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Blog of the International Journal of Constitutional Law

Chess and French privacy issue.

A French chess player, and two confederates, have been found guilty of cheating at the recent world chess olympiad in a scheme that involved use of the Internet, use of a very strong computer chess program, use of a cell phone, as well as coded signals by the team captain (based on where he stood in the tournament room). http://www.bbc.co.uk/news/world-europe-12853229 A trial in front of a French chess federation tribunal with lawyers, evidence rules, etc. took place. The guilty grandmaster actually had won an award and money for his excellent performance in the tournament. As a chess player myself, the whole scenario is strange and troubling. The only good news is that a French chess federation official was brave enough to accuse her own team. But the appeals of the convicted individuals will be based, in part, on the argument that privacy rights were violated when text messages on a cell phone were looked at without permission. This dispute could provide more information about how French law handles privacy interests involving new technologies.

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Published on April 4, 2011
Author:          Filed under: hp, Mark Kende
 

The Future of the Canadian Supreme Court

Last week, Canada entered its 41st federal election. Voters will head to the polls in a few weeks on May 2. The contest will pit the incumbent Conservative Party, which held a minority in the last Parliament, versus the four major opposition parties: the Liberal Party, the separatist Bloc Québécois, the New Democratic Party, and the Green Party.

Unlike most recent federal elections in Canada, this one will be potentially quite significant for the future of the Canadian Supreme Court. The reason why is this: the next Prime Minister will have the power to appoint up to three or four new Supreme Court justices in his next term. Insofar as there are no formal checks on the Prime Minister’s appointment power–unlike, for instance, in the United States where the Senate must confirm the President’s nominees–the Prime Minister could very well reshape both composition of the Court and its ideological orientation.

By law, a Canadian justice must retire no later than her seventy-fifth birthday. [Section 9(2)]

Four current justices will reach that benchmark by the year 2015: (1) Justice Morris Fish will reach the mandatory retirement age on November 16, 2013; (2) Justice Ian Binnie will attain that age on April 14, 2014; (3) Justice Louis Lebel will have to retire by November 30, 2014; and (4) Justice Marshall Rothstein must retire by December 25, 2015.

Appointments to the Canadian Supreme Court have historically been much less politically charged than what we have seen in the United States. But the two protagonists in the current federal election–incumbent Prime Minister Stephen Harper and Opposition Leader Michael Ignatieff–both possess strong views about the role of judges and more broadly about the function of the Supreme Court. It would therefore not surprise observers to see the next Prime Minister depart from Canadian political tradition in order name more ideological judges to the Supreme Court, particularly if the new Prime Minister holds a parliamentary majority.

One could quite easily conceive of Stephen Harper appointing unabashedly conservative-minded judges who adhere to a minimalist view of the Court’s function. One could just as easily picture Michael Ignatieff, the celebrated human rights scholar, naming to the high court a cast of judges who believe deeply in the socially transformative possibilities of constitutional rights adjudication.

Either is possible. Which is why the Canadian federal election now underway will have important implications for the future of the Canadian Supreme Court.

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Published on April 2, 2011
Author:          Filed under: hp, judicial appointments, Richard Albert, Supreme Court of Canada
 

The death penalty around the world in 2010: an empirical snapshot

Amnesty International has released figures on worldwide use of the death penalty in 2010. The U.S. clocks in at number 5 in terms of the sheer number of executions, ahead of Saudi Arabia and behind Yemen. These are absolute numbers, though, not per capita figures. The BBC has a helpful graph here. Although the article says that the use of the death penalty is continuing to fall, in the sense that the raw number of executions is decreasing, the number of countries that executed people actually went up last year.

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Published on March 29, 2011
Author:          Filed under: David Law, death penalty, hp
 

Cairo Update: After the referendum, a new turn in constitutional developments

Just a few days before the constitutional amendment referendum held in Egypt on March 19, the current ruling authority, the Supreme Council of the Armed Forces (SCAF), announced that the results of the referendum, positive or negative, would be followed directly by a “constitutional declaration.” Prior to that announcement, it had been expected that if the referendum passed, the SCAF would merely amend the provisions of the constitution as provided for in the referendum and then reinstate the constitution. In such a case, the declaration was anticipated to be a straightforward statement of the timetable for subsequent parliamentary and presidential elections. If the referendum did not pass, the SCAF would have to come up with a new plan.

The referendum did pass, but one week later, the SCAF still has not issued the constitutional declaration. During the course of the week, more information has been released about its expected contents. The press reported rather consistently that the declaration would contain the amended constitutional provisions, other provisions from the constitution that are relevant in this interim period, and the most important laws (as amended by the constitutional drafting commission) for the coming elections. (These include the laws on the formation of political parties and the election process for both houses of parliament and the presidency.) This bundle of constitutional provisions and laws would act as a temporary constitution until new parliamentary and presidential elections take place and a new constitution is subsequently drafted and accepted by Egyptians.

The idea of a temporary constitution raised significant questions, especially among judges and lawyers paying close attention to the constitutional aspects of the transition process. Will the temporary constitution include a role for the SCAF, so that it can become a constitutional actor? Why was a referendum to amend certain provisions of the constitution even needed, if the SCAF in fact has the power to make substantive constitutional decisions on its own? And if a referendum to amend the constitution really was needed, is a new referendum also necessary in order to accept the interim constitution? The SCAF has not provided answers to these
questions.

