President Mubarak has announced he will step down, supposedly in accordance with constitutional procedures in September. http://www.cnn.com/2011/WORLD/africa/02/01/egypt.protests/index.html?hpt=T1&iref=BN1 Many protesters, however, find this to be inadequate. Meanwhile some opposition figures assert they will help develop a drafting process for a new constitution. For a provocative recent paper discussing the disadvantages of group drafting of a constitution (as opposed to individuals or even foreigners), see “Constitutional Design in the Ancient World,” by Lanni and Vermeule, http://ssrn.com/abstract=1747087.
We have a new report on the protection of human dignity in national constitutional texts, available in the “Reports” section of the website under the “Rights” tab, or directly here. From what we can tell, the concept first appeared in the constitutions of Finland and Estonia in 1919 and spread rapidly after its adoption as a core concept of international human rights law after World War II. Over 70% of constitutions in force in 2000 included the concept. The report contains some samples of different types of references to the dignity concept.
Yesterday, the French Constitutional Council upheld a law prohibiting gay marriage. The ruling appears to be as much about the institutional relationship between courts and legislatures in France as it is about marriage itself.
In its short decision, the Constitutional Council made two points of note. First, the bundle of family rights preserved in the French constitutional tradition does not protect same-sex couples’ right to marry. Therefore, reasoned the Council, the legislature may prohibit gay marriage and instead require same-sex couples wishing to solemnize their relationship to enter into civil unions. [paras. 7-8] Second, the Council must respect the legislature’s judgment in choosing to treat same-sex and opposite-sex couples differently. [para. 9]
Late last year, in September 2010, Turkish voters approved by 58% of the vote a set of constitutional amendments, which included a court-packing plan that expanded the size of the Turkish Constitutional Court from eleven to seventeen seats (which I discussed here). Further changes are now on the horizon for the Constitutional Court. Earlier this month, the governing Justice and Development Party proposed legislation to alter the hierarchy of the Turkish judiciary.
Currently, the Turkish judiciary consists of a two-level court system, with trial courts at the bottom and appellate courts at the top. The four primary appellate courts—the Constitutional Court (Anayasa Mahkemesi), the Council of State (Danistay), the High Court (Yargitay), and the Military High Court (Askeri Yargitay)—have jurisdiction over different subject matters. The Constitutional Court reviews the constitutionality of laws, the Council of State hears appeals from lower administrative courts, the High Court has jurisdiction over civil and criminal appeals, and the Military High Court hears appeals from lower military tribunals. Under the current system, each appellate court is the final arbiter of cases within its subject-matter jurisdiction and no right of appeal exists from one appellate court to the other (though, under Article 152 of the Constitution, courts may refer a case to the Constitutional Court where the court is “convinced of the seriousness of a claim of unconstitutionality submitted by one of the parties”).
The proposed legislation would transform Turkey’s two-level judiciary into a three-level judiciary by placing the Turkish Constitutional Court at the top of the hierarchy. Under the proposed legislation, the Constitutional Court would become the highest court of appeal and would have jurisdiction to review, affirm, and overturn the decisions of the Council of State, the High Court, and the Military High Court, which would become intermediate courts of appeal.
Burhan Kuzu, the Chair of the Constitution Committee in the Turkish Parliament and a founding member of the governing party, explained that the proposed changes are intended to improve Turkey’s poor track record before the European Court of Human Rights (ECHR). According to Mr. Kuzu, if the Turkish Constitutional Court has jurisdiction to review the judgments of the other appellate courts, the Constitutional Court may correct an erroneous court ruling without the intervention of the ECHR, obviating any appeal to the ECHR.
But others believe ulterior motives lurk behind the proposed legislation. Notwithstanding any concerns about Turkey’s track record before the ECHR, why would the governing Justice and Development Party expand the jurisdiction and the authority of a court with which it has clashed repeatedly? After all, this same court was the target of a successful court-packing plan proposed by the governing party last September.
