The constitutional text in a constitutional democracy does not necessarily constrain constitutional change. Quite the contrary, constitutional change in a constitutional democracy often occurs in ways that depart from the rigid procedures governing constitutional amendment enshrined in the text of the constitution. In this article, I illuminate this peculiar phenomenon in comparative perspective, drawing from the constitutional traditions of Canada, Germany, India, South Africa and the United States. In addition to illuminating distinctions in the amendment practices of liberal democratic constitutional states, I deploy those contrasts as a springboard to substantive insights about fundamental principles of statehood, namely sovereignty and legitimacy.
In light of the current crisis of Honduras, Chile’s constitutional plight represents an interesting, contrasting case.
While in Honduras the crisis started when the sitting President tried to bypass the Constitution’s prohibition against amendments aimed at allowing his own reelection, in Chile, a dictatorial regime managed to perpetuate important features of the military regime through the imposition of a Constitution which has only been reformed when both former opponents of the dictatorship and the political ‘inheritors’ of it have concluded an agreement.
Due to this dynamic, Chile’s Constitution of 1980 still exhibits important democratic deficits (most prominently, a ideologically ladden Bill of Rights and the requirement of a quorum of 4/7 of the actual members of Congres to ammend or derogate the most important legislation passed by Augusto Pinochet’s regime, the so-called ‘Leyes Orgánicas Constitucionales).
Given the illegitimate restraints on democratic self-government that the Constitution of 1980 imposes on Chile’s current democratic era, over the last years there have been repeated calls for the introduction of a new Constitution, notably by former President Eduardo Frei (who led the country between 1994 and 2000, and who is now running again for the presidential election of December, 2009).
The problem, however, is that the very Constitution of 1980 that many Chileans want to substitute for a more democratic one, forbids the executive or the legislative branches to call for a referendum aimed at asking the people if they want a New Constitution. Furthermore, the rules governing the ammendment of the Constitution (2/3 of actual members of Congress for the most important subject matters) make any constitutional ammendment not favored by the political inheritors of the dictatorship impossible. This has been the case with many democracy-enhancing ammendments which would have damage the privileged political position enjoyed by the latter.
In this context, the following question arises: How can a democratic polity deal with the anti-democratic constitutional legacy of an authoritarian regime without risking a huge constitutional crisis?
All eyes will be on Niger this Tuesday as President Mamadou Tandja goes ahead with a referendum to allow himself to rule for three more years after completing his constitutional mandate of two terms this December. Recall that when the Constitutional Court ruled his proposal unconstitutional earlier this summer, Tandja assumed emergency powers and disbanded parliament as well as the constitutional court. Given his tactics to date, it seems unlikely Tandja will allow himself to lose.
The international community has been fairly critical. France and the African Union have called on Tandja to abandon his plans. The EU has frozen aid, and ECOWAS is threatening sanctions. (With typical moral clarity, UN Secretary General Ban Ki-Moon has called for restraint and non-violence by all sides on election day.)
Here is a hypothetical. Suppose the military were to step in on Monday to prevent Tandja from going ahead with his referendum. Suppose further that the military then promptly installs a civilian as interim president and calls for new elections. What would be the reaction of the international community? Probably a great sense of relief. It is certainly hard to imagine calls for the return of Tandja to power. But how, precisely, is this hypo different from what happened in Honduras in late June?
President Zelaya, in my reading, did violate the terms of the Honduran constitution, which states fairly clearly that proposals for extension of a term result in immediate loss of office for the proposer. In contrast, nothing in Niger’s Constitution prevents the president from disbanding parliament, so long as elections are called within three months (and they will be held later in August). The president has authority to declare a state of exception and to call referenda. To be sure, the constitutional court is inviolable, and so Tandja has clearly violated the terms of the constitutional text, as well as its spirit, in disbanding the court. But I suspect this alone is not the source of the very different reactions of the international community to the two situations. Honduran President Zelaya is a Chavezista in a region with an extensive history of US-supported military coups. The Obama administration needs to demonstrate a new approach to the region. So the politics matter, and matter a good deal.
Perhaps I am wrong and the anti-coup principle would be evenly applied in Honduras and Niger. This would, in my view, encourage further extensions of the executive term. Without threat of punishment by the military, more executives will seek to hang on to power. Term limits become simply the opening bid in a game wherein the constitution can be manipulated by incumbents to allow themselves to retain office. De facto life-term presidents may be the lesser of two evils, but they may not be. We might alternatively recognize that there may be some circumstances in which a bloodless coup is the least bad alternative. The issue comes down to this: does the military have any legitimate role in constitutional enforcement?