Further, the sense of certainty with which the SCAF initially announced that a constitutional declaration would be forthcoming now seems to be fading quickly. News reports suggest that it may be several more days, and there is no explanation for the delay other than vague statements that the SCAF wants to ensure widespread agreement on its contents. The delay may suggest that the SCAF is reevaluating its plan to hold in quick succession parliamentary and then presidential elections. It is even possible that the opponents of the referendum have convinced some on the SCAF that the process it initially envisioned might exclude the youth movement and others from effectively competing in the elections. The delay may mean that the SCAF is finally taking note of the concerns raised by some constitutional law scholars, most vocal among them Supreme Constitutional Court justice Tahani al-Gebali, about the constitutionality of the process and the possibility that aspects of it could later be challenged as unconstitutional. And the delay certainly indicates that the path forward in the constitutional process is more complicated than the SCAF admitted when it presented the referendum to the people for a vote.

–Kristen Stilt, Northwestern Law School

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Published on March 28, 2011
Author:          Filed under: Egypt, hp, Kristen Stilt
 

The Confederate States of America Constitution at 150

This month marks the 150th anniversary of the signing of the Confederate Constitution into law. Following weeks of deliberation by forty-three delegates from seven states, the Confederacy formally ratified the document on March 11, 1861. Four more States, and two territories, would later join the Confederate States of America (CSA) and in doing so adopt this constitution for the war’s duration. In all, nine million free Americans, and three million slaves, lived and fought under its jurisdiction for years. And yet, while the causes and issues behind the US Civil War have received a good deal of attention as America prepares to commemorate the sesquicentennial, the actual government envisioned by those early rebels has been largely overlooked.

The CSA Constitution reads as a nearly verbatim copy of the US Constitution, and includes all amendments in existence at the time (#1-12). Yet the few modified provisions where the drafters did choose to alter the fundamental design of government can offer a fascinating window as to Southern leaders’ actual goals in seceding, and by extension the causes of the war. This perspective is of great value at a time when certain political movements have latched on to the CSA Constitution as a sort of intellectual precursor on issues such as State’s Rights, limited judicial authority, Christian values and minimal government interference over economic freedoms. And yet, it would be difficult to concoct a stronger rebuttal to this view than the actual text of the Confederate Constitution.

Confederate Tea Party

“We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity — invoking the favor and guidance of Almighty God — do ordain and establish this Constitution for the Confederate States of America.”

To a modern reader, the above preamble might imply that what the rebel leaders had in mind was a kind of Tea Partyer Utopia. Gone is talk of promoting ‘general welfare’ or working towards a more ‘perfect union.’ Replacing them are references to The Creator and of “sovereign and independent states.”

Reading beyond the preamble however, it soon becomes clear that this language of God and State Independence is more a justification of rebellion, than a philosophical foundation for governance. Modern conservative bogeymen such as the Federal “Supremacy” clause, the congressional power to “Regulate Commerce” and the “as Necessary and Proper” clause remain intact; as does, somewhat ironically, the presidential authority to suspend habeas corpus in response to a rebellion. And while certain federal powers are curtailed or excluded, a surprising number of brand new ones emerge which, had the Confederate government ever been able to finish putting itself together, might have actually made the individual states even less independent than they had been in the antebellum period.

Mentions of Judeo-Christianity beyond the preamble are likewise absent with the exception of references to such and such “Year of our Lords” when discussing dates. And lest we be tempted to read too far into this language, it is important to note that the change keeps with Nineteenth Century writing conventions. The CSA likewise modernized the language of those US Constitutional provisions which were kept on: the old congressional power to “chuse their other Officers” becomes one to “choose their other officers.”

Activist Judges:

It is important to note the difference between the CSA government as envisioned by its constitutional drafters, and the weak federal structures that actually emerged between 1861-1865. Due to the constant state of wartime emergency, many of the institutions outlined in the Confederate Constitution were never set up. Elections were few and flawed, a called for Federal Supreme Court was never actually put together, nor was a coherent taxation system put into place. These situational circumstances led to a far weaker federal authority in practice than that which was drafted into the CSA Constitution. Forced to rely on State donations and an ever-increasing pile of debt, while at the same time bearing the staggering responsibility of organizing defense, the embryonic government was unable to implement much of what was constitutionally required of it. As a result, the jurisdictional vacuum was predictably filled by those State institutions which had emerged from the secession largely intact.

A good example of this phenomenon can be seen in the Confederate judiciary. CSA Article 3 mirrors its US counterpart in all but three respects:

  1. Omission of the language “in law and equity” since around half of the initial signers (Florida, Texas and Louisiana) came from continental colonial traditions that did not recognize the legal distinction.
  2. The constitutional prohibition of suits against the Confederate States by citizens of foreign governments (so as to sidestep property claims from former landholders in the now ‘foreign’ USA.)
  3. The dropping of federal jurisdiction over disputes between citizens of different CSA States.

