Blog of the International Journal of Constitutional Law

Observations on Kenya’s Draft Constitution I

Kenya’s draft constitution is now in a period of public comment. The draft is long—over 300 articles—and is all in all a very impressive piece of work. It features a semi-presidential system, an extensive bill of rights, and significant devolution of power to the local level. If adopted, it will represent a significant transformation of Kenya’s formal governance structure.

The process is that public comments will be collected until the middle of this month, followed by a three week period in which the Committee of Experts will make changes to the draft. The draft then goes to parliament, where it will be adopted unless a 2/3 majority votes to reject it.

There are several novel institutions in the Kenyan draft. One that caught my eye was the attempt to constitutionalize the reporting obligations to international human rights treaty bodies. Article 30(6) of the draft requires the State to report on time to international human rights bodies, and go through a type of notice and comment period before submitting them. The Article goes on to require the state to disseminate the General Comments and Recommendations of the international rights bodies concerning Kenya.

This institutional design seems to try to leverage the international human rights treaty bodies, which are better at generating information than enforcing norms. The reports will be generally made available to Kenyans. At the same time, the mechanism will raise the cost of obfuscation before those bodies, and so possibly make them more effective. Given Kenya’s recent history of ethnic conflict and human rights abuses, this would be a welcome development.

Another feature of the draft is the creation of a new Constitutional Court. However, the Court will only be the final court of decision with regard to electoral disputes. Other decisions of the Constitutional Court can be sent to the Supreme Court. This is a novel approach but not likely to function effectively.

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Published on December 7, 2009
Author:          Filed under: hp; Tom Ginsburg, Kenya

The Election Law Passed But Iraq Still Stands To Miss a Constitutional Dead Line

The impasse over Iraq’s election law has now caused United Nations officials to publicly admit what many have feared for weeks — Iraq is going to miss its constitutionally mandated deadline for parliamentary elections.

Delays this past summer and fall were do to two key disagreements among Iraqi law-makers: (1) whether to have open or closed list voting; and (2) how to deal with Iraq’s disputed territory of Kirkuk. The first issue was soundly resolved when Grand Ayatollah Sistani announced that it would be undemocratic to hold closed list elections (as Iraq did in 2005). Though most lawmakers privately would have prefered a closed list system (which is much easier to guarantee incumbents re-election) few were prepared to be seen going against Sistani (not to mention the general public’s preference for open lists). Kirkuk was much more difficult. Here the main disagreement was whether to go by 2005 or 2009 election registers – the latter being seen by Iraq Arabs as tainted do to the considerable migration of Kurds into Kirkuk, mostly since 2004. The dispute was not only about who should be able to vote, but what precedents would be set about voter eligibility and preferences with the backdrop of a likely future referendum over the final status of the territory itself. In the end a compromise was reached that uses the 2009 voter rolls but questions the validity of those roles and allows for post-election modification of results in the event an investigation proves any impropriety.

With Kirkuk and the open/closed list question resolved the Council of Representatives passed the election law on November 8, 2009 – Iraqis and internationals alike hailed the compromise and vote that ensured national elections before the January 31, 2010 constitutional deadline. The celebration, however, was short-lived. Vice-President Tariq al-Hashimi exercised his constitutional veto on November 18, the last day he could do so. (The Iraq Constitution permits any of the three members of the Presidency Council to veto a law within ten days of its passage.) The justification for his veto was that the law under-represented Iraqis living abroad, of which the vast majority are Sunni refugees living in Syria and Jordan.

On November 23, the Council of Representatives passed an amended law that corrected this under-representation, but made additional changes to the proportional seats for each province – the net effect of which was the possibility (depending on one’s reading of the law) of even fewer “Sunni” seats than under the first version of the law. Vice-President Hashimi promised a second veto if a solution could not be reached that accurately reflected the current proportional populations of each province – hardly an unreasonable position but one that would have meant even greater delay. After tense negotiations (and international pressure) Parliament announced today that it had reached a compromise. The Vice-President withheld his veto. The final legal hurdle to holding elections had been overcome.

Still, the damage from the delays has been done. The Parliament Speaker has said elections cannot take place until February or March 2010. The United Nations and the Iraqi Higher Election Commission agree. This presents one immediate constitutional dilemma and a second potential, and more serious, one.