First off, these are no doubt good times for the comparative study of constitutions. A blog devoted to comparative constitutional law and courts would have been a near-fantasy merely a decade ago. More than anything else, its establishment reflects the growing interest and tremendous advancement in the comparative study of law and courts over the last few years.
My “landmark decision of the week” title goes to the Supreme Court of Pakistan, which ruled on Friday, July 31 that the state of emergency imposed by former President Pervez Musharraf in 2007 was unconstitutional and declared invalid the appointments of judges he made during that period. The ruling was hardly surprising; the 14-member bench that delivered the decision was headed by the reinstated Chief Justice Iftikhar Mohammed Chaudhry, whose attempted ouster by Musharraf spurred much of the unrest that led to the Musharraf’s downfall. The ruling is filled with acclaim for judicial independence, democracy, and other such great ideals. “The constitution is supreme, and this decision will strengthen democracy and democratic institutions,” Chaudhry wrote in his decision. That the reinstated CJ Chaudhry presided over the Court that decides the legitimacy of his own ousting was not considered by the Court as an obstacle to rendering an unbiased ruling. The decision questions the legitimacy of the former CJ Abdul Hameed Dogar’s appointment as Chief Justice following the attempted ousting of CJ Chaudhry. The court added that rulings made by the judges who were improperly appointed could still stand, and told Parliament to decide which of the laws that Musharraf pushed through during the unconstitutional emergency could remain on the books. Musharraf (who resides in
It is important to note that since 1990 Pakistan has known several major regime changes and the Pakistan Supreme Court has played a key role in each of these radical transitions. The Court’s handling of politically charged cases over the last two decades provides a paradigmatic illustration of the strategic approach to judicial behavior. In May 2000, for example, it drew upon the doctrine of “state necessity” and the principle of salus populi suprema lex to unanimously validate the October 1999 the Musharraf-lead coup d’etat and ousting of PM Nawaz Sharif as having been necessary to spare the country from chaos and bankruptcy.
And there is another interesting aspect to the ruling. One contested measure that could come up for review is an ordinance – signed by Musharraf before the emergency – that granted amnesty in serious corruption cases to Zardari and his wife, the late former Prime Minister Benazir Bhutto. (The corruption charges relate to Bhutto’s era as prime-minister). This possibility plays to the hands of Nawaz Sharif (leader of the Pakistan Muslim League-N party) – the main political rival of Zardari (leader of the
In the last four months, at least one hundred judicial employees and close to fifty judges from all Venezuelan regions have been fired, suspended, or have suddenly resigned. Unionized judicial workers sounded the alarm on July 13th because the special Judicial Commission set up by Supreme Justice Tribunal (TSJ) to carry on this job, have not even informed most of those affected of the reasons of its decisions.
This last week, two more news gave a new dimension to the work of the Judicial Commission. The first is that one of the suspended judges said she was pressured by a superior to prohibit the head of a television channel, which is openly critic to the government, from leaving the country and was dismissed after she refused to do so. According to media reports, prosecutors have accused the head of the channel of usury and conspiracy to commit a crime – accusations stemming from the recent seizure of 24 new vehicles on his property. The TV executive denies any wrongdoing, saying the accusations are politically motivated, and that President Hugo Chavez is using prosecutors and judges to bring trumped-up charges against prominent opponents.
The second is that a few days ago the Venezuelan Attorney General submitted to the National Assembly, in which President Chavez enjoys more than a majority, a legislative proposal that according to most observers unduly limits freedom of expression. The legislative proposal, among other things, typifies as “media crimes”, to be sanctioned with fines and different prison terms, any activity that puts in risk “social peace, the security and independence of the nation, the public moral and public order”. The legislative proposal also punishes “the publication of false information” and publications that put in danger “the interests of the state”.
Unfortunately, allegations of politically motivated firings and suspensions of judicial workers are not a novel event in Venezuela. A year ago, on August 5th 2008, the Interamerican Human Rights Court decided in favor of three judges fired in 2003, who argued that their suspension was motivated by some decisions favoring opposition mayors and governors. The recent removal of judicial workers and the Attorney General’s legislative proposal take place in the context of President Chavez’s recent urge to speed up the passing of “revolutionary laws” in preparation of the rapidly approaching 10th anniversary of the Constitution of the Bolivarian Republic of Venezuela, to be held on December 5, 2009.
