Blog of the International Journal of Constitutional Law

New report on constitutional treatment of the environment

The Reports section of this website has a new report on constitutional treatment of the environment–look under the “Special Issue Domains” menu under the Reports tab. Constitutional treatment of the environment is a relatively recent phenomenon, but is now found in some 66% of texts. Some constitutions provide for a duty of the state to protect the environment or specific natural resources, while others frame the issue in terms of a right to enjoyment of the environment. See the full report for more details!

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Published on November 6, 2009
Author:          Filed under: environment, hp

The Honduran Crisis as Constitutional Inoculation?

It may be time to turn to some of the broader implications of the Honduran constitutional crisis now that a resolution to at least the immediate standoff is in sight.

In particular, what will be the fate of the Honduran constitution? Ironically, some have suggested that a constitutional convention to rewrite the document – the proposal of which set the events in motion — would somehow bring closure to recent events. The predominant argument for a constitutional convention is the hope that Hondurans would benefit from some sort of national dialogue about institutions (and, presumably, some sort of healing). It’s hard to imagine real dialogue, at least in the current environment, and it seems likely that the institutional result would be something not too different from the current constitution. Certainly, one should not expect the adoption of a plebiscitarian document along the lines of the Venezuelan constitution from a constituent body that looks anything like the current legislature.

Indeed, the current constitution seems to have a rather healthy store of legitimacy and staying power. Adopted in 1982 after a spell of authoritarianism, it has now lasted longer than any previous Honduran constitution and ten years longer than the life expectancy of the average constitution. More than that, it now appears to have been inoculated by not one, but two threats to its being. It is worth recalling that many of the same group that defended the constitution this time around had floated the idea of their own term-limit bypass in 1985 in order to allow President Suazo to run again. That failure seemed to have strengthened their resolve of Michelleti and company to squash President Zelaya’s end-run around term limits.

Does the latest defense constitute another dose of crisis antibodies, something that will further inhibit future crises? The argument makes sense. We know that the risk to constitutions shrinks as they age (they crystallize, not decay). We also know that elites can more easily coordinate to defend constitutions collectively if they have expectations that others will join them. Certainly the 1985 defense and the more recent episode would provide just this sort of coordination. The 1982 Honduran constitutions may well be here to stay,albeit with some obvious revisions such as mpeachment provisions. We’ll see.

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Published on November 5, 2009
Author:          Filed under: constitutional change, honduras, hp, Latin America, term limits, Zachary Elkins

The European Court of Human Rights says no to crucifixes in Italian classrooms

Short version of Lautsi v. Italy: an Italian mother of Finnish origin has two children in school. The classrooms in which her children are instructed have crucifixes prominently displayed. She unsuccessfully petitions the government to have them removed before seeking relief from the European Court of Human Rights. The court awards her 5,000 euros in damages. Cue public furor.

Here’s the UK Guardian’s take on the Italian reaction. The judgment itself is currently available only in French, but there is an English-language summary available in the form of this press release from the Court itself. The conflict here between principle and practice appears to be especially stark, and in an area where emotions run especially high. On the one hand, it’s easy to see that the crucifix is a common fixture in Italian life. On the other hand, things are supposed to be different for purposes of legal analysis when the government forces them down your throat. It is difficult enough to see how one can square the practice of classroom crucifixes with the language of Article 9 (freedom of thought, conscience, and religion) of the European Convention on Human Rights, which the Court is responsible for enforcing. But it is even harder to see how the practice can be squared with the more specific language of Protocol 1, Article 2, which provides that “the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

It is impossible to argue that crucifixes (and these are the Italian-style ones we’re talking about – the ones with an actual Jesus sculpted on them) lack religious character. And it certainly doesn’t enhance the appeal of the Italian government’s argument, either legally or politically, that the classroom crucifixes were originally made mandatory by Italy’s Fascist government in the 1920s (before the adoption of the current Italian constitution in 1948). Also worth mentioning: Lautsi, the plaintiff, had apparently relied in part upon an Italian Court of Cassation judgment of 2000 which held that the presence of crucifixes in election polling stations contravened Articles 19 and 21 of the Italian Constitution. (English-language discussion of the decision here.) One might think that case alone should have settled the matter in her favor before the Italian authorities, without necessitating recourse to the folks in Strasbourg.

Whether Italian politicians can be expected to acknowledge any of this, instead of simply pandering to public sentiment and scoring easy points by scapegoating a European court and rallying around the flag-I mean, crucifix–remains to be seen.

Also worthy of note: those in the comparative law field may be familiar with the name of at least one of the members of the seven-judge panel that decided this particular case – András Sajó, a distinguished comparative law scholar of the Central European University in Budapest, a frequent visitor at NYU Law School, and co-author of one of the leading comparative law texts (Dorsen et al., Comparative Constitutionalism, published by West). The Italian government is, not surprisingly, appealing the judgment to the court’s 17-judge Grand Chamber.