The secularists believe that the governing party, having successfully passed the court-packing plan, now wants to place the court at the top of the Turkish judiciary. Following the implementation of the court-packing plan, the once pro-secular Constitutional Court is expected to drift toward the pro-Islamist ideology of the governing party. And because the Court will likely start singing the governing party’s tune, the governing party has a powerful motive to expand the Court’s jurisdiction and ensure that the other appellate courts in the country fall in line with the Court’s newfound ideology.
The proposed legislation on the promotion of the Turkish Constitutional Court is still pending before the Constitution Committee in the Parliament.
— Ozan Varol, Chicago-Kent College of Law
The Iraq Federal Supreme Court (FSC), following a petition by Prime Minister Maliki’s office, has just ruled that independent commissions such as the Independent High Electoral Commission (IHEC) and the Central Bank of Iraq are to be attached to the executive branch. The ruling would seem to contradict the 2005 Constitution’s Chapter on Independent Commissions, which makes IHEC (as well as the Human Rights Commission and Public Integrity Commission) “subject to monitoring by the Council of Representatives” (the Iraqi Parliament). (Art. 102) The Central Bank is similarly made “responsible before the Council of Representatives.” (Art. 103) Despite this seemingly clear language, the FSC found Articles 102 and 103 ambiguous and ruled that the “nature” of IHEC’s and other similarly situated commissions’ work is “executive” and that “the subordination to the legislature contradicts the principle of separation of powers.” See, Iraq and Gulf Analysis, http://gulfanalysis.wordpress.com/2011/01/21/the-first-policies-of-the-new-maliki-government-attaching-the-independent-electoral-commission-to-the-executive/
From a legal standpoint the ruling is curious in that it uses a constitutional principle (separation of powers) to declare a constitutional provision unconstitutional. The ruling is even more tenuous in light of the fact that the Constitution attaches other institutions in the Independent Commissions chapter, such as the Endowment Commissions (Art. 103) and Martyr’s Foundation (Art. 104), to the Council of Ministers (the Iraqi executive) — evidencing thought and consideration by the drafters on which commissions should be responsible to the legislative branch and which to the executive.
The ruling would also seem to run afoul of the growing political preference in the wake of the March 2010 elections to disperse power within the executive branch and away from the Prime Minister’s office, as evidenced by a range of power-sharing proposals by Iraqiyya, the Kurdistan Alliance and ISCI during the government formation process. And finally, it contravenes the clear intentions of the previous parliament to clarify and solidify both the independence of the commissions and their relationship to the legislature. For example, the final report of the 2007 Constitutional Review Committee (of which all major political parties were members) included provisions that state:
• “Independent commissions shall be subject to the oversight of the Council of Representatives.”
• “Independent Commissions shall submit their annual budget and final accounts to the Council of Representatives after being scrutinized by the Board of Supreme Audit.”
• “The approval on appointing the heads of Independent Commissions shall be by the Council of Representative, by absolute majority of its members.”
• “. . . Heads of Independent Commissions shall be relieved by the Council of Representatives, by absolute majority of its members . . .”
• “An Independent Commission shall be cancelled by the Council of Representatives, by two thirds majority of the number of its members.”
• “The Federal Government . . . shall support the work of Independent Commissions in order to succeed in their tasks, with consideration to the independency of these commissions.”
The ruling has already generated substantial controversy in and outside Iraq, some critics going so far as to describe it as a “coup.” See, http://www.reuters.com/article/idUSTRE70M1MV20110123
The actual impact on the commissions themselves will not become clear until more is known about how the executive will manage/oversee them. Over the past two decades, the concept of the independent commission has taken on increased prominence in a growing number of constitutions and states. Commentators now often refer to them as a “4th branch” of government and the “integrity” branch by virtue of their role as protector of the system of government itself, its neutral monitoring, the promotion of transparency and accountability, and to make sure that politics is conducted on a level playing field. To effectively assume this role independent commissions require legal, political, financial and administrative independence, and must be insulated from partisan politics and the wishes or self interest of the executive or ruling party.