First, Iraq’s Constitution requires that a new Parliament be elected 45 days before the conclusion of the sitting Parliament’s final term, which for this Parliament is March 15, 2010. By all accounts this deadline will be missed.

Second, and far more concerning, is the prospect elections will not be held before March 15. Such a contingency would portend an expired legislature and illegitimate government, with the only constitutional remedy being a declared state of emergency.

Iraq has weathered missed constitutional deadlines before (as discussed previously on this blog) with little damage to institutions or respect for constitutionalism and the rule of law. Still, one must be concerned that the missed dead lines might make it easier for elections to slip further — especially if it becomes clear that the powers-that-be stand to lose. Also of concern is what precedent an unconstitutional government continuing to exercise authority might set in a country just barely out of decades of authoritarian rule. It will be critical in the coming weeks and months for all of Iraq’s governing institutions – Parliament, the Council of Ministers, courts, and the Iraqi Higher Election Commission – to be seen as supporting and moving towards national elections at the earliest possible opportunity.

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Published on December 7, 2009
Author:          Filed under: constitutional law, election, hp, iraq, Jason Gluck

A constitutional conundrum in Fiji

There have been three coups in Fiji since independence. There have been two since the latest Constitution was enacted in 1997, following a respectable local constitution-making process. The Constitution was reinstated after the first of these, in a remarkably docile response to a judicial decision that it had not effectively been abrogated. The regime that took office as a result of the second is still in place.

This coup was led by Commodore Bainimarama at the end of 2006. He claimed that the coup was prompted by actions of the incumbent Qarase government that, inter alia, were further deepening the racial divide. Initially, a façade was maintained that the Constitution was still in force. Through a complicated chain of events, the Qarase government was removed and Bainimarama was installed as the effective Prime Minister. Even though the office of President as established by the Constitution is non-executive in character, these steps were said to be taken under ‘direct presidential rule.’ A challenge to the validity of these arrangements was dismissed by the High Court of Fiji in Qarase v Bainimarama.

And here begins the conundrum. Doctrinally, the Qarase decision was dreadful, recognising an expansive view of prerogative power that set an undesirable precedent, not only in Fiji but elsewhere in the common law world. On the other hand, it left the rest of the Constitution, including its other institutions, in place. On appeal, the decision was overturned by the Court of Appeal. The reasoning in this decision is much more doctrinally orthodox. The Court issued declarations that effectively declared the new regime unlawful and encouraged new elections to be held.

The immediate result was that the Constitution was abrogated; judges and most other constitutional office-holders were dismissed; authority was concentrated in the cabinet. Intra-Fijian dialogue on the way forward became less inclusive. And so things remain. Bainimarama promises non-communal elections in 2014. Commonwealth countries scold. China has increased its foreign aid. Within Fiji itself, opinion is divided.

Time will tell whether the Bainimarama regime ultimately will be judged to have been good or bad. The level of repression of civil liberties does not augur well. On the other hand, if the rule of law and democracy is restored in Fiji at a later date under conditions that diminish the racial divide in public life and assist to break the coup cycle, it will be a great achievement.

For constitutional lawyers, these events raise another question, about the role of the courts. Even if, as I would argue, the Court of Appeal was right in law, could it and should it have softened the blow, to make its orders more palatable? This question is further complicated by the fact that all the judges (and most of the counsel) involved in the appeal were Australian; whereas all the High Court judges came from Fiji. If nothing else, the Qarase litigation prompts reflection about the implications (both good and bad) of using foreign judges in constitutional cases, which is common in Pacific states.

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Published on December 7, 2009
Author:          Filed under: Cheryl Saunders, hp

Iraq’s Elections

The impasse over Iraq’s election law has now caused UN officials to publicly admit what many have known for weeks — Iraq is going to miss its constitutionally mandated deadline for parliamentary elections.

At first it was disagreement over how to handle Iraq’s disputed territory of Kirkuk that prevented parliamentarians from passing an election law for the January 2010 national elections – the

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Published on December 4, 2009
Author:          Filed under: Uncategorized

The ECHR and the new Swiss constitutional ban on minarets

The decision by Swiss voters, by a 57.5% margin, to ratify a constitutional amendment backed by nationalist parties that bans the construction of new minarets is not a proud moment for Switzerland. It is hard to see what motivation could lie behind popular ratification of the amendment except old-fashioned religious prejudice. Perhaps precisely for this reason, the Swiss government seems both embarrassed of its own citizens and greatly vexed by the diplomatic fallout, which has already included a rebuke from the UN High Commissioner for Human Rights (who is, conveniently, based in Switzerland).

