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I·CONnect

Blog of the International Journal of Constitutional Law

Honduras: When Constitutions Collide?

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?

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Will the Bolivian Constitutional Tribunal Rise From the Ashes?

During the first days of June 2009 the last member of the Bolivian Constitutional Tribunal (BCT), Silvia Salame Farjat, resigned. Judge Salame was the only active member of the BCT since November 2007, because the other four members of the Tribunal had either resigned (some under the threat of impeachment) or left when their ten year tenure expired. The BCT has not legally disappeared but it has actually ceased to operate, its budget has been sharply reduced, and its administrative operations have been kept to a minimum.

As of today, the future of the Bolivian Constitutional Tribunal is unclear. The new Bolivian constitution adopted in February 2009 establishes a very peculiar, probably unique, method of selection. Judges to the “Plurinational Constitutional Tribunal” are to be democratically elected for a six-year tenure with no possible reelection; they should represent both the ordinary justice system and the “originary” and peasant (i.e. indigenous) justice system (Arts. 197, 198, and 182, 183). Candidates should meet certain requirements, but a law degree is not necessarily one of them since having experience as an “originary authority” under the indigenous justice system can be enough. Civil and indigenous organizations can propose candidates for the Tribunal, but before the final vote by the people candidates must be pre-selected by a super majority of the National Assembly (art. 183). It will be very interesting to see how this peculiar system operates in practice given the debates on the “counter-majoritarian” difficulties posed by the indirect election of judges capable of nullifying unconstitutional legislation.

For this new system to become operational, however, transitory articles in the Bolivian Constitution call for the enactment of some regulatory laws within six months (e.g. the organic law of the BCT, a new electoral code), and then for the institutionalization of the Electoral Tribunal which is the organ in charge of calling for elections. Taking into account these steps, it is possible that the first universal election of the Bolivian Constitutional Judges does not take place within the next year but until 2011. Given this situation, some Bolivian politicians are calling for a temporary Congressional appointment of constitutional judges (the former method of selection in Bolivia), which would allow this organ to function and process the pending cases left in limbo after Judge Salame’s resignation.

Hopefully, the Bolivian Constitutional Tribunal will rise from its ashes. It was first established constitutionally in 1995 . During the decade it actually operated – January 1999 to February 2009- the TCB encouraged a surge of legal activity and a new profile for the Judiciary, deciding close to 20,000 cases, most of them revisions of amparos and habeas corpus suits decided by lower courts. It also made some noteworthy decisions limiting the power of the government in the economic and political realms (which, according to some observers, explain the government’s decision to dismantle the court). It will be interesting to follow the fate of the constitutional tribunal in Bolivia, one of the countries that have experienced “Constitutional Revolutions” in recent years in the region, along with Ecuador and Venezuela.

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Published on July 15, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America
 

Honduras: The Relevant Provisions

The discussion of Honduras’ constitutional crisis has focused on the military coup removing President Zelaya and installing a replacement. The coup raises intriguing issues concerning the Constitution of 1982 and its attempt to avoid the problem of extending the executive term beyond constitutional limitations. As we have frequently written about on this site, executive “overstay” has been a major problem in Latin America, as well as many other jurisdictions in recent years.

Honduras has a four year presidential term, with a “trigger” clause designed to prevent just the type of referendum Zelaya was proposing. The relevant provision of the Constitution, Article 239, reads as follows:

“A citizen who has held the title of the Executive Power may not be President or a Designate. He that violates this provision or advocates its amendment, as well as those that directly or indirectly support him, shall immediately cease to hold their respective offices and shall be disqualified for ten years from exercising any public function.”

The language seems fairly clear, and leads one to question the near universal demand from the international community for Zelaya’s reinstatement. To be sure, one can recognize that the president violated Article 239 while still opposing the method of Zelaya’s removal. But a true coup d’etat would likely have installed a military ruler, which is also forbidden by the Honduran Constitution. and one wonders whether all the members of the UN General Assembly were so concerned about the actual constitution of Honduras, as interpreted by the Honduran courts, rather than the military intervention.

One can also question the wisdom of a single four year term for the presidency. In another very different context, South Korea has considered allowing for a second term for the presidency, since every occupant of the office has found himself a lame duck fairly soon after election. Notwithstanding the wisdom of Honduras’ approach, my view is that the text favors Zelaya’s opponents.

–TG

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Published on July 8, 2009
Author:          Filed under: hp, term limits, Tom Ginsburg
 

The Lawrence of India?

In Lawrence, when Justice Kennedy surveyed practices regarding the criminalization of sodomy in comparable democracies, a notable omission from his analysis was India: it was clearly an outlier, compared to other major “free” constitutional democracies, in continuing to criminalize sodomy in 2004. This week, in NAZ Foundation v. Government of NCT of Delhi & Ors, the High Court of India effectively ended that outlier status, by delivering what will probably come to be regarded the Lawrence of India. See here.

The Delhi Court did not strike-down s. 377 of the Indian Criminal Code, but rather “read it down” so as to apply only to “nonconsensual penile non-vaginal sex (rape of a homosexual) and penile non-vaginal sex involving minors (pedophilia)”. The Delhi Court may also formally lack the capacity to bind prosecutors in the rest of the country. (This is contested.)

However, recent Canadian experience in the same-sex marriage contexts suggests that, given the reluctance of the Indian government to appeal (see here), the Delhi decision is likely at least within a couple of years to herald a new norm on gay and lesbian sex for the entire country. (On the Canadian pattern in this area, see the very useful summary by Peter Hogg – “The Constitution and Same-Sex Marriage”, 4 International Journal of Constitutional Law 712 (2006).