The Constitutional Review Committee amendments were intended, first and foremost, to constitutionalize these principles. At a time when Iraqis identify corruption as one of the most serious problems facing the nation; when one considers the pressure put on IHEC during the March 2010 elections cycle by virtue of contentious Debaathification decisions and the Prime Minister’s allegations of the manipulation of results by the electoral commission and demands for a recount; and the existential threats facing Iraq’s Christian and other minority communities – Iraq needs to protect and indeed bolster the independence of the Commission for Public Integrity, IHEC, the High Commission for Human Rights, and other commissions vital to the health of Iraq’s nascent democracy. Unfortunately, there are legitimate reasons to fear that the Federal Supreme Court’s ruling will instead further politicize and undermine these institutions.
For comparativists, South Africa is a gold mine. It offers comparative law scholars a rich repository of judgments that often develop in exquisite detail instructive comparisons between and among states.
Of course, this is not a matter of happenstance. South Africa’s constitutional text actually commands courts to compare in some instances and also invites courts to compare in others. In this respect, South Africa may be said to exhibit two modalities of comparison.
We may call the first one mandatory comparison: when interpreting the national bill of rights, a South African court must consider international law. This form of comparison requires the domestic court to compare how the domestic practice compares to the international standard set by the larger global community.
The second modality of comparison is discretionary comparison: when interpreting the national bill of rights, a South African court may consider foreign law. This permissive form of comparison invites, but does not require, the domestic court to compare how the domestic practice compares to the standard set by sister nations.
There also exists a third modality of comparison: prohibited comparison. This form of comparison–which expressly denies courts the power to compare–is perhaps best exhibited by a constitutional amendment recently proposed in the state of Arizona. Here is the text of the amendment:
In making judicial decisions, [courts] shall uphold and adhere to the law as provided in the United States Constitution, the Constitution of this State, the United States Code, federal regulations adopted pursuant to the United States Code, established common law, the laws of this State and rules adopted pursuant to the laws of this State and, if necessary, the laws of another State of the United States provided the law of the other State does not include international law. The courts shall not look to the legal precepts of other nations or cultures. The courts shall not consider international law. [italics added]
It is difficult to imagine rejecting comparisons more emphatically than this proposed amendment to Arizona’s Constitution. If this amendment passes, Arizona courts will be divested of the authority to consider either international or foreign law in reaching their judgments.
This third modality of the comparative enterprise–prohibited comparison–strikes me as unconventional and perhaps indeed unique in the western world. But I do not know for certain.
Do other national or subnational states expressly prohibit courts from relying on international or foreign law?
In November, the people of the State of Iowa voted not to retain three of their seven Supreme Court Justices. Nothing like this had ever happened before. The result received national and international attention, given the real dangers that the vote poses to separation of powers and an independent judiciary. The vote was largely caused by public dismay over the Court’s unanimous ruling, in the previous year, finding that Iowa must allow same-sex marriage. The vote against these Justices was close and the result was undoubtedly influenced by large amounts of money contributed by conservative out of state organizations. The four remaining Justices will be up for retention in subsequent years and Iowa must now fill the three vacancies through its “merit selection” process (a commission will nominate nine qualified candidates to the new Republican Governor who will select the three replacements).
What has transpired since the retention vote is that there are now calls to impeach the four remaining Justices before their future scheduled retention votes. Several Republican state legislators are contemplating the initiation of impeachment proceedings. This is distressing on a number of levels. First, it’s hard to think of a case where U.S. judges have been impeached simply because of a decision some people disagree with. Usually, serious malfeasance has been required. Second, it suggests that some in the Iowa legislature don’t view separation of powers or an independent judiciary as important values. Third, the Court now has to operate with little more than half of the Justices the Court needs to render a full compliment of decisions, with the shadow of impeachment over their shoulders.