The interesting part for those who follow judicial politics is the widely discussed (and, it would seem, reasonably likely) prospect of intervention by the European Court of Human Rights (ECHR). Although Swiss voters rejected membership in the European Union by an overwhelming margin a few years ago, Switzerland has been a member of the Council of Europe for decades and is thus subject to the jurisdiction of the ECHR.

The prospect of ECHR intervention in this particular instance illustrates a few closely related and increasingly apparent phenomena: the internationalization of constitutional law, the constitutionalization of international law, and the judicialization of politics.

(1) The internationalization of constitutional law: Here, domestic constitutional law is longer the last word within the domestic legal system. The applicable “constitutional law” in this case, defined as the higher law to which all other laws must yield, is likely to prove transnational in character, in the form of the European Convention on Human Rights. (Note, too, that this is not happening in the context of the European Union, where the member states have already ceded substantial policymaking authority to the union, and one might thus expect that the governing law would be transnational rather than national in character. The Council of Europe is more like a loose club than a supranational government or pooling of sovereignty.)

(2) The constitutionalization of international law: Note the sheer difficulty of distinguishing treaty law from constitutional law in a meaningful way here. From the property rights provisions in NAFTA that override the Calvo Clause of the Mexican Constitution to the prospect that a human rights treaty will prevent Switzerland from amending its constitution to discriminate against Muslims, it is reasonable to question what, if any, useful purpose is served by an analytical distinction between treaty law and domestic constitutional law.

(3) The judicialization of politics: The popular passage of a constitutional amendment that is opposed by the government gives the government a short-term incentive to support the judicialization of politics. Over the long run, the Swiss government, and other national governments, might not be happy to cede a constitutional policy veto to the ECHR, which has seemed at times to veer between excessive deference and overly exacting scrutiny. But in this case, it seems clear from the Swiss foreign minister’s comments that she would welcome intervention by the ECHR. And she is surely not the only Swiss official who is desperately hoping that the ECHR will step in and do what the Swiss government itself cannot do–at least, not without a little supranational judicial help.

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Honduras vote coming in…

and it looks like the conservatives have won. The crisis, however, is likely not over, with most South American nations continuing to assert that the election results are not to be recognized.

From the beginning, the Honduras affair has defied conventional political analysis. The term “coup” continues to be used as an epithet, but the course of events hardly fit our conventional imagery of what a coup d’etat entails. Typically a coup involves a military seizing power without any legal justification, installing one of their own as leader, and reluctantly handing power back to civilians after international pressure. The Honduran military stepped in to enforce a decision of the Supreme Court, installed an interim leader from the same party as the deposed Zelaya, and has stood on the sidelines while the interim government organized an election that was then won by the opposition political party. To be sure, the election would have been more convincing had the international community thrown its full support behind it and encouraged all factions to participate. But one has the lingering image that the reaction of the OAS states, rooted above all in their own domestic memories, has exacerbated a bad situation rather than help resolve it.

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Published on November 30, 2009
Author:          Filed under: honduras, hp, Tom Ginsburg

A Win for Wal-Mart, in Canada of All Places

Last week I wrote here about a landmark anti-privatization ruling by the Supreme Court of Israel. But those who thought the days of pro-business, neo-liberal jurisprudence were over, got a sobering reality check reminder last Friday, courtesy of the Supreme Court of Canada. A few years ago, the workers in a Wal-Mart store in the town of Jonquière, Quebec made headlines by voting to make it the first Wal-Mart store to be unionized in North America. The newly established union engaged in several fruitless collective bargaining sessions with Wal-Mart management, after which the Quebec Minister of Labour referred the dispute to arbitration. That very same day (what a co-incidence, one would think) Wal-Mart informed the employees of its decision to close the store. Approximately 190 employees lost their job. With millions of employees worldwide, reports the CBC, Wal-Mart has been fighting unionization in various Canadian courts and labour tribunals in recent years. Citing the cost of rising wages, Wal-Mart closed another outlet in Gatineau, Quebec last fall after workers secured their first union contract.