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Honduras crisis comes to a close

Honduras’ political crisis is coming to an end. Five months after being forced out of the country by the military, Manuel Zelaya will apparently be allowed to resume his term of office. The country’s election scheduled for later this month, in which Zelaya is not a candidate, will proceed as planned. I’d like to pose an open question to our bloggers and readers: what are the lessons of the crisis for constitutional design and constitutional politics?


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Published on November 1, 2009
Author:          Filed under: honduras, hp, Tom Ginsburg

Kuwait Constitutional Court Supports Female MPs

Kuwait’s Constitutional Court ruled Wednesday that two female MPs who refuse to wear the hijab would indeed be allowed to sit in the country’s parliament. The two women were among four elected this past May, the first women to serve in that capacity. Conservatives had challenged their election on the basis that they refused to wear the hijab, in defiance of a recent ruling by Kuwait’s fatwa department that Muslim women are required to do so. This is another interesting example of constitutional courts mediating between religion and constitutionalism, an important topic on which our own Ran Hirschl has a forthcoming book.

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Published on October 29, 2009
Author:          Filed under: hp, kuwait, Tom Ginsburg

Canadian Language Wars (yet again)

Canada is arguably one of the world capitals when it comes to language rights jurisprudence. The fundamental disagreements concerning the preferential status of French in Quebec vis-à-vis Canada’s commitment to bilingualism have been a perennial bone of constitutional contention over the last 30 years.

The formal status of English and French, as well as minority language education rights in the two languages are protected by s. 133 of the Constitution Act, 1867, and by ss. 16-22 & s. 23 of the Charter of Rights and Freedoms, 1982. Since the emergence of a nationalist movement in Quebec in the 1960s, and even more so since the rise to power of the Parti Quebecois in the mid-1970s, the Quebec provincial government has made a continuous effort to promote French and establish its status as the primary, or even sole, language in Quebec. In 1984, the Supreme Court of Canada ruled that the education provisions of Quebec’s Bill 101 (requiring that teaching in Quebec be in French only) contradicted s. 23 of the Charter and should, therefore, be struck down. In Ford v. Quebec (1988), the Court ruled that the provisions of Quebec’s Bill 101 requiring that public signs and advertisements may only be in French violated the Charter’s freedom of expression guarantee. It also ruled that a blanket use of an override declaration by the Quebec government (Bill 178) was an improper and invalid application of the Charter’s “override clause” (section 33 of the Charter). At the same time, the Court has issued a series of rulings protecting the status of French and French education in predominantly anglophone settings, from Alberta to Manitoba, and from PEI to New Brunswick. But the language question in Quebec continues to linger.

In 2005, the Supreme Court of Canada revisited the tension between Quebec’s Bill 101 and the Charter’s section 23, when it ruled unanimously that in determining a child’s entitlement to minority language education (in this case, education in English in Quebec), section 23 must receive a broad interpretation consistent with the constitutional objective of protecting minority language communities. The requirement in Bill 101 that a “major part” of a child’s past educational experience be conducted in English in order to be entitled for further English education must involve a nuanced qualitative, not a strict quantitative, assessment.

On October 22, 2009, another landmark Supreme Court ruling on the matter was released. Under s. 23(2) of the Charter, citizens of Canada of whom any child is receiving or has received instruction in the language of the linguistic minority (in Quebec, that would be English) may have all their children receive primary and secondary school instruction in that language. Quebec’s Charter of the French Language establishes that, in principle, French is the common official language of instruction in elementary and secondary schools in Quebec, but allows for children with some history of schooling in English to receive instruction in English in a public or subsidized private school in Quebec. That provision created a loophole that essentially allowed parents whose children were not entitled to instruction in English to send one or more of their children to unsubsidized private “bridging schools” (écoles passerelles) in English for a year so that they would then be eligible to attend publicly funded English schools.

In 2002, two new paragraphs (AKA Bill 104) were added to Quebec’s Charter of the French Language in response to that loophole. It suggested periods of attendance in such “bridging schools” as qualifying children for public education in English should be disregarded. A group of Quebec parents, naturalized immigrants of Asian origins (i.e. neither francophone nor anglophone background) argued that Bill 104 violated their constitutional rights as it effectively closed the only way open to them to acquire public education in English.

Drawing on a typical “section 1” analysis (the Canadian version of what has been dubbed “proportionality”), the Supreme Court ruled unanimously that Bill 104 was “excessive” in its infringement upon parents and children’s minority language education rights. The court also held that the loophole affected few students and that it did not pose a threat to the vitality of the French language in the province. The Court thus granted the government of Quebec a year to amend the law in a way that would balance more adequately between the preferential status of French in Quebec and minority language education rights in that province.