What this system would have looked like in practice – for example where interstate disputes could have gone when they invariably arose – will never be known. In the absence of a Confederate Supreme Court with the final authority for constitutional interpretation, there was never an opportunity to provide a definitive answer. It was in this context of judicial adhocracy, that state courts enjoyed a veritable free rein. Those ‘Federal’ Courts that did exist were invariably Union appointee holdovers from before the war and suffered from a serious lack of legitimacy and influence as a result. On paper however, the Federal courts remained an integral part of the system – just like the secessionists had envisioned them to be.

Taxation and Government Interference over the Economy:

Where the Confederate Congress did weaken Congressional power to appropriate money is as follows:

  1. Confederate Federal Congress was explicitly forbidden from “granting bounties” or “imposing tariffs” to “promote or foster any branch of industry” (which would have been terrible news for a Confederate General Motors, or AIG.)
  2. To appropriate money from the treasury a two-thirds vote in congress was required (as oppose to a simple majority.)
  3. These appropriations would be strictly limited to the specific amount approved.
  4. Congress lost the authority to tax the imports of industrial goods from foreign countries, which somewhat understandably for the pre-industrial South, had been a constant source of contention prior to the war.

And yet modern readers might be surprised to discover that, the abovementioned congressional limitations aside, the Confederate Constitution was surprisingly hostile to a free economy. States could collude to tax ships (foreign or domestic) for utilizing their waterways (think tollbooths on the Mississippi), and would also be responsible for printing their own money with all the trade complications implied therein (think Europe before the Euro.) Also, under a bold new heading titled “The Congress shall have Power” the Federal Government gained the right to lay a tax on exports both for the international market and for those goods moving between the Confederate States themselves. For an economic region almost entirely dependent on export revenues from cotton, tobacco and sugarcane to Europe, The North, and one another, this would have been a much a greater potential source for government revenue than the former provisions on imports.

Prescience:

Oddly enough, some novel items in the document have subsequently become de facto US procedure as federal authority, particularly executive authority, has been strengthened over the last century. A clear example of this can be seen in the right of cabinet members and executive staff to appear before, or be summoned by, Congress.

Other innovations, such as a presidential line item veto, have likewise been seriously discussed as viable alternatives to existing American law. Line item vetoes, a common check in parliamentary systems, empower a President to strike down specific pieces of legislation without having to veto the entire bill. And while the United States has never granted this power to the executive, most standing president since the 1970s have endorsed the idea in principle for the purpose of combating ‘pork.’ It’s interesting to note that the first of these presidential endorsers, Richard Nixon, would likely have had an even greater appreciation for the CSA President’s heightened authority to fire any civil servant at will – requiring only a cursory explanation to the Senate after the fact.

State Sovereignty Under the Confederacy

The individual states did gain a few new authorities under the CSA. Rather than requiring constitutional amendments to take place through a three/quarters vote in Congress, the CSA Constitution could be modified through a two/thirds majority in two thirds of the state legislatures. The States could also impeach federal officials acting locally through super-majorities in state assemblies. Then again, as previously mentioned, the President could also fire State officials at will so this initiative might best be seen as a dilution of the separation of powers than a strengthening of State Authority per se.

Yet these few new state rights came with a very high price tag. Throughout its history the United States has allowed, and continues to allow, the states themselves to define most of the requisites for suffrage. At various times, in various states, women, Native Americans, people who own no land, the illiterate, criminals, foreign nationals who own property, citizens living out of state etc. have been granted or denied the franchise fully on the authority of the State government. At the time of the Civil War five states had already enfranchised African Americans, and defining who got to vote, was one of the most important issues in 19th Century state politics (think the Irish immigrant laborer votes and Tammany Hall…)

Slavery

It’s interesting to note that in 1789, the Founding Fathers never once mentioned “slaves” or “slavery” by name in the US Constitution. The text (rather awkwardly) refers to slaves as “other persons” or uses blanket terms such as “property” in which slavery can be interpreted (or not) by court or statute. For their part, the CSA had no qualms in this regard, and the term “slave” or “slavery” expressly appear ten times.

Under their constitution, the Confederate States, would give up the right to legislate against (or even modify) the institution of slavery. Nor could, states seeking to enter the Confederacy could not do so as ‘free states.’ “The institution of Negro slavery, as it now exists in the Confederate States, shall be recognized and protected be Congress and by the Territorial government.” This entirely new section of the constitution goes a long way towards clarifying Confederate priorities. Fugitive slave laws were tightened and the ability of slave-owners to move their slaves around the fledgling country as they saw fit was constitutionally protected and would remain “as is” regardless of subsequent developments or state preference.

The rejection of Federal authority to decide “moral” issues for the states is a repeating and unifying theme in modern conservative and libertarian discourse. From mandatory health care and homosexual marriage, to Roe v. Wade, the argument that States are the polity that can best recognize the moral needs of their people may well be among the most resonant expressions of Tea Party discontent. So to draw common cause with a constitution which expressly forbids the States to legislate any “bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves” is at best ignorant (and at worse a cynical ploy to disguise actual bigotry.)

As outlined above, those few new state freedoms which were granted, were either unintended (like stronger state courts) or prosaic and largely circumstantial modifications (such as taxing exports rather than imports), not a philosophical rejection of ‘big government.’ Thus, if it’s constitution is to be believed, the Southern secession of 1861 was never about state rights, or religion, or free economies – it was about slavery, plain and simple.