A recent decision of the Australian High Court has answered some questions about the source and scope of the federal spending power although many remain unresolved. Pape v Commissioner of Taxation  HCA 23 also is of interest for a range of other purposes, including the interface between federalism and other institutional arrangements and comparative constitutional method.
The Australian spending power has developed differently to that of the two most closely comparable federations, the US and Canada, in part because of the chance inclusion in the original Constitution of an express power to make conditional grants to the States. The existence of this provision undercut the incentive to develop a more general power as a source of authority for payments to sub-national orders of government outside areas of Commonwealth regulatory authority.
Even so, the source of Commonwealth power to spend has been a long-standing issue when (as increasingly is the case) the Commonwealth prefers to spend directly, rather than going through the States. Past skirmishes exposed, but failed to answer the doctrinal question whether the source of any such power is the requirement for parliamentary appropriation (secs 81, 83) or the general executive power. In either case, there were further questions about the scope of a spending power and whether legislation enacted under the ‘incidental’ power could provide regulatory support for expenditure.
Pape revived these issues in the context of a taxpayer challenge to legislation that provided for the payments of ‘bonuses’ to low and middle income taxpayers as part of a package of stimulus measures in response to the global financial crisis. The challenge failed, by a narrow majority of 4-3, but the reasons of the Court, delivered some months later, made the outcome something of a pyrrhic victory. For the moment, at least, the federal power to spend parallels Commonwealth legislative power, supplemented by whatever attaches to ‘the character and status of the Commonwealth as a national government…in a federation’. As a short-term, urgent response to the global crisis, the tax bonuses did so and the incidental power was sufficient to give them legislative force. The validity of a raft of other spending programs remains to be worked out in later cases.
Following Pape, it is clear that the source of the power to spend is the federal executive power. The case thus also takes its place in a chain of Australian authority on the executive power more generally. The problem is as it always has been to combine an understanding of the depth of the executive power (vis-à-vis the legislature, in a parliamentary system) with its breadth (vis-à-vis the States, in a federation). Considered as a challenge to executive spending, Pape raised only the second dimension of the executive power. But considered as a response to a fiscal emergency, it potentially also raised the first, which may assist to explain why the court failed to clearly distinguish between the two. If this interpretation is correct, the reasons of the majority are woefully inadequate for tackling the question of depth. No doubt this is another aspect of the doctrine that will be further clarified in due course.
It’s been a tough week for the German government. It was handed defeats by the constitutional court (Bundesverfassungsgericht) in two separate cases touching on the government’s authority to withhold information from parliament.
In 2006, the German parliament — on an initiative by opposition parties — constituted a parliamentary commission to investigate allegations that the German government and intelligence services had cooperated with US intelligence services in conducting “renditions” using German airports, and in the kidnapping and interrogation of German nationals in connection with the war on terror. The federal government — citing national security concerns — refused full cooperation with the committee’s investigation, instructing high level officials to limit their testimony, and refusing to hand over documents that had been requested by the committee. The government’s decision was challenged before the Constitutional Court by opposition parties.
The second case involved a similar issue. In 2006, several Green members of parliament had made use of the right of parliamentary deputies to question the federal government to ask whether German intelligence services were collecting information on members of the federal parliament (the question was inspired by a similar incident in Sweden). The federal government refused to answer, arguing that to do so would undermine national security by exposing the strategies and operations of the intelligence services. The members of parliament challenged the government’s position before the Constitutional Court.
In two separate decisions handed down this week, the Constitutional Court largely ruled in favor of the opposition challenges. In each decision (2 BvE 3/07 and 2 BvE 5/06), the court asserted that the separation of powers inherent in the Basic Law requires that a non-specific, blanket assertion of the need to protect national security cannot be used to limit the right of parliamentary inquiry. The Court argued that while the executive has a general right (and duty) to protect national security, which may require secrecy, it had failed to plausibly establish that secrecy was necessary in the current cases, in particular because some of the information could have been provided without exposing the inner workings of the intelligence services.
It is hard to say at this point what impact these decisions will have. On the one hand, the Court has handed an unambiguous victory to opposition parties, and the decisions clearly challenge broad claims of executive privilege. Moreover, the decisions are likely to be greeted with considerable popular support. At the same time, the Court was careful not to demand specific action on the part of the executive, nor did it provide very clear guidelines on the conditions under which the executive can (and cannot) assert executive privilege. As a result, their practical effect may be limited.
