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Blog of the International Journal of Constitutional Law

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Published on August 31, 2009
Author:          Filed under: Uncategorized
 

More on the election campaign against conservative justices in Japan

As promised, Colin Jones has an interesting update on the public campaign to unseat a pair of sitting Supreme Court justices in the upcoming Japanese election. Thus far, in a nutshell, a retired Supreme Court justice is calling for the election defeat of two of his former colleagues in an advertising campaign that expressly uses a U.S. Supreme Court decision to criticize the Japanese Supreme Court for being too conservative. Read on:

The legislative elections being held in Japan on August 30 are widely expected to result in the end of half a century of almost uninterrupted rule by the Liberal Democratic Party. This being the case, the constitutionally mandated “citizens’ review” of supreme court justices that will be conducted at the same time will likely be even more of a sideshow than usual. Presented with a ballot listing the names of justices most Japanese people have never heard of, and provided with information about them the providence and completeness of which is uncertain, many voters either ignore this part of the polling process or submit unmarked ballots. Helped by court decisions holding that blank ballots can be counted as votes of approval, this process has added a largely harmless (from the perspective of the judiciary) veneer of democratic involvement in the judicial selection process.

It will be a shame, however, if this part of the coming election does turn out to be a sideshow as some interesting things are happening which deserve more attention. As discussed in David Law’s earlier post on this subject, some significant efforts are going into turning the judicial selection process into something more meaningful. In a full page opinion ad in the August 24 Asahi Shinbun (one of Japan’s leading national newspapers), an organization devoted to remedying electoral malapportionment is calling upon people to vote against two sitting justices who in a 2007 supreme court decision upheld an election in which the votes of citizens in some electoral districts were worth as little as 0.2 votes in others in terms of Diet representation.

In an interview in the Asahi newspaper on August 22, former supreme court justice Tokuji Izumi criticizes the court╒s past reluctance to act aggressively on this issue, noting that the seemingly arbitrary guidelines it has developed in the past – imbalances in voter representation of up to 300% in the House of Representatives and 600% being constitutional – are without foundation. Issuing decisions which provide a guidepost to the legislature, as the court has done in other areas, will not work with this problem. As Izumi says, “the selection of Diet members is a decision of the voters. But it is difficult for the Diet to itself reconsider the system by which it is chosen, difficult to make changes to the system by which you yourself were chosen. To the extent that you cannot expect the legislature to do so, it is up to the judiciary to provide checks on this issue.”

Naming names has never been a particularly “Japanese” thing to do, particularly in the establishment. That is why this sort of ad campaign seems so significant. First, it is clearly well-funded (full page ads in a national newspaper aren’t cheap). Second, the list of people named as “founders” of the movement include Justice Izumi himself as well as a number of leading lawyers, former judges and prosecutors, well known academics and journalists, a number of corporate leaders (including the CEO of the Orix Group) – even a Fields-medal-winning mathematician. This is not the typical Japanese citizens group comprised of weekend activists holding meetings and leafleting against the establishment. It is the establishment, or a meaningful chunk of it, at least.

What is also interesting about this particular ad is it refers to an unnamed 1983 U.S. Supreme Court case (presumably Karcher v. Dagget, 462 U.S. 725 (1983)) which it characterizes as having held unconstitutional a New Jersey electoral districting which resulted in votes on some districts being equal to only 0.993 of those in others. A much higher tougher standard than has prevailed in the incomprehensible mishmash of Japanese malapportionment cases. Whether the U.S. case is being properly characterized or represents a valid comparative is beside the point. What is significant is that U.S. Supreme Court jurisprudence is being used as part of a roadmap to greater equality in the Japanese political system. This is not unprecedented, of course, but that it is being used in an appeal made directly to Japanese citizens, rather than in obscure academic journals or court cases is interesting.