Certainly many foreign nations have experienced situations where high court judges have been removed for issuing decisions that offend the government in power, under a variety of scenarios. But this is not the same as that. Indeed, Iowa’s situation seems less and more troubling in various ways. Several scholars have been discussing the issues raised by these developments. My Drake Law School colleague, Prof. Ian Bartrum, has argued that what transpired supports requiring a super-majority to not retain a Justice. Another colleague, Prof. Miguel Schor, opposes impeachment, but has written eloquently about the need for high courts in most countries and in states to engage in dialogue with the other branches, and to be careful about judicial supremacy.
I am struck by how these developments resonate with Gerald Rosenberg’s thesis that courts can create significant backlash when they advance far ahead of public opinion. Indeed, when Iowa’s newly selected Chief Justice gave his state of the judiciary speech in the legislature, the hostility towards him from some Republicans in the audience was palpable. However, public opinion was apparently just barely opposed to same-sex marriage. One thing is for sure — the debate in Iowa about the same-sex marriage decision, the retention result, future retention decisions, and impeachment will likely continue in some form. Fortunately, the Governor has announced he opposes impeachment, which may stem the tide on that question for the short run.
The Honduran congress has passed, by the required supermajority, a reform to constitutional Article 5 that refers to the requisites to call for a plebiscite or a referendum as well as to the scope of issues that can be decided using those mechanisms of direct democracy. In order to successfully amend Article 5, however, a supermajority vote of the next Congress (whose first session is on January 25) is needed. The new Article 5 would make it easier to call for a plebiscite or a referendum, for instance lowering from 6 to 2% the required number of persons from the national census that can call for a popular consultation using one of those instruments. The new Article 5 would also extend the scope of issues on which the people can directly decide, arguably opening the possibility to amend the currently “unamendable” issues in Article 374 that literally states that “it is impossible to reform, under any circumstance, the previous article [that refers to the process to amend the constitution], the current article, and the constitutional articles that refer to the form of government, the national territory, the presidential term limits, and the impossibility of presidential reelection …”.
Readers of this blog will remember that former president Zelaya’s fate was marked by his intention to eliminate the prohibition to be reelected (see previous posts on this issue). Leaving aside for the moment the politics surrounding the attempt to amend Article 5 (which are being hotly debated in Honduras right now), it is interesting to ask whether a reform to the requisites and scope of the instruments of direct democracy would make possible to amend an eternal clause. Of course, it is possible to argue that the people, as the sovereign, can “directly” decide on a constitutional change. But eternal clauses delegate a substantial power to constitutional judges who could (should?) also declare that the initiative to reform an eternal clause is unconstitutional. Is it actually possible (theoretically) to amend an eternal constitutional clause? Or is it necessary to adopt a new constitution, presumably after a political crisis, that excludes such clauses? In any case, the next Honduran congress will first to ratify the amendment to Article 5. If that is the case, and if a part of the people decides to call for a plebiscite or a referendum to amend the unamendable clauses of Article 374, Honduras may be again in the road to a constitutional crisis.
The Federal Constitutional Court of Germany will welcome a new judge in 2011: Prof. Dr. Susanna Baer, an enthusiastic comparativist whose work probes a number of fields including human rights, gender equality, law & religion, and legal theory.
Baer, who most recently held a professorship at the Humboldt University Berlin, has written a number of papers on comparative constitutional law, including a recent piece in the University of Toronto Law Journal entitled “Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism,” which is available here (subscription required). Her CV is available here, her publication list here, and her invited lectures here.
Baer previously earned a Master’s in Law from Michigan, where she also held a Cook Global Law Professorship last year. A recent press release from Michigan suggests that Baer will remain involved in some capacity at the Law School during her tenure at the Constitutional Court.
Congratulations to Judge-designate Prof. Dr. Baer!