Quite predictably, the ruling awakened some nationalist sentiments in Quebec. Some of it is no doubt authentic. But part of it politically driven. The current Premier, Jean Charest of the moderate Liberal Party is portrayed by the Parti Qubecois opposition as too soft on Quebec sovereignty issues. The opposition’s staged outrage is thus meant in no small part to capitalize on the Court’s anti-Quebec decision to denigrate Charest politically. The opposition leader, Pauline Marois, said Charest had a duty, as the head of the Quebec nation, to protect the French language despite the court decision. “The Supreme Court, a court named by another nation, has once again hacked away at a tool that is fundamental for the Quebec nation,” Marois said. “How does the premier intend to correct the situation?” Only time will tell. Or in French (my 4th language, mind you): Seul le temps nous le dira.


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Published on October 23, 2009
Author:          Filed under: Canada, Language rights, Ran Hirschl

Courts in authoritarian regimes

Some readers may know that I have an occasional interest in the role of courts in authoritarian regimes. There is a wonderful quote in today’s NYTimes from Iranian “opposition” leader Mehdi Karroubi, who has been threatened with trial at a special court for clergy. The concept of this special court is itself interesting: the court is used as a device to maintain cohesion within the dictatorial class, somewhat similar to Robert Barros’ found in his study of the Chilean constitutional court under Pinochet. The idea here is that constitutions can be used by authoritarian regimes to coordinate the disparate interests of the members of the ruling class.

But Karroubi’s quote, copied below, illustrates the additional idea that because of their public nature, courts can be used to rally support for the opposition, even in cases that they lose. Karroubi says: “I am not only unworried about this court …. I wholeheartedly welcome it since I will use it to express my concerns regarding the national and religious beliefs of the Iranian people and the ideas of Imam Khomeini, and clearly reveal those who are opposed to these concerns.” Courts are, as Tamir Moustafa and others have observed, double-edged swords.

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Published on October 23, 2009
Author:          Filed under: hp, Iran, Tom Ginsburg

Constitutional democracy as a national security strategy

Longtime China observer Jerry Cohen recently posted a critique of Taiwan’s government after its prime minister reacted against foreign critics. See here . One theme of Jerry’s comments is that Taiwan, as an island whose defense rests on explicit and implicit guarantees from the United States, is now of strategic value not because of its location but because of its values. The US might defend Taiwan because it is a democracy, but is unlikely to defend it for other strategic reasons in an era of a rising and important China. The interesting implication is that pursuing constitutional democracy might make sense not only for internal moral reasons, but as an element of a security strategy. Thanks to Tokujin Matsudaira for bringing the blog to my attention.

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Published on October 22, 2009
Author:          Filed under: hp, Taiwan, Tom Ginsburg

Term limits declared unconstitutional in Nicaragua

Current Nicaraguan president Daniel Ortega, elected in 2007 for a 5 year period, filed an amparo suit before the Constitutional Chamber of the Nicaraguan Supreme Court arguing that a 1995 constitutional amendment that imposed limits to indefinite reelection violates his constitutional rights. The Constitutional Chamber decided yesterday that it is unconstitutional to prohibit the reelection of the president of the Republic.

Daniel Ortega is the former leader of the Frente Sandinista de Liberación Nacional (FSLN), the liberation army that fought against the long dictatorship established in Nicaragua by the Somoza family. After the transition to democracy in 1985, Daniel Ortega was elected president for a 5 year period until 1990, when his party lost the election against the opposition lead by Violeta Barrios de Chamorro. It took Daniel Ortega seventeen years to go back to the presidency and now it seems that his plans are not to leave it that easily. Ortega was trying to get the necessary votes in the National Assembly to reform Article 147 of the Constitution and allow for his reelection, but was simultaneously pursuing a judicial strategy, which now seems to have worked best.

In declarations for a local newspaper, the president of the Constitutional Chamber, Rafael Solís, argued that their decision was supported by similar recent decisions by the Costa Rican Constitutional Chamber (the well-known Sala Cuarta, that made possible the re-election of current President Oscar Arias) as well as the decision by the Colombian Court allowing for the re-election of current president Álvaro Uribe. The Nicaraguan Supreme Court en banc, composed by sixteen magistrates, still has to ratify the decision made by its Constitutional Chamber.


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Published on October 20, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America, Nicaragua, term limits

Jamaican PM wants constitution to ban gay marriage

In our large project on the characteristics of written constitutions of independent nation-states, one of the questions we included was whether or not the constitution provided for gay marriage. We were somewhat surprised to learn that the only place with a clear constitutional right to gay marriage was our survey instrument! Indeed, the handful of constitutions that speak to the issue choose to ban gay marriage. Now the Jamaican Prime Minister wants to adopt a constitutional ban on gay marriage as part of a larger amendment of the Charter of Rights.

The American experience, and perhaps global experience, seems to be that courts are leading the way on the issue of gay marriage, with legislators much more cautious or even hostile. Perhaps that is unsurprising, but it speaks to the limits of reliance on legislative leadership on human rights. Professor Tushnet’s observation of a correlation of “Weak Courts, Strong Rights” may apply to only a limited subset of rights claims.

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Published on October 16, 2009
Author:          Filed under: gay rights, hp