Whether this campaign will have any effect will be revealed in a few days. It is hard to imagine enough voters reading the ads or thinking about the issues to actually result in Justices Wakui and Nasu being cast out of their chambers. But even if there is no direct impact, this and other ads may be an indicator that it will become increasingly difficult for Japanese judges to beaver away in comfortable quasi-autonomy, issuing decisions which favor the establishment over the people. Apparently even parts of the establishment have had enough.

— Colin P.A. Jones, Professor, Doshisha Law School

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Term Limits Imperiled Again (this time in Colombia)

The perennial war of term limits versus presidents in Latin America seems to have opened a new front in Colombia — my native country, no less. There, it appears that term limits pose no match for popular President Uribe, whose supporters have pushed through a bill in the senate that paves the way for a referendum to remove limits on presidential re-election. The constitutional court (an interesting innovation of the 1991 constitution) will review the bill and, assuming no objections, Uribe’s supporters will need to muster a majority of voters (with a quorum of 1/4 of the electorate voting) to secure a constitutional amendment on term limits.

This should not be surprising. Honduras notwithstanding, term limits usually lose the fight against Presidents. At least that’s what the recent wave of constitutional amendments and replacements suggests (a short list from memory from the last 20 years includes Brazil, Argentina, Peru, Venezuela, Ecuador, and Bolivia). The overall record between the two contenders is unknown, since term limit victories (when contested) are not documented very easily — certainly, the Honduran case is not alone. However, in some back-of-the envelope accounting my co-authors Tom Ginsburg, James Melton, and I find that term limits have been breached about twice a year since 1945. In 1973 alone, term limits were violated six times.

Most of these violations have occurred in Latin America, at least prior to the 1960s or so. Until that time, most other countries either had executives without fixed terms or did not impose term limits. On the other hand, over 80% of constitutions in Latin American imposed term limits on executives through World War II, after which countries began to remove limits. Today, about 50% of constitutions in Latin America include such limits, the same proportion as constitutions in the rest of the world. [All these data are from the Comparative Constitutions Project].

All of this, of course, revives the normative debate about term limits and the inevitable tension between two threats to democratic representation: the finger-on-the-scale effect of incumbency and the heavy hand of candidate restrictions.

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Published on August 27, 2009
Author:          Filed under: Colombia, hp, Latin America, term limits, Zachary Elkins
 

When Supreme Court justices attack … each other

Imagine if Justice O’Connor were to sponsor a full-page advertisement in the New York Times calling for the impeachment of her former colleague, Justice Kennedy, because she disagrees with the positions he has taken on some issue–say, voting rights. Hard to imagine, right? Now try to imagine something like that happening in Japan, where it is even rarer for judges to make controversial public statements or speak out publicly on issues before the courts, much less to attack one another in public.

Well, that is pretty much what is happening right now in Japan.

Many readers of this blog will already be aware that Japan has a national election coming up, and that it promises to be an interesting one: the Liberal Democratic Party, which has ruled Japan almost without interruption since World War II, appears to be heading for a monumental and historic defeat. What our dear readers may not realize, however, is that certain members of the Supreme Court will also be on the ballot, and one of their former colleagues is trying to get them kicked off the Court.


Imagine if Justice O’Connor were to sponsor a full-page advertisement in the New York Times calling for the impeachment of her former colleague, Justice Kennedy, because she disagrees with the positions he has taken on some issue–say, voting rights. Hard to imagine, right? Now try to imagine something like that happening in Japan, where it is even rarer for judges to make controversial public statements or speak out publicly on issues before the courts, much less to attack one another in public.

Well, that is pretty much what is happening right now in Japan.

Many readers of this blog will already be aware that Japan has a national election coming up, and that it promises to be an interesting one: the Liberal Democratic Party, which has ruled Japan almost without interruption since World War II, appears to be heading for a monumental and historic defeat. What our dear readers may not realize, however, is that certain members of the Supreme Court will also be on the ballot, and one of their former colleagues is trying to get them kicked off the Court.

