Blog of the International Journal of Constitutional Law

The ECHR and ethnic discrimination in the Bosnia and Herzegovina constitution

The European Court of Human Rights had a holiday gift for Bosnia and Herzegovina’s smaller minority groups today. The story is widely reported; Deutsche Welle has coverage here. The court ruled that provisions of the country’s post-conflict constitution are discriminatory in violation of the European Convention on Human Rights. The suit in question, Sedjic and Finci v. Bosnia and Herzegovina [follow this link to retrieve the decision by name], was brought by two prominent politicians–one a Bosnian Jew, the other of Roma origin–who are both ineligible to serve as either members of the House of Peoples (the second legislative chamber) or co-presidents on account of their ethnicity. Both sets of offices are reserved for members of Bosnia and Herzegovina’s “constituent peoples”–namely, Bosniacs, Croats, and Serbs. (The presidency is a three-member body for which membership in one of three ethnic groups is a prerequisite. Here’s the actual offending language from Article V of the constitution of Bosnia and Herzegovina: “The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.”)

In the face of this sort of language, it is not difficult to see how the court reached the conclusion that it did. These sorts of explicit ethnic set-asides are not only literally discriminatory, but they also discriminate against groups that have historically suffered more than their fair share of abuse. The Strasbourg court can hardly be blamed for discharging its obligations under the Convention and, indeed, the Bosnian constitution, which provides explicitly that the Convention “shall apply directly” and “shall have priority over all other law.” (Logically, there would not seem to be any barrier to a constitution proclaiming its own inferiority to some other legal instrument, such as the Convention, but the effective result–namely, the use of one part of a constitution to strike down another part–is at least superficially a bit paradoxical.)

As the court itself acknowledged, though, the story is a bit more complicated than that. The goal of writing a workable constitution for a deeply divided post-conflict society is not an easy one, and there is a limited repertoire of theoretical approaches and practical tools for doing so. One of the best-known approaches is the theory of consociational democracy championed by UCSD’s Arend Lijphart. Lijphart has long argued for power-sharing in the form of divvying up public offices in such a way that all relevant groups are represented and thus have a stake in upholding the constitutional order.

The Strasbourg court is clearly aware that the Bosnia-Herzegovina constitution reflects a bargain among opposing forces, but it just as clearly takes a dim view of that bargain. It makes a point of mentioning that the constitution was drafted and adopted as part of the Dayton Accords “without the application of procedures which could have provided democratic legitimacy,” and that the specific provisions in question were included at the insistence of the parties to the conflict, notwithstanding the expression of human rights concerns by the international mediators involved. From the perspective of consociational democracy, however, the fact that the ethnic set-aside provisions were sought by the parties to the conflict is no reason to invalidate them. It suggests, instead, that those provisions may be crucial to the survival of the constitution as a whole.

Consociational democracy is not the only approach to constitution-building in post-conflict societies, and some scholars have argued vigorously that it is far from the best, but it is certainly a plausible one. Unfortunately, discrimination would appear to be an inevitable byproduct of setting aside high public offices on the basis of ethnicity or religion. Do the ends justify the means? Is it imprudent to rule such approaches entirely out of bounds on human rights grounds? Does the fragile nationhood of Bosnia and Herzegovina potentially rest upon the answers to these questions? These are not easy questions.

And on that upbeat note … happy holidays everyone!

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The Irish SC and Gay Rights

Last week the Irish Supreme Court handed down a significant decision in relation to the rights of gays and lesbians living in Ireland. In McD v. L [2009[ IESC 81, the Supreme Court held that in a dispute over legal guardianship and access, a male biological parents (and sperm donor) was in principle entitled to statutory rights of access, even though this ran contrary to a prior agreement with a child’s current parents and guardians (lesbian couple) and their wishes. (The issue of the child’s actual best interests was reminded for further determination by the High Court). The decision is obviously significant for what it does not do for the recognition of same-sex relationships in Ireland, but also for the scope for national-transnational “dialogue” under the European Convention on Human Rights. Contrary to the High Court, the Supreme Court held that the right to family life under Art 8 of the Convention was not relevant to the interpretation of the relevant statute, and in any event, according to some justices, as of now Strasbourg jurisprudence did not extend to recognizing same-sex couples and their children as a family unit entitled to de facto protection under Art 8. It was also not for the Irish High Court, according to these justices, to “anticipate” where Strasbourg jurisprudence might go in this context in the future (see e.g. Fennelly J. par 94).

–Rosalind Dixon

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UKSC rules on Jewish school admission criteria

As the New York Times and other media outlets report, on Wednesday, Dec. 16 the newly established UKSC released its landmark ruling in a case involving apparently discriminatory admission criteria by a Jewish school in North London. According to the traditional Orthodox Judaism definition, a person may be recognized as Jewish only if his or her mother was Jewish, or if he or she converted to Judaism via Orthodox conversion practices. A 12-year old applicant to the said Jewish school comes from a devout Jewish family, where the father is Jewish and the mother converted to Judaism via non-Orthodox (and thus supposedly more lenient) conversion process. There was no doubt about their substantive adherence to Jewish traditions. The school refused to admit the applicant on the basis of his questionable Jewishness, at least by the school’s Orthodox definition of “who is a Jew”. The UKSC applied extra-religious, general law equality norms to a religious community’s own membership criteria, thereby ruling that the school’s selective admission policy was unjustly discriminatory.

