Iraq’s Constitutional Review Committee (CRC), a body empowered by Art. 142 of the Constitution to do a one-off comprehensive reexamination of Iraq’s Constitution, is set to present its list of proposed amendments to the Iraq Parliament within the next couple of weeks. Two and half years of work has resulted in a list of meaningful and substantial amendments on a wide ranging set of issues including the articulation of Iraq’s second chamber of parliament and the creation of a Constitutional Court. The Committee’s work, however, will likely be remembered more for what it failed to accomplish then what it achieved – the report is currently silent on the most critical issues facing Iraq today, including power-sharing between the central government and the Kurdistan region, hydrocarbon management and revenue sharing, executive power-sharing, and Iraq’s disputed internal boundaries. The CRC unsuccessfully engaged on each of these issues during its tenure and is now hoping political party leaders will take them on over the next two weeks (before the report is officially submitted to Parliament). Any agreements reached during that time will be reflected in the report. Agreement, however, is highly unlikely. If anything the national elections, slated to be held in January 2010, makes these issues even more highly charged and compromise less likely.
Iraq is therefore looking at the prospect of a January referendum on constitutional amendments, held concurrently with the national elections, which will address several important matters but will neglect those most critical to fashioning a true national compact. Iraq will carry on without these changes, which can be proposed later through the normal (though more difficult) amendment process or dealt with through legislation and/or political compromises. But an opportunity will have been missed.
Niger’s Constitutional Court rejected President Tandja’s attempt to hold a referendum in August over a proposed rewrite of the constitution to bypass term limits. The Court held, inter alia, that the procedural rules for delcaring a referendum had not been followed. Article 135 of Niger’s Constitution is fairly clear, in that a referendum is to be held only upon the failure to secure a 4/5 vote in the legislature. Tandja, knowing he might not secure that majority, decreed the August referendum unilaterally.
Tandja’s reaction remains to be seen. We may be in one of the rare moments when a court decision prevents a power hungry leader from acting in an unconstrained faction. Much of the time, of course, we do not observe such powerful court decisions, in part because the legislature or executive may avoid nconstitutional actions in the shadow of strong enforcement. But the Niger case allows us to watch the dynamics in real time…
The role of term-limit extensions as a motive for constitutional change has been a consistent theme on this blog. We earlier commented on the proposal by Niger President Tandja to have a referendum on a new constitution to allow him to run again for office after his second term expires this year. That referendum is now set for August 4. While we take no position on what the voters of Niger ought to do, we do note that the timeline of less than two months is very short, given that the drafting committee for the proposed constitution has just begun its work. It seems impossible for the public to have sufficient time to analyze and debate the text before the referendum is held. Tandja has also disbanded parliament, causing protests and concern among the international community over the fate of democracy in Niger.
In other news, last week, the Philippines House of Representatives passed a resolution that would open the door for constitutional amendments. The current issue concerns the scope of foreign investment in certain sectors of the economy, but at the same time, the House has been pushing for procedural changes that would allow joint voting by both houses as a Constituent Assembly for constitutional changes. The proposal, known locally by the unfortunate nickname as Con-Ass, would allow the 200- member House to dominate the 23-member Senate. The real subtext, according to many observers, is President Arroyo’s desire to stay in office when her current term expires next year. The Constitution currently only allows one six-year term.
May 22nd marked what should have been the end of President Karzai’s first term as President according to the 2004 constitution. As Tom Ginsburg noted in his March 31 post, the Supreme Court justified the continuation of Karzai’s term until August elections to “ensure national consensus and stability in the country.” The stability argument is an important one – and has largely won the day for the moment – but is a thin legal pretext.
The Supreme Court’s decision could be read to have justified almost any delay, a fact that Karzai’s opponents are starting to make hay of as election season kicks off. Some members of parliament continue to protest the decision, as one opposition spokesman stated: “We believe this government does not have any legitimacy from today on, but because of national interest and maintaining stability in the country, we will not launch any demonstrations.”
Has this decision helped the standing of the court in the larger battle over who interprets Afghanistan’s constitution? On one hand, you have many Afghans (and embassies) recognizing the court’s decision. On the other hand, the facile reasoning in the decision has deepened the sense that the court is not independent, further strengthing calls within the parliament for the creation of a constitutional court-like Commission for the Supervision of the Implementation of the Constitution, described in my previous post. So the battle continues…
For most of the past three years Nepal has been hailed as a veritable success for its transition from monarchy to democracy, peace process, interim constitution, elections, and formation of a Constituent Assembly (CA). Now with its government collapsed and a total breakdown in the delivery of basic services to the people, Nepal’s constitution-making process is all but frozen and will likely fail to meet its March 2010 deadline for completion.
The constitutional gridlock is in large part a symptom of the greater political discord in Nepal. Many political stakeholders believe that the Unified Communist Party of Nepal – Maoist (UCPN-M) have treated their plurality in parliament (nearly 40% of the seats) as a mandate to govern as if a majority, and in doing so have alienated their coalition partners, turning them to what one Nepali insider called “defensive mode.” Whether functioning on the defensive or with a different political agenda, several of the other political parties have made it their objective to block the UCPN-M from governing, without regard for the impact of the impasse on the people.