But apparently, the closure and dismissal of workers in Jonquière was legit, according to the Supreme Court of Canada’s ruling in two companion cases decided on Nov. 27. Store employees argued that the closure was a deliberate step taken by Wal Mart as part of a larger employer strategy of hindrance, intimidation and union busting. Employees filed complaints under the pertinent Quebec labour laws claiming to have lost their employment because of their union activities. They sought an order that they be reinstated in their jobs, an act that would require re-opening of the store. Following a series of decisions by lower courts and labour tribunals the case reached the Supreme Court.

In a 6:3 ruling, the Court held that there is no legislation in Quebec that obliges any employer to remain in business, even if it closes for “socially reprehensible” reasons. Wal Mart had shown the store’s closure to be genuine and permanent and that in itself, according to a long line of precedents, is “good and sufficient reason” within the meaning of the pertinent Quebec legislation to justify the closure and dismissal. In the absence of evidence to the contrary, there is no reason to question Wal-Mart’s position that the closure was genuine and unrelated to the precedent-setting unionization, to the collective bargaining deadlock or to the prospective arbitration. Even though freedom of association is protected by s. 2(d) of the Canadian Charter of Rights and Freedoms and a right to collective bargaining had been recognized in the jurisprudence, neither the Quebec Labour Code nor the Constitution warrants that every situation must be interpreted as reflecting animus toward workers rights. What is more, the majority held that as the store had been closed for a few years and Wal-Mart had no intention of reopening it, reinstatement of the dismissed employees is unrealistic. Thus no referral back to the arbitration board was deemed useful.

The dissenting opinion (written by the often-progressive Justice Abella) held that a dismissal in the case of the closing of a business can be scrutinized for anti union predisposition under the Quebec Labour Code; to suggest otherwise, J Abella wrote, represents a marked and arbitrary departure from the philosophical underpinnings, objectives and general scope of pertinent laws. Also of note is the dissenting vote of J Cromwell, who was appointed to the Court in 2008 by the generally pro-business Conservative Party government.

While the majority reasoning may be sound from an intra-legal standpoint, it appears quite formalistic. The specific circumstances of this case and its symbolic importance surely warranted a more substantive analysis of the power-relations context within which this dispute arose. In that respect, one wonders whether what the now largely out-of-vogue Critical Legal Studies movement had to say about anti-labour biases in constitutional rights jurisprudence has not lost its relevance after all.


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Published on November 29, 2009
Author:          Filed under: Canada, Labor rights, Ran Hirschl

Israeli Supreme Court says Privatized Prisons Unconstitutional

Until the early-1980s, Israel’s economy was one of the most centralized in the non-communist world. Over the last two decades, it has undergone considerable liberalization that at times amounted to a local version of an all-out Thatcherite neo-liberalism. During much of the 1990s, the Supreme Court was quite cooperative, granting property rights an elevated constitutional status, eroding the right to strike and collective bargaining, and pushing the right to basic education and childcare beyond the purview of human dignity.

This neoliberal, business-friendly interpretation of human dignity prompted fierce criticism by prominent legal academics in Israel. Some have even described the Court’s jurisprudence as “Lochnerisation” of Israeli constitutional law. The Court has taken note. While still a far cry from the progressive social rights jurisprudence in South Africa, India, or Brazil, the Court’s more recent jurisprudence on these matters is notably more balanced.

A pinnacle of this new jurisprudential line came earlier this week when the Supreme Court drew upon Basic Law: Human Dignity and Liberty to block a 2004 government plan that would have allowed a private contractor to build and operate a new prison near the southern city of Be’er Sheva. The arguments for such privatization replicated the economic rationale of similar initiatives in the United States, Germany and elsewhere. Essentially, the state would pay the franchisee $50 per day for each inmate, but would be spared the cost of building new prisons and expanding the Israel Prison Service’s staff.

In 2005, a petition was filed against the constitutionality of the prison privatization plan. On Nov. 19, 2009, a panel of nine justices, presided over by CJ Dorit Beinisch (replaced Aharon Barak in 2006), ruled (8:1) that a transfer of authority for managing a prison from the state to a private contractor whose sole aim is monetary profit would severely violate the prisoners’ basic human right to dignity and freedom. The Court held that the proposed plan to privatize prisons granted a private corporation an invasive authority over prisoners. For example, the manager of the private prison would have been authorized to sentence a prisoner to solitary confinement for as long as 48 hours, to order invasive inspections of a prisoner’s naked body and to authorize the use of reasonable force in order to search the prisoners. “When the power to incarcerate is transferred to a private corporation whose purpose is making money, the act of depriving a person of his liberty loses much of its legitimacy. Because of this loss of legitimacy, the violation of the prisoner’s right to liberty goes beyond the violation entailed in the incarceration itself” the Court held.