The full text of the Confederate Constitution in can be found here courtesy of the Yale Law School Avalon Libnrary: http://avalon.law.yale.edu/19th_century/csa_csa.asp

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Published on March 25, 2011
Author:          Filed under: Daniel Lansberg-Rodriguez, United States
 

Hungary’s proto-authoritarian new Constitution

Hungary is about to give itself a new constitution: 21 years after the peaceful transition from communism to democracy the nationalist-conservative government of Prime Minister Viktor Orbán, by virtue of its 2/3-majority in parliament, has tried to put the country on a entirely new constitutional course, with exceptional haste: Last week a draft for a new constitution was published, this week parliament has begun to discuss it, and in the week before Easter it will be adopted and promulgated. On January 1st 2012 it will enter into force.

The draft is remarkable in more than one way. First, it begins with a preamble of unprecedented length, titled National Avowal of Faith. The religious connotation of that term is intentional: The draft declares Christianity as crucial for the foundation of the nation; other religious traditions (such as Judaism) are merely “respected”. The preamble also describes the nation in cultural, not political terms: “We solemnly promise to preserve the intellectual and spiritual unity of our nation, torn apart by the storms of the past“ – a reference to the great number of ethnical Hungarians living in neighboring countries. It also refers to the concept of the „Holy Crown“ – the medieval crown of the Christian Hungarian kings – as the embodiment of the constitutional continuity of Hungary and of the „unity of the nation“.

The “Holy Crown“, odd as it seems in a republican constitution, also implies a reference to greater-Hungary ambitions, since the medieval kings ruled over the entire Carpathian Basin, including large parts of what now is Romania, Slovakia, Serbia and Ukraine. Last year the government enacted a law that gives access to Hungarian citizenship to ethnic Hungarians, and many expect that soon they will also be given the right to vote in national elections – which could very well result in a further shift in the electorate favoring the right.

The preamble is not intended as merely a solemn declaration: In Art. Q III the draft provides that the constitution is to be “interpreted in accordance (…) with the Fundamental Law’s National Avowal of Faith”, and also “with the achievements of our thousand-year-old Hungarian Historical Constitution.” What the legal effect of this will be is totally unclear at this point. That will be for the Constitutional Court to decide.

The Constitutional Court has played a considerable role in shaping the current Constitution of Hungary. After the communist reign ended in 1989, the old stalinist constitution of 1949 had not been replaced, but was amended in numerous ways; basically all traces of the communist constitution have been eliminated. The result was a rather incoherent, provisional text, the core of which has been adopted by the communist parliament on the basis of the round table agreement. In the 90s the Consitutional Court under its president László Sólyom did a great deal to fill the gaps and to create what was a perfectly workable constitutional law.

The flaws of the current constitution were mostly aesthetic and symbolic. Therefore, as the Orbán government announced its plans to create a new constitution most expected the reform to fix these symbolic shortcomings, first and foremost to cast the current constitutional law in a better legitimized form, adopted by a freely elected parliament. That did not turn out to be the case, though. Whereas many provisions basically remain the same, in some important aspects the actual draft breaks radically with its 1989 predecessor and the constitutional values it embodies.

First of all, the draft severely narrows the competences of the Constitutional Court. It raises the number of parliamentary deputees needed for constitutional review of a law from one to one quarter of the parliament – a threshold that effectively precludes the opposition to question government laws constitutionally, because Socialists and Greens would have to cooperate with the extremist Right in order have 25%. Even more disruptive is what the draft does to the competence of the court to review fiscal and budgetary laws: this is mostly eliminated. Only if a law infringes human dignity or some other very specific rights such review is admitted. The effect will probably be that the Court will betake itself to softening the concept of human dignity in order to get its hand on unconstitutional fiscal law – a possibly very harmful side effect.

The background for the restriction of its competence is that the Court last year struck down a law that enabled the government to retroactivly impose a 98% tax on all public payments, with the intention to roll back parachute payments for cronies of the outgoing socialist government. The Orbán government in return used its 2/3 majority to amend the constitution accordingly to save its law, and at the same time it restricted the Court’s competence of judicial review. It announced that this would be only transitional. But now the draft makes it permanent.

The most disturbing feature of the draft is probably that it seems to be bent on undoing the entire constitutional jurisdiction of the last 20 years. In the preamble it says: “We do not recognise the legal continuity of the 1949 Communist ‘Constitution’, which laid the foundations for tyranny, and hence we declare it to be invalid.“ That might imply that all jurisdiction and scholarship referring to the old constitution is declared irrelevant under the new constitutional law. (On the other hand the preamble says at another point that May 2 1990 is “the day we consider to be the beginning of a new democracy and constitutional order for our country“. Much of the constitutional democratization had already taken place at that date, though).