Per Article 79 of the Kenpo, Japan’s postwar constitution, justices are initially appointed by the Prime Minister* but must then stand for election at the first general election following their initial appointment, and at ten-year intervals thereafter. The retention election provision has widely, and accurately, been regarded as toothless. The public does not know enough about the justices to vote in an informed manner, and the justices have always been reelected by lopsided margins. (The provision requiring reelection at ten-year intervals is especially useless: it has literally been decades since any justice was appointed at a sufficiently young age that he (and unfortunately I do mean “he,” not “she”) did not hit mandatory retirement at age 70 before facing a second retention election.)

Justice Tokuji Izumi, a career judge who retired from the Supreme Court earlier this year, is trying to change that, and in a very public way. Izumi–by all accounts one of the smarter judges around, and one whom I have heard praised specifically for his political savvy–is listed as one of the signatories and “originators” of a series of advertisements that have appeared in the Japanese media-including, most recently, a full-page ad in today’s issue of the Asahi Shimbun, Japan’s most prominent newspaper. The ads urge readers to vote against Justices Kohei Nasu and Norio Wakui on account of the positions that they took shortly after their appointment in a 2007 electoral malapportionment case, in which they were, shall we say, somewhat less than steadfast in their defense of equal voting rights for all Japanese citizens.

Electoral malapportionment has long been a thorn in the Court’s side, but to make a very long story very short: (1) Japan’s electoral districts have suffered from chronic malapportionment favoring rural over urban areas (actual voting disparities have on occasion topped 5:1); (2) this is one of the very few constitutional issues on which the Court has actually tried to force the government to act; and (3) the government (which, having always been controlled by the same party, has benefited from this malapportionment) has unsurprisingly failed to fix the problem.

You can get a sense of the nature of the campaign against Justices Nasu and Wakui by checking out the two cute little mascots on the home page of the organization’s website (lions? tigers? leopards? See this earlier post for proof that it is absolutely mandatory in Japan for all serious political and/or legal matters to be championed by some sort of mascot.) And see those signs they’re holding up? The left one is holding a sign that says, “One person, one vote.” Kawai desu ne! But what’s that sign that the right one is holding up? “One person, 0.6 of a vote.” Oh dear, that’s not so kawai now, is it. That’s pretty much all the Japanese I can muster, but it’s also pretty much all the Japanese you need to get the idea.

And in case you were wondering: Yes, Izumi did serve on the Court with both Nasu and Wakui. I wonder what his retirement party was like. Will they still send him Christmas cards?

On a more serious note, one might also wonder: Should any effort to discipline or remove judges for the positions that they take be considered an assault on judicial independence? Should it make a difference that the attack is, in this case, being led by a highly respected lifelong judge and former justice of the Supreme Court?

There is much more to say, but for more on the politics of the Japanese Supreme Court, the Court’s dismal track record in pretty much every area of constitutional law *except* voting rights, and even a bit on Justice Izumi’s turn to the left, may I somewhat selfishly suggest this article, which you can also find in print in the Texas Law Review.

Tip of the hat to Setsuo Miyazawa of Aoyoma Gakuin Law School for the heads-up. Colin Jones of Doshisha Law School is keeping an eye on this story for us, and perhaps he will have some on-the-ground reconnaissance to share with us in the coming days.

[* Technically, the Chief Justice is appointed by the Emperor on the advice of the Cabinet, and the Cabinet appoints the rest. But, as in pretty much any parliamentary system, the Prime Minister runs the Cabinet.]

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The Continental Divide Writ Small

One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.


One of the interesting phenomena in North American constitutionalism is the subtle duet of convergence alongside enduring divergence in the constitutional law and practice of the United States and Canada. The border between the two countries is often described as the longest friendly border in the world. Over 1 billion dollars worth of goods cross the border every day. The coordination between the two countries on almost every issue from NORAD to immigration is exemplary. Although fewer Americans now cross the border for one-day shopping trips in Canada due to new passport regulations and the strength of the Canadian dollar, thousands of Red Sox fans roamed the streets of Toronto last week. Numerous of our graduates at the University of Toronto Faculty of Law move on to practice in major American law firms. And the upcoming annual meeting of the American Political Science Association will be held in Toronto.

