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I·CONnect

Blog of the International Journal of Constitutional Law

Amending the Unamendable Constitutional Clauses in Honduras?

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.

JRF

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Published on January 14, 2011
Author:          Filed under: constitutional review, honduras, hp, Julio Rios-Figueroa, Latin America
 

A Comparativist Joins the German Constitutional Court

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!

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Published on January 9, 2011
Author:          Filed under: Federal Constitutional Court of Germany, Germany, hp, Richard Albert
 

The Canadian angle to the Ugandan High Court’s ruling

Follow-up on Tom’s very timely coverage of the Ugandan High Court decision forbidding a tabloid newspaper from publishing the names and pictures of suspected homosexuals (and urging that they be killed). The CBC reports on the Canadian angle to this story: the Ugandan decision cited with approval a 2002 Saskatchewan Court of Queen’s Bench decision upholding penalties imposed by the Saskatchewan Human Rights Commission upon a private individual who had taken out an anti-gay advertisement in a newspaper. As the CBC story points out – but the Ugandan ruling apparently does not – the Queen’s Bench ruling was later reversed by Saskatchewan’s Court of Appeal.

Presumably it comes as little surprise to readers of this blog to learn that a particular constitutional court has a sense of what its counterparts in other countries are doing. But is it slightly more surprising for a trial court in Uganda to know about trial court rulings from the Canadian plains?

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Published on January 6, 2011
Author:          Filed under: Canada, David Law, gay rights, hp, Uganda
 

Supreme Court Presidents: Administrative or Jurisprudential Influence?

The justices of the Mexican Supreme Court (MSC) have just elected, as they do every four years, a new president. Whereas the President of the US Supreme Court can exert considerable jurisprudential influence (with, for instance, its power to assign cases to fellow justices), the president of the MSC wields considerable influence over the administration of the judiciary but very little on the actual court decisions. Jurisprudentially, the president of the MSC is in charge of regulating the debate during the public deliberations of the court and, of course, participates in the deliberations and casts his vote. But not much else, since the assignment of cases to justices for drafting a decision is done seriatim and the president is actually taken out of the list. In contrast, the president of the MSC has a constitutional mandate to administer the human and material resources of the Supreme Court and is simultaneously the president of the Judicial Council, the body in charge of administrating the resources of the federal judiciary that is composed by a majority of judges elected by the Supreme Court.

The new MSC president, Juan Silva Meza, is a respected career judge, specialized in criminal law, who in recent years has mostly sided with the progressives in the court, voting in favor of due process and other kinds of rights, in favor of opting for the interruption of an undesired pregnancy, and in favor of same-sex marriages. This 2011 the MSC will decide important cases on privacy rights, the military jurisdiction, the separation of powers, and socio-economic rights. Both public opinion and the new president himself have in addition emphasized as one the main goals of the new presidency to enhance the transparency and efficiency in the administration of the huge budget that the judiciary enjoys.

There are not many (to my knowledge) comparative studies on the relative powers of Supreme and Constitutional court’s presidents. References would be welcome.

JRF

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Published on January 5, 2011
Author:          Filed under: constitutional design, hp, Julio Rios-Figueroa, Mexico, Supreme Court justices
 

Uganda High Court finds anti-gay discrimination, enjoins paper

Uganda has received a good deal of attention since anti-homosexual legislation was proposed in parliament in 2009. Though the legislation has still not been passed, the environment for gays in Uganda remains by all accounts harrowing. Today, the High Court ruled that a newspaper story which listed the names and addresses of homosexuals under the headline “Hang Them” violated constitutional rights, and issued an injunction against the paper.

–TG

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Published on January 4, 2011
Author:          Filed under: gay rights, hp, Uganda
 

An Argument for Venezuelan Exceptionalism:

This is a response to Miguel Schor’s timely and well thought out follow up to my post on the Venezuelan Enabling Act of 2010. Dr. Schor raises some excellent points regarding the way in which local events can be viewed contextually as part of a greater paradigm shift in Latin American politics. For my part, I too am cautiously optimistic that, in a very general sense, Latin American governments (both on the left and the right) are increasingly becoming more institutional and democratic.

However, I find the suggestion that Venezuela’s recent democratic woes be viewed as a return to form problematic. While “strong presidents sweep(ing) aside institutions to favor cronies” may have long been the mean in most of Latin America it was historically not so in Venezuela. From the fall of former dictator Marcos Perez Jimenez in 1958 until the late 1990s, Venezuela was seen as more the exception than the rule.

Perez Jimenez — known as ‘P.J.’ by the grateful foreign businessmen and local elites who profited from his highly liberalized, and minimally regulated, economy — fit the archetype of the tin pot right-wing dictator with strong ties to Washington. He let multinationals do as they pleased and was, rather predictably, loved for it up North. In 1954 Perez Jimenez received the Legion of Merit from US President Eisenhower for his “energy and firmness of purpose in the fight against communism,” while in 1955 he graced the cover of TIME magazine with the subtitle “From Buried Riches, a Golden Rule.”