Some even think that this could even lead to a dismantling of the present Court altogether: The government might argue that the old justices have been appointed under the old, now invalid constitution and pack the court with a full set of loyalists who would stay in office for 12 years. The Orbán government has in the last months repeatedly made use of its majority to prolong the terms of several key official positions, such as the general prosecutor, the head of the auditing office or the head of the media regulation office, to nine years, in order to make sure that Orbán loyalists stay in office regardless of the outcome of future elections.
A distinctly authoritarian streak can be felt in the basic rights section – albeit in a more subtle way. The title of that chapter is “Freedoms and Responsibilities“. That could be read as a departure from the classic concept of basic rights as status rights of human beings or citizens, which do not have to be earned or deserved by fulfilling one’s obligation to the community. In Art. XI the freedom of choice of profession (“Everyone shall have the right to freely choose his or her job or profession, or to engage in entrepreneurial activities.“) is directly followed by this sentence: „Everyone shall have a duty to contribute to the enrichment of the community through his or her work, performed according to his or her abilities and possibilities.“

A peculiarity of the draft is its provision of the possibility of an additional vote for families with children. (This is still controversial even in the ranks of Orbáns coalition and therefore might be dropped before the adoption.) That digression of one man, one vote is very problematic, particularly since it might also serve Orbáns electoral interests. The idea is not to give the parents a vote for each child, though, but to give the mother to a second vote, regardless of the number of children. That probably serves to assuage the resentments of many Hungarians against the Roma minority with their alledgedly large families.

While the content of the draft is disquieting, the process of its handling by the government majority is downright bizarre. Orbán had announced after his landslide victory in April 2010 to give the country a new constitution within a year. The current constitution with its single chamber system gave him the power to do so: A 2/3 majority is sufficient to alter the constitution and to enact a new one. In the 90s a former coalition government had introduced the need of a 4/5 majority to get a new constitution on the way, but that was quickly reversed by means of a further amendment.

The idea is that the election was the actual revolution that Hungary never had. The government likes to talk of the election in terms of a “revolution in the voting booth“: by giving Orbáns coalition a 2/3 majority the Hungarian people empowered him to complete the unfinished job of 1989 and to put and end to the communist era for good. Orbán appointed a commission lead by the conservative MP and constitutional law professor László Salamon. The initial draft that commission drew up did not find favour with Orbán nor with most else, so Orbán dumped that draft and installed another committee by three politicians (including Salamon) which finalized the actual draft. Who actually contributed to that draft remains intransparent.
No referendum will take place. The government chose to consult with the people only by means of a short questionnaire of 12 questions, most of them put in a rather suggestive form and omitting some of the most controversial points such as the restriction of the competence of the Constitutional Court. How many of these questionnaires have been answered and in which way they shall influence the process is unclear at this point.

The opposition withdrew itself early in the process. The only party that has taken an active part in it, besides the government coalition, is the right-wing extremist Jobbik. Orbáns coalition with its 2/3 majority will have written, debated and enacted the new constitution all by itself. That makes it highly improbable that the new constitution will have a sounder legitimacy base than its predecessor.

–Maximilian Steinbeis, www.verfassungsblog.de

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Published on March 24, 2011
Author:          Filed under: hp, Hungary
 

From Cairo: Kristen Stilt on Assessing Tahrir’s First Ballot Box

[cross-posted from Foreignpolicy.com] The need to establish stability during a period of great uncertainty was a central issue in Egypt’s constitutional amendment referendum held on March 19. Advocates of a “yes” vote championed an immediate path to political, economic, and social stability through amendments to the most offensive provisions of the constitution, which would be followed by parliamentary and presidential elections in the coming months. Only then would a new constitution be considered. While 77.2% of Egyptians approved the referendum, the vote will not bring clarity and assurance to the country. Even though a new sense of confidence has come from the process of the referendum, the implementation of its provisions threatens to spur a new kind of instability and uncertainty.

The referendum asked voters to approve or reject several amendments intended to quickly fix aspects of the constitution dealing mainly with the emergency law and presidential elections. The vote also paved the way for the drafting of a new constitution. None of the amendments were particularly controversial in substance, but an opposition movement quickly developed to denounce the amendments as a mere “patching” of an unacceptable constitution that had become null and void as a result of the revolution. Opponents of the referendum also expressed concern that starting with parliamentary elections would benefit existing power structures-the remnants of the National Democratic Party (NDP) and the Muslim Brotherhood in particular-to the exclusion of new and fledgling parties. Thus, the parliament that would oversee the new constitution would fail to be truly representative, they argued.

Referendum opponents, including political groups other than the NDP and the Muslim Brotherhood, Christians, liberals, and some of the revolutionaries, wanted to begin with the drafting of a new constitution in a process that would include the full range of views in Egypt. Then, elections would follow. They were accused by their opponents, however, of seeking to extend the current period of uncertainty into what was expected to be a protracted constitutional process. During that period, the Supreme Council of the Armed Forces (SCAF) would remain in power. “No” advocates were willing to tolerate military rule as long as necessary to get a new constitution in place that reflected the true wishes of the Egyptian people. Their opponents, however, characterized this as an unacceptable lengthy extension of the status quo.

The “no” advocates were working against a strong presumption in favor of the referendum. While the SCAF refrained from persuasive advertising itself, the sheer fact that the referendum was brought to the people by the SCAF made its position clear. The Muslim Brotherhood campaigned vigorously in favor of the referendum, emphasizing that its passage would end what they called the current state of chaos. Through this theme, they were able to tap into popular concerns of instability, both real and created. Economically, a drastic drop in essential revenue from tourists and a general inability or hesitation by Egyptians to spend has severely damaged the local economy. The Egyptian stock exchange has been closed for some time, but promised to reopen after the referendum, with the clear implication that its adoption would help to reduce the pain expected on the opening day.

