay, suspicions, and ill will it has generated) and focus on building a coalition to form a government — and, if successful, render meaningless Allawi’s numerical parliamentary advantage.

For now, the only certainty seems to be that the judiciary is going to come through these elections tarnished — its integrity and independence having suffered.

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Published on April 19, 2010
Author:          Filed under: election, hp, iraq, Jason Gluck, judicial elections, judicialization

Indonesia Blasphemy Hearing

The Indonesian Constitutional Court is holding a hearing on the legality of the nation’s 1965 Blasphemy Law. The law officially acknowledges six religions: Buddhism, Catholicism, Confucianism, Hinduism, Islam, and Protestantism. It also essentially prohibits “religious based activities” that “resemble the religious activities of the religion in question, where such interpretation and activities are in deviation of the basic teachings of the religion.” This seems to prohibit alternative teachings. Indeed, the case emerged because the government banned a sect of Islam that viewed its founder as the last prophet of Islam.

Recently, BYU law professor Cole Durham testified before the Constitutional Court by video and argued that the law violates the International Covenant on Civil and Political Rights. By contrast, Indonesia’s Minister of Religious Affairs is arguing the law must be upheld to avoid developments like Islam and the Koran being interpreted at will.

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Published on April 18, 2010
Author:          Filed under: hp, Mark Kende

Guest blogger Schor: Should national high courts be staffed largely with bureaucrats?

The resignation of Justice John Paul Stevens has given rise to speculation as to his replacement. It has become an almost invariable pattern in the United States to appoint professional bureaucrats (i.e., judges who have toiled in the lower federal courts) to the high court. Some polities, however, have a different practice and appoint judges to their national high courts with a non-judicial background. In Belgium, for example, at least half the judges on the constitutional court must have a minimum of five years experience either in the federal or in a regional parliament. In France, over half the members of the Constitutional Council who have served from the inception of that body to the present have served in parliament. Professors and academics have been appointed to national high courts in Colombia, France, Spain, Italy, and Germany. Civil law countries have largely rejected the idea of exclusively staffing constitutional courts with professional bureaucrats.

I do not think that the American practice of selecting professional bureaucrats as justices has served us well. Judges with non-technical, legal backgrounds have something important to add to the constitutional conversation. The open-ended provisions of the constitution are not like other laws. One need not be a legal realist to understand that the incantation made by nominees to the United States Supreme Court in their appointment hearings before the Senate that they are simply umpires following the law is errant nonsense. Hans Kelsen (no legal realist) very perceptively suggested in an important essay he wrote in 1928 that the “Constitution in employing a term such as justice did not intend that the fate of a law would depend on the pleasure of a collegial body selected in a more or less arbitrary fashion.” For better or for worse, few, if any, constitution writers have followed his advice and made the broad provisions of a constitution purely programmatic. If, however, the open ended provisions of a constitution are to be self-actualizing, their interpretation requires judges with a broader vision than is typically supplied by law school and a career on the bench. It seems unlikely, for example, that justices with a broad, non-technical background would invalidate a hard fought and democratic national health care bill whereas it is, unfortunately, quite possible to imagine our Court from interfering with (and damaging) democracy in this fashion.

–Miguel Schor, Suffolk University Law School
SSRN Webpage

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Published on April 12, 2010
Author:          Filed under: hp, judicial appointments, Miguel Schor