Blog of the International Journal of Constitutional Law

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

Zimbabwe begins constitution-making

Zimbabwe officially began the constitution-making process yesterday, a key part of the power-sharing agreement between long-time President Robert Mugabe and opposition leader Morgan Tsvangirai. Look for this process
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Published on June 25, 2009
Author:          Filed under: Uncategorized

Iraq’s Constitutional Review

Iraq’s Constitutional Review Committee (CRC), a body empowered by Art. 142 of the Constitution to do a one-off comprehensive reexamination of Iraq’s Constitution, is set to present its list of proposed amendments to the Iraq Parliament within the next couple of weeks. Two and half years of work has resulted in a list of meaningful and substantial amendments on a wide ranging set of issues including the articulation of Iraq’s second chamber of parliament and the creation of a Constitutional Court. The Committee’s work, however, will likely be remembered more for what it failed to accomplish then what it achieved – the report is currently silent on the most critical issues facing Iraq today, including power-sharing between the central government and the Kurdistan region, hydrocarbon management and revenue sharing, executive power-sharing, and Iraq’s disputed internal boundaries. The CRC unsuccessfully engaged on each of these issues during its tenure and is now hoping political party leaders will take them on over the next two weeks (before the report is officially submitted to Parliament). Any agreements reached during that time will be reflected in the report. Agreement, however, is highly unlikely. If anything the national elections, slated to be held in January 2010, makes these issues even more highly charged and compromise less likely.

Iraq is therefore looking at the prospect of a January referendum on constitutional amendments, held concurrently with the national elections, which will address several important matters but will neglect those most critical to fashioning a true national compact. Iraq will carry on without these changes, which can be proposed later through the normal (though more difficult) amendment process or dealt with through legislation and/or political compromises. But an opportunity will have been missed.

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Published on June 24, 2009
Author:          Filed under: constitutional change, hp, Jason Gluck

Niger: Constitutional Court stands firm

Niger’s Constitutional Court rejected President Tandja’s attempt to hold a referendum in August over a proposed rewrite of the constitution to bypass term limits. The Court held, inter alia, that the procedural rules for delcaring a referendum had not been followed. Article 135 of Niger’s Constitution is fairly clear, in that a referendum is to be held only upon the failure to secure a 4/5 vote in the legislature. Tandja, knowing he might not secure that majority, decreed the August referendum unilaterally.

Tandja’s reaction remains to be seen. We may be in one of the rare moments when a court decision prevents a power hungry leader from acting in an unconstrained faction. Much of the time, of course, we do not observe such powerful court decisions, in part because the legislature or executive may avoid nconstitutional actions in the shadow of strong enforcement. But the Niger case allows us to watch the dynamics in real time…

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Published on June 15, 2009
Author:          Filed under: hp, term limits

Term Limits at Issue in Niger, Philippines

The role of term-limit extensions as a motive for constitutional change has been a consistent theme on this blog. We earlier commented on the proposal by Niger President Tandja to have a referendum on a new constitution to allow him to run again for office after his second term expires this year. That referendum is now set for August 4. While we take no position on what the voters of Niger ought to do, we do note that the timeline of less than two months is very short, given that the drafting committee for the proposed constitution has just begun its work. It seems impossible for the public to have sufficient time to analyze and debate the text before the referendum is held. Tandja has also disbanded parliament, causing protests and concern among the international community over the fate of democracy in Niger.

In other news, last week, the Philippines House of Representatives passed a resolution that would open the door for constitutional amendments. The current issue concerns the scope of foreign investment in certain sectors of the economy, but at the same time, the House has been pushing for procedural changes that would allow joint voting by both houses as a Constituent Assembly for constitutional changes. The proposal, known locally by the unfortunate nickname as Con-Ass, would allow the 200- member House to dominate the 23-member Senate. The real subtext, according to many observers, is President Arroyo’s desire to stay in office when her current term expires next year. The Constitution currently only allows one six-year term.

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Published on June 9, 2009
Author:          Filed under: hp, term limits, Tom Ginsburg

Afghanistan’s Constitutional Opera Continues…

May 22nd marked what should have been the end of President Karzai’s first term as President according to the 2004 constitution. As Tom Ginsburg noted in his March 31 post, the Supreme Court justified the continuation of Karzai’s term until August elections to “ensure national consensus and stability in the country.” The stability argument is an important one – and has largely won the day for the moment – but is a thin legal pretext.