While the Court acknowledged the economic benefits of the privatization plan, the material aspect itself, it ruled, was not a key factor that the Court must consider when exercising its judicial review powers. As important value efficiency may be, CJ Beinisch wrote, it is not an absolute value when the most basic and important human rights for which the state is responsible are at stake. In a prison run by a private company, prisoners’ rights are undermined by the fact that they are transformed into a means of extracting profit.

Who would have thought that such a powerful statement (perhaps the first of its kind in the context of privatized prisons) against the pervasive “cult of efficiency” that drives commodification of social services would come from the Supreme Court of Israel of all constitutional courts worldwide.


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Published on November 21, 2009
Author:          Filed under: Israel, privatization, Ran Hirschl

Supreme Court of Canada v. detention of juveniles at Guantanamo Bay

Today the Supreme Court of Canada heard oral argument in Prime Minister of Canada et al. v. Omar Ahmed Khadr. Slate’s Dahlia Lithwick (a fellow Canadian, if I am not mistaken) has a very nice story about it here. In a nutshell, the Canadian Supreme Court is being asked to clean up the legal mess that the United States government has created by indefinitely detaining at Guantanamo Bay, without trial, a number of alleged unlawful enemy combatants who are aliens. One of those aliens happens to be a Canadian, Omar Khadr, who, at the age of 15, was captured by the United States government then subjected to various forms of what used to be called torture but is now known more euphemistically as “enhanced interrogation,” which apparently included being used as a mop for his own urine while his hands and feet were chained together behind his back. (If you’re trying to visualize it: in yoga, this is called “bow pose,” but without the chains or urine.) Khadr’s legal argument is that the Canadian government is obligated to lodge a formal diplomatic request with the United States government for his repatriation, in part because the Canadian government has been knowingly complicit in the horrific abuse (beg your pardon, “enhanced interrogation”) he has endured. The Conservative government of Prime Minister Stephen Harper is appealing a lower court judgment in Khadr’s favor.

Perhaps understandably, given that she is writing for an American audience, Lithwick does not mention that the need for judicial intevention stems at least in part from the fact that the Harper government (whose right-wing Conservative Party holds a minority of seats in Parliament and thus hangs onto power purely at the sufferance of Canada’s left-leaning opposition parties) has not been-how does one put this delicately, yet without actually concealing the moral bankruptcy of the Harper government’s conduct–quite as keen about civil rights, or quite as willing to deviate from the wishes of the United States, as its Liberal predecessors.

For you comparative constitutional law insiders/scholars out there, you might want to take a gander at C-SPAN’s footage of the oral argument. It runs three-and-a-half-hours-plus, but if you skip forward to the 2:31 mark, you’ll catch Sujit Choudhry of the University of Toronto Faculty of Law arguing as to the appropriateness of mandamus relief.

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Ethics for constitutional advisors?

This mornings NY Times reports that Peter Galbraith, advisor to the Kurdish government, was negotiating oil deals on his own behalf while helping to influence Iraq’s constitution-making process. The scale of Galbraith’s prospective gains, upwards of $100 million, are shocking. It is not clear that he had a conflict of interest with regard to Kurdish nationalists, but one would think that his financial interest should have been disclosed to Iraqi constitution-makers who might otherwise take his advice as being motivated by considerations of reason. At a minimum, this report should diminish his tired calls for a breakup of Iraq, which he repeated earlier this year to an audience that included many of the bloggers on this site.

Are they any ethical requirements for constitutional advisors? Certainly lawyers who engage in constitutional advice-giving would be most likely subject to professional ethical requirements in their home jurisdiction. But non-lawyers are not sbject to such rules, and it is hard to imagine any specific ethical requirements emerging, given the range of people who are involved in proferring advice. But constitution-makers certainly have a justified expectation that advisors would reveal potential conflicts of interest.

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Published on November 12, 2009
Author:          Filed under: ethics, hp, iraq, Tom Ginsburg