If this reading of the decision is right, several theories of constitutional comparison suggest that that the decision may also provide additional validation, albeit ex post, for Kennedy’s decision in Lawrence. On one theory, advocated by Jeremy Waldron, it could be seen to provide additional confirmation of an emerging global deliberative consensus that banning gay sex is morally wrong: see “Foreign Law and the Modern Ius Gentium,” 119 Harvard Law Review 129 (2005). Similarly, according to related theory developed by Eric Posner and Cass Sunstein, it could be seen to provide additional statistical confirmation of the likely correctness of this extant global consensus – by adding information about the views of one more (important) set of global minds: see “The Law of Other States, 29 Stanford Law Review 131 (2006).

The applicability of each theory also finds some support in the Delhi Court’s judgment. The Court, for example, makes extensive reference to foreign and international developments in reaching its decision – thereby providing support for an emerging deliberative consensus: see pars 53-59 of the decision. At the same time, it relies on constitutional grounds somewhat different to those relied on in the U.S. and Europe – namely both the formal equality before the law guarantee in Art 14 and anti-discrimination or equal protection clause in Art 15 of the Constitution, in addition to, not simply in conjunction with, the liberty clause in Art 21.

Even if one is not inclined to favor this kind of moral-cosmopolitan approach to constitutional comparison, in the context of a case such as Lawrence, the Indian decision could still be treated as providing some additional ex post support for the Lawrence decision, according to a “democratic theory of constitutional comparison” I set out in a recent article in Volume 46 of the American Journal of Comparative Law (2008). (In the article, I also discuss some other interesting uses the Court might have made of Indian experience, at an empirical level.)

According to this democratic theory of comparison, comparison by the Supreme Court (or other foreign appellate courts) to constitutional democracies that are closely comparable – both generally, and historically in a specific context – can help give the Court useful additional information about the likely existence and direction of social change, if any, within the U.S. in a given context. The theory is that domestic legislative trends are often a poor guide to evolving national understandings because legislative inertia often prevents legislatures from responding to changes on the ground– and within the U.S., legislative inertia of this kind tends to be highly cross-correlated, whereas across countries it is much less so.

Once one sees things in this light, the Delhi High Court decision can itself be seen as a response to legislative inertia within India – driven by internal divisions within the Congress Party and the political costs to it of addressing the issue (see the discussion on the split in the government’s stance on the issue, and the attempt by the Congress party to avoid having to respond in any way, either by way of appeal or legislative reversal: see here.

If that’s right, it then also suggests that the formal presence in 2004 of s. 377 in the Indian Criminal Code was itself likely the pure product of inertia, and so Kennedy was entitled to ignore s. 377 in his comparative analysis. At the very least, it suggests that Kennedy got the basic pace and direction of change rights when in it comes to attitudes towards gay and lesbian sexuality, even in constitutional democracies as deeply religious as the U.S. and India.

–Rosalind Dixon

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Published on July 5, 2009
Author:          Filed under: hp, India, Rosalind Dixon
 

Bullets not Ballots in Tegucigalpa

As readers of this space know, we have been following the evolving constitutional story in Honduras in recent months. The constitutional process erupted yesterday as the Honduran military pre-empted a scheduled referendum and ousted President Zelaya.

The question on the ballot was whether Hondurans should replace the constitution. Before polls opened, the military cast its vote (an influential one, no doubt) by putting Zelaya on a plane to Costa Rica (in his pajamas), cancelling the referendum, and engineering the selection of a new president by legislators in an inpromptu session of the legislature. The background story involves the President’s motives for for rewriting the constitution. That constitution, in effect since 1982 and amended in 20 of the 29 years of its existence by my count, has already doubled its life-expectancy (historically, Latin American constitutions have lasted about 15 years). Zelaya had sought a replacement of the constitution, ostensibly to update it, but critics had feared that he would use the process to allow for his re-election. Certainly, amending or replacing constitutional documents in order to do just that has a long history in Latin American constitutionalism.

Recently, that sort of updating has been accomplished rather peacefully. In the last 30 years, 15 or so Latin American republics have amended or replaced their constitution to allow for re-election of the sitting president without too much trouble or violence. That streak may be at an end. In that sense, the Honduran events illuminate the tension between democratic and constitutional stability. Yesterday’s military action ostensively preserves the formal continuity of the current constitution, while undermining any real sense of democratic stability.

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Published on June 29, 2009
Author:          Filed under: constitutional change, hp, Latin America, term limits, Zachary Elkins
 

A Short Referendum in Honduras

Readers of this space will recall our previous commentary on the Honduran referendum scheduled for today. The question on the ballot was whether or not to rewrite the Honduran constitution. Critics had suggested that the primary motivation for the constitutional replacement was an extension of President Zelaya’s term in office. Whatever the motivation, the results are in. The military, it seems, had the most influential (and only) vote: before the polls opened this morning, the military swept into the presidential palace, deposed the president, and engineered the selection of his replacement by the legislature. All in defense of the constitution, according to a statement by the Honduran Supreme Court. The constitution, it appears, has “survived.”
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Published on June 29, 2009
Author:          Filed under: hp
 

Zimbabwe begins constitution-making

Zimbabwe officially began the constitution-making process yesterday, a key part of the power-sharing agreement between long-time President Robert Mugabe and opposition leader Morgan Tsvangirai. Look for this process
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Published on June 25, 2009
Author:          Filed under: Uncategorized
 

Iraq’s Constitutional Review

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.

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Published on June 24, 2009
Author:          Filed under: constitutional change, hp, Jason Gluck
 

Niger: Constitutional Court stands firm

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…

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Published on June 15, 2009
Author:          Filed under: hp, term limits
 

Term Limits at Issue in Niger, Philippines

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.

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Published on June 9, 2009
Author:          Filed under: hp, term limits, Tom Ginsburg