In a recent post (7/5/09), I reported and commented on the decision of the Delhi High Court in NAZ Foundation v. Government of NCT of Delhi & Ors, reading down 377 of the Indian Criminal Code, so as to apply only to “nonconsensual penile non-vaginal sex and penile non-vaginal sex involving minors” – a decision I suggested may come to be regarded as the “Lawrence of India”.
Since then, an appeal has been lodged against the decision by an individual astrologer named Suresh Kumar Kaushal (http://tinyurl.com/mkotbf) and the Supreme Court has voted to accept his petition to hear the matter –see http://tinyurl.com/nr6vs6
The identity of the appellant leaves open the possibility that, unless the government actively intervenes (on the likelihood of this, see http://tinyurl.com/nwf6ve), the Supreme Court might ultimately decide to dismiss the appeal on procedural grounds, or grounds of lack of jurisdiction, as, for example, the High Court of Australia did in Re McBain (2002) 209 CLR 372 (a case in which the Catholic Archbishops sought to appeal against a federal court ruling granting access to state-funded IVF services to single women and implicitly also lesbians) – see http://tinyurl.com/mxmoc9
Such a route certainly seems possible, given the willingness of the Indian Court, despite generally very broad standing rules, to use the requirements of standing as the basis for avoiding issues of great political sensitivity, such as whether the Indian government is required to preserve certain mosques (the Gyanvapi Masjid) or temples, such as the Vsihwanath temple at Varanasi or Krishna temple at Mathura.
However, the Court’s eagerness to hear the matter in a timely way (the hearing is set-down for next week), makes it seem more likely that it does intend to weigh in on the merits.
If that is right, despite strong religious sentiment on the issue in India, global trends (see my last post) predict that is likely to uphold the High Court’s judgment, or possibly even give the result reached by the High Court a more direct Constitutional basis, by striking-down and severing part of s 377. (Striking down the provision in its entirety seems less likely, given the gap it could create in the Code’s prohibition of certain non-consensual sexual activity.)
Lawrence itself also suggests that the Court might use the occasion to emphasize that Constitutional recognition of sexual freedom for gays and lesbians does not directly or inexorably require – or imply – the legal recognition of same-sex marriage. (There has seemingly been some attempt by advocates of gay marriage to make such a link in India, as a practical matter: see http://tinyurl.com/lu7xm9)
However one looks at it, the Supreme Court sequel is bound to be interesting – because astrologers aside, few of us can confidently predict how at least a semi-randomly drawn bench of 3 out of 31 justices will decide.
–Rosalind Dixon (with thanks to both Ambika Singh and Rishad Chowdry for helpful comments on the issues raised by the case.)
The constitutional fracas in Honduras is attracting a good deal of attention from comparative constitutional scholars, and deservedly so. One aspect of the entire mess that appears to have largely escaped attention–but raises a number of important questions with ramifications far beyond Honduras itself–is the relationship between domestic and supranational constitutional law.
Articles 19 through 21 of the Interamerican Democratic Charter, to which Honduras is bound by virtue of its membership in the Organization of American States (OAS), condemn any “unconstitutional alteration” or “unconstitutional interruption” of a “constitutional regime that seriously impairs the democratic order in a member state.” The Charter provides for various (diplomatic) actions that the OAS and its member states can or must take in response.
This sort of language – namely, a reference to “constitutionality” under domestic law, in a supranational legal document that itself possesses vaguely constitutional status – opens the proverbial can of worms. Here’s just one of those worms.
Who decides whether an “alteration” or “interruption” is “unconstitutional”? Presumably the relevant source of constitutional norms is the domestic constitution. And Article 184 of the Honduran Constitution does purport to give the Honduran Supreme Court “exclusive” authority when it comes to the constitutionality of laws.
But does that really settle the question of whether the “alteration”/”interruption” is “unconstitutional” for purposes of the Charter? It’s trivial, and only to be expected, for the leaders of a coup to install a puppet court to provide their actions with the imprimatur of legality. In that event, is the OAS really supposed to simply accept what the domestic court says, because the domestic constitution confers interpretive supremacy upon the domestic court? If so, wouldn’t the Charter be defeated by precisely the conditions that it is intended to address?
On the other hand, if domestic constitutional law does not conclusively resolve the Kompetenz-Kompetenz question and the OAS retains the right and/or obligation to “pierce the veil” of a sham court (so to speak), then there must be some standard for judging the adequacy of the domestic court, no? If so, what would that standard be, and what would its legal basis be? Do documents like the Charter necessarily presuppose the existence of supranational constitutional norms that may refer to domestic constitutional norms, but have a life and meaning of their own?