A broadly similar “who is a Jew” question has haunted Israeli constitutional law for decades. For a host of historical and political reasons, the Orthodox stream of the Jewish religion has long enjoyed the status of being the sole branch of Judaism formally recognized by the state. This exclusive status has enabled the Orthodox community to establish a near-monopoly over the supply of public religious services, and to impose rigid standards on the process of determining who is a Jew – a question that has crucial symbolic and practical implications as, according to Israel’s Law of Return, Jews who immigrate to Israel are entitled to a variety of benefits, including the right to immediate full citizenship. This has taken place while over two thirds of the world’s Jewry, on which Israel relies for essential symbolic, material, and strategic support, continues to live outside of Israel, and does not subscribe to the Orthodox stream of Judaism. As things now stand, the Israeli Supreme Court has recognized non-Orthodox conversion to Judaism performed outside of Israel but is yet to OK such conversions performed within Israel. In 2005, the Court recognized non-Orthodox ‘bypass’ conversions to Judaism performed de jure abroad. It held that a person who came to Israel as a non-Jew and, during a period of lawful residence there, underwent conversion in a recognized Jewish community abroad would be considered Jewish. This legitimized a practice referred to as “leap conversions” whereby residents of Israel may go abroad for a few days, undergo non-Orthodox conversion, and return to Israel as converted. So if you happen to think that American constitutional law of religion is somewhat convoluted, think again . . .


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Published on December 17, 2009
Author:          Filed under: Israel, Ran Hirschl, religion, United Kingdom

The Church and Constitutional Fidelity

Nearly a month ago, the Wall Street Journal carried an interesting story on the role of the Catholic Church in the Honduran constitutional crisis. The Church, as it turns out, supported the coup (a highly contested word in this context, I know) for which they received a fair amount of criticism from Zelayistas. In the WSJ interview, Honduran Cardinal had this to say:

“In our communiqué immediately following the event,” he explains, “we were
saying this was a constitutional removal of the president, and that we have to
learn from the mistakes, and we were calling for the reconciliation of the
country. That’s all that we did, but that very same day we were blamed as
golpistas, golpistas.”

Of course the role of the Church in Latin American politics has always been an intriguing question. The church is often charged with favoring the right (as opposed to “godless communism”) during the many of the cold war battles, but at other times (especially in Central America and especially the jesuits) it has supported the progressive causes of the left in the battle against inequality and poverty.

In the Honduran case, the Church seems to have taken a position on legal philosophy, suggesting that the constitutional text and its edicts should be supreme. Indeed, the Cardinal even lauded the military for protecting the document: “Now the army is respected, because they have dedicated themselves to the constitutional role of defending the law and the borders.” If we assume that the Cardinal’s position towards the constitution is not simply politics disguised as legal interpretation, then it raises some interesting questions.

Specifically, for me it recalled Sandy Levinson’s vivid distinction between a Protestant view of constitutional interpretation and the Catholic one in his book, Constitutional Faith. In broad terms, the Protestant view of interpretation is one that stays close to the text but allows nearly anyone to interpret it. In the Catholic view, the text is subordinated to official interpretation (doctrine), which is produced by a specific and hierarchical set of officials. It is interesting, then, — if only for kicks — to wonder how whether the Catholic clergy tend to adopt the same sort of interpretive philosophy in the political realm as they do in the religious one.

In the Honduran case, one would be tempted to see the Cardinal’s view as highly textualist since he supports the defense of the term limit imposed by the founders. However, it is also possible that the Cardinal is even more swayed by the Honduran Supreme Court’s affirmation of the term-limit provision (or even the army’s action!), in which case the Cardinal would be acting in a very “Catholic” way by deferring to doctrine. Perhaps another case, in which the text and doctrine are at odds, would provide us with a better answer as to the relationship between processes of political and religious interpretation in the church.

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Published on December 14, 2009
Author:          Filed under: constitutional interpretation, honduras, hp, religion, Zachary Elkins

Turkey’s Constitutional Court bans pro-Kurdish party

Under the 1982 Turkish Constitution, Turkey’s Constitutional Court – a stronghold of Kemalist-statist interests and an active defender of Turkey’s militant secularism – is vested with the power to order the closure of political parties whose agenda is found to be “in conflict with the indivisible integrity of the State with its territory and nation, human rights, national sovereignty, and the principles of the democratic and secular Republic” or when “the internal functioning and the decisions of political parties [is] contrary to the principles of democracy” (Article 143).