Advocates of the referendum also played on fears of crime and insecurity, claiming that social stability would continue to worsen during a protracted constitutional process. The extent of an actual rise in crime-and the changing nature of that crime-is difficult to determine, but there certainly is a perception in some circles that this is the case. At a polling station in Imbaba where I spent many hours on referendum day, voter after voter spoke of their fears of crime and banditry and the need to “move on” to parliamentary elections that would restore a sense of security and normalcy. For many Egyptians, the military’s unwillingness to act as a police force has allowed deviant actors in society to flourish. One man told me that even though Egyptian universities had re-opened, he would not let his daughter attend because he did not think the streets were safe. If the referendum passes, he said, we will know what happens next, and we will feel more secure.

The interests of the SCAF, the Muslim Brotherhood, and other supporters of the referendum also coincided on the issue of return to civilian rule and the resulting benefits to Egypt’s national security. The military seems to want out of the business of ruling as soon as possible, and the Muslim Brotherhood has also reinforced this as a goal. It is more than a matter of principle: if the military is busy ruling, who is watching the borders, many asked? I heard a number of references to the current crisis in Libya, the desire of the Nile Valley countries to restrict the flow of water to Egypt, as well as to the enduring threat of Israel as reasons why the referendum should be adopted. These arguments carry power, especially as the threat of Israel has long been used to manipulate public opinion.

But will Egypt truly move into a period of stability? A “constitutional declaration” is expected from the SCAF setting out the precise timetable for parliamentary elections in the coming months. Intense discussions have already begun over the formation of new political parties and the procedures for the new elections. Many serious questions are now immediately relevant: how much religion will be allowed in the electoral process? What if Egypt’s Christians want to form their own equivalent of the Muslim Brotherhood’s new Justice and Freedom Party? What role will the former members of the NDP, now currently in the process of re-forming itself, play in the elections?

The SCAF must oversee the adoption of new laws and regulations concerning all aspects of the parliamentary and even subsequent presidential elections since the existing ones are unacceptable. This not only further entrenches the military in tasks best left to the legislature but also opens topic after topic for major contention amongst political parties and factions that are quickly forming. Unlike the simplicity of the referendum, the parliamentary elections will be complex, and opportunities for fraud and intimidation will grow exponentially. Old electoral structures will be hard to dismantle, and parties will surely seek to harness those networks of patronage to their advantage. And once the parliament and president that are elected under these contentious circumstances turn to the new constitution, the choice of drafters and the entire process will be in their hands. Does this really promote long term stability in the Egyptian legal and political system?

In addition, the questionable legal status of the newly amended constitution undermines the claim that adopting the referendum will lead to stability. This is a somewhat technical issue, raised by lawyers and judges rather than the average voter, but with potentially grave implications. The amendments did not add a constitutional role for the SCAF, leaving its status unclear. Although an extra-constitutional actor, is it bound in any way by the constitution? Or obligated to ensure that all other actors in the country comply with it? In the coming months when new issues arise, will the SCAF find a need to change other provisions of the constitution, calling for another referendum, or will it act on its own? Might the parliamentary and presidential elections and even the drafting of the new constitution later be challenged as unconstitutional? Some Supreme Constitutional Court judges, who would be the ones to receive such a challenge, are very worried about this last question in particular.

The referendum can, however, claim to have created a sense of stability in one important way: through the process itself. More than 18 million voters participated, over 40% of those eligible, waiting as long as three hours in some places on a hot day and yet were generally very pleased to be doing so.

“It is like a wedding,” one voter in Nasr City told me. “We all came out even though not everyone knows exactly why.” Many voters said exuberantly that it was the first time they ever participated in an election; previously, there was no point, most said, since the results were pre-determined. While there were some incidents of voting irregularities and disturbing cases of intimidation – including one against Mohamed al-Baradei himself – by and large the voting took place in a way that was free, fair, and transparent. Immediately after the results were issued, prominent opponents quickly acknowledged them.

The referendum succeeded in providing a genuine election to Egypt’s citizenry, and that in itself is a source of national stability. What the referendum requires, however, is another matter. It forces important new questions far too quickly and without the proper groundwork, threatening the integrity of the parliamentary and presidential elections that are soon to come. The referendum also creates uncertainties about the status of the current constitution. Unfortunately, these problems very well may jeopardize the ultimate goal of a new constitution worthy of the new Egypt.

–Kristen Stilt, Northwestern Law School

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Published on March 22, 2011
Author:          Filed under: constitutional amendment, Egypt, hp
 

Transition for a Constitution in Exile

In light of the momentous events in the Middle East, some may have missed an important story out of India: The Dalai Lama has announced his intention to retire and has asked for amendments to Tibet’s “Constitution” to allow him to do so. If accepted by the parliament, this would end centuries of theocratic rule among Tibetans, and mark a dramatic constitutional modernization. No doubt part of the strategic subtext is China’s assertion that it has the right to select any future reincarnation of the Dalai Lama, saying that such a person would be found “within the country.” The Chinese approach has been to simply wait until the 75-year old Dalai Lama passes on. As Tim Johnson argues in his recent book Tragedy in Crimson: How the Dalai Lama Won the World and Lost the Battle with China, Tibet’s leader has pursued a flexible strategy against overwhelming odds, but now faces the ultimate task of trying to ensure that his movement survives his own lifetime. In light of this, the constitutional reform effectively ending the office of the Dalai Lama seems a wise strategy.