The most recent flashpoints were the firing of the Chief of Army Staff and the subsequent resignation of the Prime Minister. On May 3 the UCPN-M led government decided to fire the Chief of Army Staff, the latest in a series of developments that call into question the stability and loyalty of Nepal’s army. Nepal’s President (a member of the Nepali Congress Party) immediately reinstated the Chief of Army Staff, a move the UCPN-M declared unconstitutional. In protest the UCPN-M Prime Minister resigned on May 4. The CA has since been unable to form a new government, while boycotts and protests have derailed the legislative and constitution-making processes.
All the while the security situation deteriorates, basic services are not reaching the population, and far down on the list of concerns – the constitution-making process remains all but frozen. The impasse, whenever and however it is resolved, will likely not be in time for a final constitution to be ratified by March 2010. As a result, one of three outcomes for the constitution-making process seems likely. First, deadlines could be ignored. Second, the CA could be granted a six-month extension (an option under the interim constitution but only in the case of a formal state of emergency). Or third, the interim constitution could itself be amended to extend the time for drafting and ratifying a permanent one.
Time extensions for constitution-making processes are not in and of themselves serious cause for concern. Nepal’s political stalemate and the inability of its leaders to put governing ahead of politics, however, are.
In Niger, President Mamadou Tandja has joined the ranks of world leaders seeking to amend national constitutions to do away with term limitations. The 70-year old Tandja, coming to the end of his second term, has initiated plans to hold a referendum on a constitutional amendment to do away with term limits.
As we have pointed out previously, term limits are not obviously required as a matter of democratic theory, and indeed, can be seen as somewhat problematic in that they limit the public from retaining a popular ruler. For whatever reason, there has been a recent wave of attempts to end term limits on executive office, perhaps because of the period of time that has passed since the third wave of democratization crested in the 1990s. Presidents who took power under constitutions with two-term limits will just now be forced out of office.
Scholarly analysis of debates over presidential re-election has been infrequent, but one recent contribution is by John Carey of Dartmouth, who has authored a book chapter entitled “The Reelection Debate in Latin America” in a forthcoming book called NewPerspectives on Democracy in Latin America: Actors, Institutions and Practices (William Smith, ed., Blackwell, 2009) Carey traces the history of reelction debates, noting that Simon Bolivar himself changed his views on them to become more accomodating of extended rule by a single individual. Carey focuses attention on the mode by which term limits are removed, distinguishing situations in which reforms are brought about by negotiations with the opposition from those in which reelection is brought about by plebiscite. Carey specutlates that the constraints on presidental authority are likely to be weaker under the latter system.
We hope to expand the substantive coverage of topics in our forum beyond the processes of constitutional formation and issues of constitutional design, so as to also include constitutional cases and other topics of interest. We will soon welcome posts from Professor David Fontana of George Washington University Law School, one of the leading you comparative constitutional scholars in the United States. And hope to add even more commentators too…
Therese Sjöström of International IDEA writes with a query about constitutional provisions related to the police. This is not a subject on which there has been much attention, and as yet we have no general report on the police on our site. We hope that those of you with relevant experience or information will comment on this post, which we will then forward to any interested parties as well as posting here.
Regulating the police is of crucial importance, particularly in post-conflict situations. One obvious channel for regulating police behavior is the presence of criminal procedure provisions which are designed to control their behavior in dealing with criminal suspects. Beyond that, however, some constitutions have provisions regarding appointments, limitation of police powers, allocating of command authority (particularly important in federal systems with multiple police forces) and sometimes describing special police commissions. Some require non-partisanship (Burundi 1998, Art. 62) while others, such as Bolivia’s constitutional text provided below, allow individual officers to have party membership even if the institution as a whole must remain nonpartisan.
Title VIII of Bolivia’s Constitution has a nice concise set of provisions:
Article 215 I. As a public force, the National Police has the specific mission of defending society and preserving public order and the carrying out of laws throughout the national territory. It exercises the police function in an integral manner, under single command, in accordance with its Organic Law and the laws of the Republic.
II. As an institution, it does not deliberate or participate in political party activities, although, individually, its members enjoy and exercise their citizen rights in accordance with law.
Article 216 . The forces of the National Police are subordinate to the President of the Republic through the Minister of Government.
Article 217 . To be appointed Commander-General of the National Police, it is necessary to be Bolivian by birth, a General in the institution, and meet requirements specified by law.
Article 218. In the event of international war, the forces of the National Police shall become subordinate to the Commander-in-Chief of the Armed Forces for the duration of the conflict.
Again, if anyone knows of other good examples, please forward or comment here.
We have recently posted a new report on constitutional provisions on the Ombudsman. The ombudsman is originally a Scandinavian institution, dating at least back to Sweden’s 1809 constitutional settlement. But ombudsmen have become popular in many regions of the world, particularly with the spread of human rights movement in the postwar era. Over 20% of contemporary constitutions include an ombudsman of some type, though there is regional variation, with ombudsman institutions being relatively rare in the Middle East and East Asia.
Ombudsmen are empowered to challenge government actions that violate the rights of citizens, complementing and substituting for institutions of administrative law. In some sense the ombudsman can be seen as an alternative to a constitutional human rights commission, though a small number of constitutions (13 in our dataset) adopt both institutions. Ombudsmen powers also vary a good deal, ranging from mere recommendations to the ability to refer questions to the courts.
For more detail see the Reports tab of our website, www.constitutionmaking.org/reports.html, under the Regulatory and Oversight Bodies tab.