On Friday, December 11, the Court voted to shut down the pro-Kurdish Democratic Society Party (DTP) and banned dozens of members from joining other political parties for five years. It also expelled two of the party’s politicians, including Ahmet Turk, the DTP leader, from parliament. Various media outlets report that the court found the party guilty of co-operating with the Kurdistan Workers Party (PKK), which has been fighting for autonomy in Turkey’s mainly Kurdish southeast. The detailed reasoning for ruling has not yet been published. However, the Turkish newspaper Hurriyet reports that Hasim Kilic, the Constitutional Court CJ, said the party’s closure “was decided due to its connections with the terror organization and because it became a focal point of the activities against the country’s integrity.”

Over the last 26 years, reports our colleague Hootan Shambayati who studies Turkish constitutional politics at Bilkent University, Ankara, the Turkish Constitutional Court has ordered the closure of political parties on 19 occasions (seventeen of those since 1991). While some of these closures were based on technical grounds (e.g. parties’ failure to comply with certain bureaucratic standards), others were based on ideological grounds. For example, the Court dissolved several pro-Kurdish parties, and, most notably, two major Islamic parties – the Welfare (Refah) Party (1998) and the Virtue (Fazilet) Party (2001). In February 2003, the European Court of Human Rights dismissed an appeal against the Court’s ruling in the Refah dissolution case and concurred with the Court’s view of Shari’a norms as incompatible with core principles of democracy. In April 2008, the Court agreed to hear a challenge to the very constitutionality of the moderately religious AKP – Turkey’s ruling party over the last few years. In a widely publicized decision issued in July 2008, the Court came very close to banning the AKP but stopped just short of doing so; six of the eleven judges, one vote shy of the necessary seven votes, found the AKP platform unconstitutional. In so doing, the judges signaled that no further “Islamization” will be tolerated by the Court and by its secular and military establishment backers.

The ruling is not likely to be endorsed with open arms by the European Union, which had warned Turkey that banning the DTP would violate the rights of the Kurdish minority. Ironically, as one of my students suggested to me, it is quite likely that the Turkish Constitutional Court based its reasoning, at least in part, on the ECtHR. CJ Kilic recently said that: “A political party has to make a distinction between pro-terror and peaceful messages. The European Court of Human Rights is clear on this point.” CJ Kilic seems to refer to the ECtHR reasoning in the Herri Batasuna v. Spain case (July 2009), where it upheld the Spanish Constitutional Court’s ban on the Basque Batasuna party and its proxies for its assumed association with – and failure to condemn – a terrorist organization (ETA) despite not having acted illegally itself. These pro-ETA parties, ruled the ECtHR “contradicted the concept of a ‘democratic society’ and presented a major danger to Spain’s democracy.” The analogy between the two cases is questionable in many respects, so it’d be interesting to see whether the Turkish Constitutional Court actually cited the ECtHR’s Batasuna decision. If it did, as my student suggests, that would mean the ECtHR’s defense of democracy in one country (Spain) might have had a negative effect on democracy in another (Turkey).


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Published on December 12, 2009
Author:          Filed under: European Convention on Human Rights, Ran Hirschl, Turkey

Observations on Kenya’s Draft Constitution II: the “Birthers” were Right…

…about Barack Obama. Article 17(2) of the Draft provides that “A person born outside Kenya is a citizen if, at the date of the person’s birth, either the mother or the father of the person is a citizen . . . (a) who was born in Kenya.” In other words, if the draft passes, Obama becomes a Kenyan citizen, at least according to the Kenyans.

The current constitution of Kenya contains a similar provision in Article 90, but it only applies to those born outside Kenya after 11 December 1963, the date of independence. For those like Obama (b. 1961) born outside Kenya before independence with a Kenyan parent, Article 89 provides that they will become a citizen of the United Kingdom and Colonies or a “British protected person.” But that status required registration.

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Published on December 10, 2009
Author:          Filed under: hp; Tom Ginsburg, Kenya

Addendum to Iraq’s Election Quandary

The Speaker of Iraq’s Parliament acknowledge today the inevitability of a “constitutional and legislative vacuum” as a result of the unavoidable gap between the end of the current Parliament’s legislative term and the time before elections can be conducted and a new Parliament and government formed — about two months by the Speaker’s estimation. The Speaker called upon Iraq’s political and judicial institutions to “be ready to find legal mechanisms to deal with it,” and proposed maintaining the current Parliament until a new Parliament is formed.

The political and legal quandary Iraq finds itself in would be challenging for any democracy — much more so for a nascent one with living experience of only authoritarian rule. It is a testament to the development of democracy and the rule of law in Iraq that the starting point for consideration of a way out (or at least around) this challenge is the Constitution itself. Even as he proposed the continuation of the current Parliament, the Speaker was adamant that the matter could not be resolved by Parliament but had to be submitted to the Federal Supreme Court.

There is no provision in the Iraq Constitution for a caretaker government. Constitutional amendments require a national referendum, and therefore cannot be relied upon to solve the current predicament. Declaring a state of emergency is an option, but hardly a desirable one.

It may be that Iraqis will temporarily have to turn a blind eye to the letter of the law (it’s been done before), but I would invite contributors and readers of this blog to offer other possible solutions.

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Published on December 8, 2009
Author:          Filed under: constitutional politics, election, hp, iraq, Jason Gluck

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