This announcement gave new interest to elections being held today to elect a parliament and prime minister for Tibet’s Government-in-Exile. The Dalai Lama’s legacy will have been the democratization of the Tibetan movement; but this will also allow for new levels of contention between radicals and moderates that have heretofore been suppressed by the Dalai Lama’s own articulation of a middle way, seeking autonomy within China. Democracy can be messy, even in exile.

–TG

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Published on March 21, 2011
Author:          Filed under: China, hp, Tibet, Tom Ginsburg
 

The Indian Supreme Court and the Government of Pakistan

In a recent judgment issued just last week (Gopol Dass thr. Brother Anand Vir vs. Union of India & ANR, writ petition No. 16 of 2008), the Supreme Court of India addressed its decision directly to the Government of Pakistan. Speaking on behalf of an Indian citizen imprisoned in Pakistan since 1984, the Indian Supreme Court made an impassioned plea to Pakistani officials for his expeditious release.

The Court appealed to the conscience of the Government of Pakistan, and even began its decision with words of Faiz Ahmed Faiz, a celebrated Pakistani poet: “Qafas udaas hai yaaron sabaa se kuch to kaho; Kaheen to beher-e-khuda aaj zikr-e-yaar chale,” which in rough translation from its original Urdu means “the cage is sad, friend, say something to the breeze, the ocean of god is everywhere; today let us hear about friends.”

Recognizing that it could not compel Pakistani officials to do anything, the Court acknowledged that “we cannot give any directions to Pakistan authorities because we have no jurisdiction over them” (para. 8). The Court continued: “However, that does not prevent us from making a request to the Pakistani authorities to consider the appeal of the petitioner for releasing him on humanitarian grounds by remitting the remaining part of his sentence” (para. 9).

My first thought as I read the judgment was to wonder how the Court expected the Government of Pakistan to hear about the Court’s request. After all, the Court cannot simply mail a copy of its judgment to the Pakistani Government. I found the answer to my question at the very end of the decision: “Learned Solicitor General of India shall communicate this order to the Pakistan High Commissioner in India who is requested to communicate it to the concerned Pakistan authorities” (para. 15).

Courts write for many audiences, both internal and external to the state. Courts generally intend their words to speak to the litigants, the legal community, state authorities, and citizens. Courts may also intend their judgments to echo beyond their national borders and into the larger international legal community.

But the thought of a national court speaking directly to a foreign national government strikes me as unconventional, though not necessarily as wrong. For it appears that the Indian Supreme Court had what it deemed to be good reason for departing from convention in this instance, both to defend the interests of an Indian citizen and to accelerate the process of reconciliation between India and Pakistan. Still, while these may be laudable objectives, one must nonetheless weigh whether this is an appropriate role for a court to undertake.

This is not the first time the Indian Supreme Court has taken steps many might see as extraordinary. Indeed, India is widely perceived as home to the world’s most activist court; a Time Magazine column once famously suggested that the Indian Supreme Court “runs the country.”

Against this backdrop of blurred boundary separating law from politics in India, perhaps it is not as odd as we might think to see the Indian Supreme Court speaking directly to the Government of Pakistan.

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Published on March 20, 2011
Author:          Filed under: hp, Pakistan, Richard Albert, Supreme Court of India
 

Dispatch from Cairo: What the Egyptian Constitutional Amendment Referendum is Really About

Many Egyptians are intensely debating the pros and cons of the constitutional amendment referendum taking place here in Egypt on Saturday, March 19, but in these discussions, what would seem to be the most obvious topic is almost completely missing: the content of the amendments themselves. By and large, what the amendments actually purport to do is acceptable to opponents and supporters of the referendum insofar as the amendments substantially lower the bar to becoming a presidential candidate, limit the term of the presidency, make the emergency law much harder to impose, and pave the way for the drafting of a new constitution. (Tamir Moustafa has reported on the text of the amendments and so I will not review them here (although the drafting commission made one significant change recently: the Court of Cassation, and not the Supreme Constitutional Court, is the authority that decides the validity of membership in the People’s Assembly per Article 93.))

Only a few of the proposals are controversial in substance. For one, the amendment to Article 75 enhancing the rules relating to the nationality of the president and his (or her) parents and spouse has been criticized as an unnecessary extension to the presidency of rules applicable to the army and the diplomatic corp. Of more significance, the amendments do not require the next People’s Assembly and Shura Council to form a drafting committee for a new constitution in a transparent manner and they do not demand public participation in the drafting process itself. Rather, these ideals are left to the political process to enforce. And opponents of the referendum object to the requirement of Article 189 bis that the new constitution be written within six months of the initiation of the drafting process (which itself may not even be required, depending on how Article 189 and 189 bis are read together).