Yet constitutional differences, some quite significant, continue to endure. While the major differences between the two countries’ systems of government, political histories and constitutional legacies, are relatively well known, the less spectacular differences remain underexplored.

In July 2008, for example, a week after the U.S. Supreme Court ruling in Heller (essentially expanding the right to bear arms to individual/private use), Canada’s Governor General appointed Dr. Henry Morgentaler (currently 86 years old) to the Order of Canada – the highest official recognition of one’s contribution to Canadian society. Morgentaler, for those of you who do not follow constitutional law and politics north of parallel 49, is one of the most daring and progressive activists in Canadian constitutional history, and has been the champion of abortion rights in Canada for over 30 years. He and his clinics have been the target of many assaults by pro-life activists over the years.

Another reminder of these differences came in this weekend’s criminal underworld news: a former model was viciously murdered in LA, allegedly by her ex-husband, a reality TV star and a Canadian. (How the victim’s body was identified by police is an altogether different story, suitable for a forensic medicine blog). The suspect, still on the loose, is thought to have fled the US to Canada by boat. In 2001, the Supreme Court of Canada ruled in United States v. Burns that Canadian citizens facing serious criminal charges in the United States that may lead to their execution are not to be extradited to face trial unless a guarantee not to seek the death penalty in provided by American prosecutors. The main constitutional ground for the ruling was breach of “fundamental justice” guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. Although the Court did not rule on whether the death penalty was unconstitutional (section 12 of the Charter prohibits cruel and unusual punishment), at the principled level the ruling in Burns may be seen as a progressive, anti capital punishment statement. At the same time, the potentially grave consequences for law enforcement are obvious.

Either way, although dated in some respects, parts of Seymour M. Lipset’s classic account of the US/Canada continental divide remain as relevant today as they have ever been.

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Published on August 23, 2009
Author:          Filed under: abortion, Canada, extradition, hp, Ran Hirschl, United States
 

Are Constitutions like Marriage?

The convenant binding two people “til death do [them] part” seems to have much in common with constitutions. Both contracts are highly symbolic and probably confer some degree of legitimacy upon unions that will inevitably weather their fair share of crises. Both contracts, when entered into, are thought to last indefinitely. We can continue to be optimistic about any given union, but we know many of them are doomed to come apart.
But how do the rates of divorce and constitutional replacement compare? Here I present some evidence from a book that Tom Ginsburg, James Melton, and I have just finished entitled The Endurance of National Constitutions (due out next month). [Tom and I hope to serialize some of the highlights from the book here in the next few weeks].
The figure above plots the hazard estimate of constitutional death, which is the probability of death conditional on having lived to a given age. The figure, then, charts the risk of death at various points in the life cycle of a constitution.
Here’s some of our discussion of these patterns from Chapter Six of the book:

As it happens, the shape of the hazard rate for constitutional dissolution
seems to mirror that of marriage dissolution, at least in some cultures. With
data on Norwegian couples, for example, Aalen and Gjessing (2001)
show that the risk of divorce is low in the first one or two years of marriage
(roughly 1 of 1,000 couples will divorce) but the divorce rate rises steadily
until age six, when it peaks (the peak rate differs by era, but for couples
married in 1980 the rate was 22 in 1,000), and then decreases gradually with a
trivially small uptick in the divorce rate after twenty years. In the case of
constitutions, the hazard rate takes longer to reach its peak at age fifteen
(where it sits at roughly 27 deaths per 1,000) but then decreases steadily and
substantially until by age fifty the rate is approximately .02, or 20 deaths per
1,000 constitutions. Curiously, not only does the shape of the hazard rate match
across the two domains, but the hazard rate itself is almost equivalent when
both rates are at their peak. For the many scholars who have found the marriage
covenant to be a useful analogue to the constitutional one, these results
provide more ammunition.