But once Perez Jimenez was overthrown, and democracy reestablished, the country’s new leaders set up a system which became, to my knowledge, the longest continually functioning democracy in Latin American history. The Venezuelan Constitution of 1961 remained in force until Chavez rewrote it 1999*. As discussed previously in “Wiki-constitutionalism,” Latin America is a region where the average national constitution lasts for only around 10-12 years. As such, 38 years of continuous constitutional governance, with no suspensions, coups or undemocratic successions, stands out as a huge regional outlier.

Up until the 1990s, international observers spoke of “Venezuelan Exceptionalism” and marveled at how a stable democracy had survived for so long in such a bad neighborhood. While dictators in Patagonia were disappearing political dissidents, Bolivian and Ecuadorian presidents were consistently ousted by coup before finishing their terms, Mexico and Brazil were ruled by the military (or entrenched one party systems) and armed insurgencies destabilized Colombia and Peru – Caracas remained at peace and stable.

While shifts from left to right-wing governance (and vice-versa) in Latin America tended to be undemocratic, Venezuela saw the respective parties trade off turns at the helm for nearly four decades with remarkable restraint. Granted, these parties could act just as controversially as those of their neighbors. The Accion Democratica party (whose populist left-wing frontman Carlos Andres Perez incidentally passed away this week) was instrumental in founding OPEC and scandalously nationalized the oil and steel industries before it was trendy to do so. For their part, the right wing COPEI party shut down the Central University of Caracas for two years in a draconian response to left wing student protests. There were excesses, corruption and abuses on both sides, a lot of mudslinging, and a tradition of newly entrenched parties wastefully dismantling all the flagship projects of the previous administration (as happens in the United States as well.) Yet all of this took place without seriously compromising independent governmental institutions, the judiciary, or the electoral process.

This democratic past is what makes the current situation in Venezuela so ironic, and sad. I would venture that ‘Venezuelan Exceptionalism’ still exists, only that it has been turned upon its head. The region grows steadily more democratic and nations like Chile, Brazil and Mexico are unlikely to backslide because in doing so they would rob themselves of victories that have cost them dearly. Oil rich Venezuela, to whom democracy once came easily and early, remains the outlier.


* It was minimally and democratically amended in 1983

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Published on January 4, 2011
Author:          Filed under: Daniel Lansberg-Rodriguez, Miguel Schor, venezuela
 

What are the best books and articles of 2010?

I would like to follow up Tom’s suggestion that we look forward to what 2011 might bring us constitutionally speaking by taking a look back at 2010. Which monographs and articles written in 2010 are worth reading?

My suggestion is David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton U. Press 2010). It is a very cool and unusual study that analyzes in detail (and seeks to make sense of) the output of national high courts in Germany, Eastern Europe, France, Canada, and South Africa.

Here is why I think the book matters. It seeks to tease out what the job of courts is in a democracy by examining in detail what they do. This kind of empiricism is tough to do. It is a lot of work to read that many cases in detail. The conclusions are perhaps not surprising but they are important.

The argument is that the job of national high courts is to spread the values of a constitution throughout society: “[C]onstitutional judges often come near to being applied political theorists, carrying out a quite new type of political function (Robertson 1).” In fulfilling this mandate, judges create and rely on a body of judicial material, “part of what the French Conseil constitutionnel calls the bloc de constitutionnalité (Robertson 5).” In short, the right way to understand what it is that national high courts do is to examine and take seriously the common law of the constitution.

In an era when the common law output of the Supreme Court of the United States is coming under increasing criticism by originalists who, frankly, adopt a surprisingly civil law attitude by exalting constitutional text over precedent, we might want to reflect on why national high courts around the globe are busy building up and creating a common law of the constitution.

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Published on January 4, 2011
Author:          Filed under: Uncategorized
 

On this Day in the History of Comparative Constitutional Law

Forty-two years ago today in 1969, Canada bade farewell to Ivan Rand, a former Associate Justice of the Canadian Supreme Court, who passed away at age 84.

In his judgments, Rand made frequent and effective use of foreign legal and constitutional materials to decide matters of purely domestic law. He was an early advocate of the cross-national discourse in which High Court judges engage when they draw from each others’ work.

It would be a mistake, though, to regard Rand as a proponent of convergence, which sees high merit in constitutional courts gradually moving to common constructions of rights and liberties. Rand was a fiercely independent nationalist who took great pride in the distinctiveness of Canadian institutions. He would therefore reject just as often as he would adopt a foreign judicial construction, practice, or legal theory.

That Rand was a comparativist at a time when foreign comparisons were not very common raises an obvious question: why was Rand so favorably inclined to foreign comparisons?