In general, though, the vigorous debates are taking place over larger issues, some principled and some consequential, that ultimately get at the question of just what does it mean, constitutionally, to have a revolution? Referendum opponents insist that the revolution abrogated the constitution in its entirety and that the Supreme Council of the Armed Forces (SCAF) had no authority to revive it in order to call for its amendment. “No!” a flurry of red signs posted around the cosmopolitan neighborhood of Zamalek read, on the grounds that the revolution rendered the old constitution null and void. According to this argument, recognizing the constitution even for the purpose of amending it is an impermissible return to the unacceptable past. But if Egyptian protesters can themselves abrogate a constitution, then several questions follow: how many protesters does it take to bring down a constitution? And how do we know exactly when it has happened? Can a constitution be abrogated by public protest while a regime remains in power, or vice versa?

In addition to these arguments about the death of the constitution, opponents claim that the amendment and referendum process are being done in an impermissible pre-January 25 style. The SCAF appointed the drafting committee, which was hardly a revolutionary group of men (the presence of one Muslim Brotherhood affiliate did not change that characterization, and may have even reinforced it), and they operated in secret. They more or less stuck to the task assigned to them, which was to create basically the same set of amendments that Mubarak offered in a final effort to remain in power. The referendum presents the slate of amendments as a single package to accept or reject in a patronizing tone of the past that suggests the leader knows best. The amendments themselves were not even available until quite recently, and while there has been some effort to discuss them in the press and on radio and television, the lack of time to develop a real national dialogue about the text and its implications means that many will not really understand what they are voting for. The process seems thrown together hastily: just today, the “official” Ahram newspaper listed locations of polling stations and printed an example of the actual ballot. More significantly, judges, who are supposed to oversee this referendum as they have done for parliamentary elections, complained that as late as yesterday they did not have instructions or details about their task. (Some, however, have argued that keeping judges ignorant of their locations and tasks until the final hour was intended to avert opportunities for fraud by the very judges entrusted with preventing it.)

On the other side, referendum supporters seem to rely on the presumption that the constitution was still in force when the SCAF took power and that it has the right, acting as the constitution’s extra-constitutional protector, to oversee its amendment. If the amendments are adopted, the revised constitution will be put back into effect, and will serve as the basic ground rules for the parliamentary elections that will follow in a few months and then, in a few more months after that, presidential elections. (While not explicit, the SCAF appears to envision elections taking place in that order). Then, a completely new constitution will be drafted, again in a relatively short period of time. Adopting the referendum is a quicker and surer way to move forward and away from Mubarak’s constitution; it will lead to a faster transition to civilian rule and to a new constitution than any other proposal on the table, they argue. The Muslim Brotherhood, which is officially and enthusiastically in favor of the referendum, is promoting these positives, announcing succinctly in its promotional banners like the one stretching across a road on the southwestern edge of Cairo that a “yes” vote will deliver four things that every Egyptian should want: a limited presidential term, judicial supervision of elections, the formation of a new constitution, and the abrogation of the state of emergency.

And yet there are real concerns about moving forward with an amended 1971 constitution, as the referendum envisions. The amendments do not add a constitutional role for the SCAF, although that could have been done, leaving its status unclear. If the SCAF is an extra-constitutional actor, is it even bound by the constitution? Or is it constrained by political forces, including the need for its own popular legitimacy, rather than by law? Can it later decide that ignoring or changing other aspects of the constitution is also the people’s will and act accordingly, without another referendum? If parliamentary and presidential elections take place under the supervision of the SCAF and with the revised 1971 constitution in place, can the entire process—including the drafting of the new constitution—later be challenged as unconstitutional? Some Supreme Constitutional Court judges, who would be the ones to receive such a challenge, are very worried about this last question in particular.

These arguments about the status of the current constitution and its ability to be amended also line up with practical concerns about who benefits from the process the referendum envisions. These concerns, unlike the constitutional ones I analyzed, are discussed openly in the press. Holding parliamentary elections in just a few months is seen to benefit the Muslim Brotherhood (and its newly-formed Justice and Freedom Party) and the National Democratic Party (which may reformulate under a new name) as the groups that are organized and ready to compete successfully in elections in the near term. Other new and fledgling parties argue that they will not be able to compete that quickly, and will lose out in the crucial elections that will form the parliament that will in turn oversee the drafting of a new constitution. The Muslim Brotherhood, however, has said that it will not aim to win more than about one-third of the seats in the first parliamentary elections following the referendum. Opponents of the referendum demand that the first step must be the drafting of a new constitution in a process that is fair, transparent, and attentive to public participation and dialogue. While that may ultimately result in a faster constitution, they focus more on process than speed and do not have a time table. By the subsequent parliamentary elections, they believe that they will be sufficiently established and ready to compete.

While many Egyptians are discussing the referendum openly and passionately, many surely are left out. The process has been so rushed that there has been little time to explain the details and implications of the amendments to those without the inclination or ability to follow carefully the complex arguments as they have unfolded over the past few weeks and this week in particular. Some may still feel that despite the revolution, they are not a part of the political process. “What does that have to do with me?” one young man answered when I asked him today how he would vote in the referendum. Another asked me what the referendum was about. When I told him, he said he would vote however “the people” were voting, although he did not yet know what that position was.

I will be out at polling stations on Saturday and will have more to report afterwards. The results are expected late Saturday or Sunday.

–Kristen Stilt, Northwestern Law School

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Published on March 19, 2011
Author:          Filed under: constitutional amendment, Egypt, hp, Kristen Stilt