The Supreme Court’s decision could be read to have justified almost any delay, a fact that Karzai’s opponents are starting to make hay of as election season kicks off. Some members of parliament continue to protest the decision, as one opposition spokesman stated: “We believe this government does not have any legitimacy from today on, but because of national interest and maintaining stability in the country, we will not launch any demonstrations.”

Has this decision helped the standing of the court in the larger battle over who interprets Afghanistan’s constitution? On one hand, you have many Afghans (and embassies) recognizing the court’s decision. On the other hand, the facile reasoning in the decision has deepened the sense that the court is not independent, further strengthing calls within the parliament for the creation of a constitutional court-like Commission for the Supervision of the Implementation of the Constitution, described in my previous post. So the battle continues…

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Published on May 26, 2009
Author:          Filed under: Afghanistan, Alex Thier, hp

The Nepali Process — a Victim of Politics

For most of the past three years Nepal has been hailed as a veritable success for its transition from monarchy to democracy, peace process, interim constitution, elections, and formation of a Constituent Assembly (CA). Now with its government collapsed and a total breakdown in the delivery of basic services to the people, Nepal’s constitution-making process is all but frozen and will likely fail to meet its March 2010 deadline for completion.

The constitutional gridlock is in large part a symptom of the greater political discord in Nepal. Many political stakeholders believe that the Unified Communist Party of Nepal – Maoist (UCPN-M) have treated their plurality in parliament (nearly 40% of the seats) as a mandate to govern as if a majority, and in doing so have alienated their coalition partners, turning them to what one Nepali insider called “defensive mode.” Whether functioning on the defensive or with a different political agenda, several of the other political parties have made it their objective to block the UCPN-M from governing, without regard for the impact of the impasse on the people.

The most recent flashpoints were the firing of the Chief of Army Staff and the subsequent resignation of the Prime Minister. On May 3 the UCPN-M led government decided to fire the Chief of Army Staff, the latest in a series of developments that call into question the stability and loyalty of Nepal’s army. Nepal’s President (a member of the Nepali Congress Party) immediately reinstated the Chief of Army Staff, a move the UCPN-M declared unconstitutional. In protest the UCPN-M Prime Minister resigned on May 4. The CA has since been unable to form a new government, while boycotts and protests have derailed the legislative and constitution-making processes.

All the while the security situation deteriorates, basic services are not reaching the population, and far down on the list of concerns – the constitution-making process remains all but frozen. The impasse, whenever and however it is resolved, will likely not be in time for a final constitution to be ratified by March 2010. As a result, one of three outcomes for the constitution-making process seems likely. First, deadlines could be ignored. Second, the CA could be granted a six-month extension (an option under the interim constitution but only in the case of a formal state of emergency). Or third, the interim constitution could itself be amended to extend the time for drafting and ratifying a permanent one.

Time extensions for constitution-making processes are not in and of themselves serious cause for concern. Nepal’s political stalemate and the inability of its leaders to put governing ahead of politics, however, are.

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Published on May 22, 2009
Author:          Filed under: hp, Jason Gluck, process

Niger President joins those seeking to extend term

In Niger, President Mamadou Tandja has joined the ranks of world leaders seeking to amend national constitutions to do away with term limitations. The 70-year old Tandja, coming to the end of his second term, has initiated plans to hold a referendum on a constitutional amendment to do away with term limits.

As we have pointed out previously, term limits are not obviously required as a matter of democratic theory, and indeed, can be seen as somewhat problematic in that they limit the public from retaining a popular ruler. For whatever reason, there has been a recent wave of attempts to end term limits on executive office, perhaps because of the period of time that has passed since the third wave of democratization crested in the 1990s. Presidents who took power under constitutions with two-term limits will just now be forced out of office.

Scholarly analysis of debates over presidential re-election has been infrequent, but one recent contribution is by John Carey of Dartmouth, who has authored a book chapter entitled “The Reelection Debate in Latin America” in a forthcoming book called NewPerspectives on Democracy in Latin America: Actors, Institutions and Practices (William Smith, ed., Blackwell, 2009) Carey traces the history of reelction debates, noting that Simon Bolivar himself changed his views on them to become more accomodating of extended rule by a single individual. Carey focuses attention on the mode by which term limits are removed, distinguishing situations in which reforms are brought about by negotiations with the opposition from those in which reelection is brought about by plebiscite. Carey specutlates that the constraints on presidental authority are likely to be weaker under the latter system.

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Published on May 10, 2009
Author:          Filed under: hp, term limits, Tom Ginsburg