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Published on August 21, 2009
Author:          Filed under: hp, Zachary Elkins
 

Constitutional implications of Japan’s upcoming election

Japan’s Lower House elections will occur in a few days time on August 30. The Liberal Democratic Party (LDP), which has run Japan more or less continuously since its formation since 1955, is widely expected to go down to defeat. The opposition Democratic Party of Japan (DPJ) is expected to take the lead role in a new government, probably in cooperation with coalition partners.

How much of a difference will this make? It is hard to tell. The DPJ is led by former members of the LDP and it is hard to see significant policy differences between the LDP and DPJ. On constitutional reform, for example, when the revisionist faction of the LDP called for amendments a few years ago, the DPJ followed suit with its own proposals for reform that were fairly similar to those pushed by the LDP. (The main symbolic issue there is changing Article Nine, which prohibits maintenance of an army, to reflect current “understandings” of the role of the Self-Defense Forces.) In the current election, there are minor differences between the parties, for example on the size of subsidy per child being offered to spur Japan’s low birthrate, but mostly the issue seems to be about competence rather than policy.

In other ways, however, the prospect of alternation in power is likely to significantly affect the operation of Japan’s political system, in many ways bringing it closer to the formal description of the processes in the Japanese Constitution of 1946. Consider two examples: the role of the Diet and the position of the courts. The Diet is formally the supreme organ of state power and the sole law-making body (Article 41). In reality, Japanese statutes are nearly always drafted by the bureaucracy in cooperation with the LDP, and so the formal legislative process is just that–a mere formality. The Diet has virtually no independent impact on the laws that it passes (and I’m told that legal publishers have been known to publish statutes even before passage, since they are confident the Diet won’t change them). Recently, however, the LDP’s loss of the Upper House has meant that the opposition can block legislation, and in a couple cases this has forced some modification of bills after introduction into the Diet. This trend may continue with the presence of a non-LDP government, perhaps involving a coalition. So the legislature may begin to “matter” in the sense of serving as a true forum for deliberation and policy-making.

Another structural feature concerns the courts. The Constitution (Article 76) provides that all judges shall be independent and bound only by the law. Yet, as Mark Ramseyer and co-authors have demonstrated, Japanese judges pay attention to their superiors in the bureaucratic hierarchy, who in turn are responsive to certain LDP policy interests. What will the fall of the LDP, should it materialize, do for judicial independence? One can imagine that the prospect of alternation in power will, eventually, produce a more independent judiciary, as no political party is in position to consistently discipline the courts.

These are just two ways in which we might see political practice shift more toward the apparent requirements of the constitutional text. On the more visible symbolic issue of Article Nine, however, there is little difference between the DPJ and LDP: both read the clause to allow for a fairly significant defense capability.

Stay tuned and we’ll see what happens August 30!

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Published on August 21, 2009
Author:          Filed under: hp, Japan, Tom Ginsburg
 

Iraq’s Constitutional Review Committee Delivers its Final Report to Parliament

The Iraq Constitutional Review Committee (CRC) submitted its final report to the Iraq Parliament on July 27 with little notice or fanfare – over two and half years after it began its constitutionally mandated comprehensive review, the report comes in at 68 pages (in English) and represents dozens of proposed amendments to the 2005 Constitution. It is now up to the Council of Representatives (CoR) to vote on the package. If it passes it goes to national referendum.

The report contains a number of important substantive recommendations that should enjoy widespread support, including:

• fleshing out the form and character of Iraq’s second chamber of Parliament, the Federation Council;
• addressing the paralysis regularly faced by the Council of Representatives by reducing the quorum requirement to a third (but retains the absolute majority threshold for decisions);
• providing greater status to the Council of Ministers, as opposed to the Prime Minister alone, by making the Council the “supreme executive and administrative branch” and charging it with “develop[ing] the strategies and policies of the country and overs[ing] the implementation of laws and regulations and manag[ing] the work of the government and its institutions;”
• providing greater clarity on the relationship between independent commissions (such as a Human Rights Commission, an Independent Electoral Commission, and a Commission on Public Integrity) and other organs of state; and
• retaining the current Presidency Council (a three-person office of the president) until such time as the Federation Council is constituted (currently, the Presidency Council, considered by many to be the body best suited for resolving sectarian and ethnic disputes, is set to expire at the end of this legislative term and be replaced by a single President).