One clue comes from his education. Rand, a Canadian by birth, earned his undergraduate law degree from Harvard Law School.

This is a significant point. Most Canadians who earn law degrees from American law schools, both then and perhaps also now, earn a Master’s degree in law, which typically takes only one year to complete. But in taking his undergraduate legal education in the United States, Rand was one of the relatively few Canadians who spent a full three years immersed in the study of a foreign legal jurisdiction.

It is perhaps no wonder, then, that Rand would later become a champion of the comparative enterprise.

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Published on January 3, 2011
Author:          Filed under: hp, Ivan Rand, Richard Albert, Supreme Court of Canada
 

Whither constitutions in 2011?

The turning of the year provides an opportunity to look back at 2010 and ahead at 2011. One of the big themes in 2010 was executive attempts to extend their stay in office: we observed various strategies in Georgia, Sri Lanka, the Philippines and elsewhere. Indeed, in the final week of the year, three countries’ parliaments introduced new measures to extend the terms of presidents. (Shameless self-promotion: Zach Elkins, James Melton and I have a draft paper on the topic here.) The recent cases: in Mozambique, the proposal is only in the drafting phases, as a parliamentary committee is examining the issue, and is believed to include an amendment that would allow President Guebuza to seek a third term. In Kazakhstan, parliament endorsed a proposal to allow President Nazarbayev to skip two elections, essentially extending his term through 2020. But even this extension pales compared with the announcement that Yemen’s parliament wished to mke President Saleh president for life.

The major event early in 2011 will be the January 9 referendum in Southern Sudan as to whether to remain part of Sudan or to form an independent nation. This was called for under the 2005 Naivasha Agreement between the government in Khartoum and the Sudan People’s Liberation Army/Movement. A simultaneous referendum will be held in Abyei on whether to become part of Southern Sudan. If successful, the referendum will lead to a new round of constitution-making in the south–and in Khartoum.

What else will 2011 hold? Reader thoughts are welcome.

–Tom Ginsburg

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Published on January 2, 2011
Author:          Filed under: hp, Sudan, term limits, Tom Ginsburg
 

Venezuelan Democracy in a broader context

I would like to follow up Daniel Lansberg-Rodriguez’s excellent post on the troubling state of democracy in Venezuela with a few observations placing the events in that nation in a broader context. One could argue that Venezuela is simply reverting to what has long been in the mean in Latin America which is that strong presidents sweep aside institutions to favor cronies and, in some cases, articulate a broader vision for the nation. Chávez is somewhat unusual in that he is a populist dictator on the left but there have been others (the Peruvian military dictatorship of late 60s and early 70s provides an example).

That said, the situation in Latin America is clearly very different in the twenty-first century than it had been in the twentieth century. If Chávez had sought to impose his populist solutions in the twentieth century, conservative forces with American formal or informal support would, in all likelihood, have overthrown him by now. The right would then have imposed a statist, crony capitalism, which, in turn, would have fueled a left-wing reaction. The politics of the region throughout much of the twentieth century (with some notable exceptions) was both bloody and ineffectual in solving collective action problems. Politics became, to borrow a phrase from the political scientist Guillermo O’Donnell, the impossible game.

In a region where income inequality is stark, the left is the natural ruling party. Historically, there have been at least two major problems with left-wing solutions to the region’s endemic problems, neither of which are fully present today. The first is that the left was long enamored of overly statist economic policies. Statist policies, both on the left and the right, facilitated the centralization of power, which, in turn, undermined formal constitutional provisions regarding checks and balances. This is no longer the case. The majority of the region’s leftist presidents and political parties understand that a different balance needs to be struck between government regulation and private markets.

The second (and this relates directly to what is occurring today in Venezuela) is that conservatives throughout Latin America with American support long undermined the possibility of political learning. Left wing programs have long been anathema to the right (the current criticisms of the tea party movement in the U.S. of President Obama’s policies pale in comparison), which successfully undermined democracy to prevent the left from taking power. This, in turn, turned the left to ever more radical solutions. Whatever else one might say about Fidel Castro, he took what he thought were the correct lessons from the C.I.A.’s involvement in the violent overthrow of a democratically elected leftist president in Guatemala in 1954. The point is that with the end of the cold war, American adventurism in the region is less likely and this opens the door to political learning. Chávez’s policies are a mistake but that is a lesson that the people of Venezuela may learn over time. It is not only the left that has to learn the lessons of the democratic game. The right, if it wishes to retake power, will need to articulate policies that resonate with voters instead of opting for a military putsch. While I am not sanguine about Venezuela in the short-term, I am cautiously optimistic about the long-term prospects for democracy and a commitment to constitutionalism both in that nation and in the region as a whole.

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Published on December 28, 2010
Author:          Filed under: Uncategorized