On the controversial matter of personal status (family law), the report provides that Iraqis “shall have the right to commit to the provisions of his religion and sect in his personal status and the personal status law shall ensure its regulating.” (Please excuse the rough translation). While in Baghdad a senior member of the CRC informed me that by explicitly mentioning the “personal status law,” the revised language is intended to alleviate concerns that the current Constitution allows Islamic law to override the existing secular code. Personally, I don’t see it. It might be the translation, but women’s rights leaders in Baghdad expressed to me great frustration that the revised text does nothing to protect women from what they perceive as inequality under some aspects of Islamic personal status law.

On Iraqi citizenship, the report takes a step backwards. Whereas the current Constitution makes clear that anyone born to an Iraqi father or mother is an Iraqi citizen the report replaces the “or” with an “and” — children born to one Iraqi parent are citizens only in accordance with future regulations.

But the real consequence of the document is its treatment of the provisions concerning the relationship between the central and regional governments. The report takes the notable step of adding several competencies to the exclusive powers of the federal government. It also makes explicit the federal government’s right to use the military to maintain order and security within a region’s boundaries. And the report clarifies that implementing legislation called for in the Constitution is federal and not regional legislation.

However, the report retreats from a series of important amendments that appeared in a draft as recently as this past June. The June draft revised the treatment of Iraq’s natural resources (oil and gas) empowering the federal government with the responsibility of collecting all oil and gas revenue (and then charging it with automatically and transparently distributing it proportionally among the provinces and regions), and making the federal government “together” with the relevant regions and provinces responsible for managing all reserves (under the current Constitution the federal government is responsible for managing on “present fields” – managing non-existing fields is left to regions. It also made federal law supreme to regional law with regard to the critical matters of oil, natural gas, water, customs, and ports. Instead of these proposed changes the report sheepishly notes, “Articles 111-115 [the articles relating to the distribution of powers and natural resources] are still under discussion.”

The CRC removed these recommendations because of the controversy they were sure to cause with the Kurdistan Regional Government (KRG). In fact, the KRG had already rejected these recommendations when they were first presented in May 2007 as part of the CRC’s interim report. What is confusing is why the CRC removed some controversial proposals but kept others – the additional exclusive federal powers, for example, were also contained in the interim agreement and rejected by the Kurds. Even more curious is that the final report contains new provisions sure to inflame the Kurds as much as those that were removed – the interim report did not have a provision on the use of armed forces in the region.

The “half full” reflection on the constitutional review is the extent to which Shia and Sunni interests aligned. Indeed, one would be hard pressed to find areas where the two do not share a common vision of the state. Unfortunately, this was the case in May 2007 as well. So instead of trumpeting the synergies between Sunni and Shia, one must read the CRC’s report with regret that the last two years were not used to bridge the gap between Arabs and Kurds. This failure is not surprising – such is the political climate in Iraq today where rhetoric reigns and political paralysis is the norm. But it is still regrettable.

While it is not known when (if) the Council of Representatives will consider the CRC’s final report (most predict it will not occur until after the national elections scheduled for 2010) it is certain that Kurdish politicians will attempt to block the amendments in parliament and if they fail there will call upon residents of the Kurdistan region to reject them at referendum (a rejection by the three predominantly Kurdish provinces would alone be sufficient to prevent their passage). Such a rejection of the controversial amendments would mean a rejection of the agreed upon ones as well. In other words, two and half years of constitutional revision could amount to nothing unless Iraq’s political leaders seriously take up the matters in the CRC’s report that go to the heart of the federal character of Iraq.

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Published on August 20, 2009
Author:          Filed under: amendment, constitutional change, federalism, hp, iraq, Jason Gluck
 

The Constitution of Kosovo and Appointing Judges

One of the benefits of being a law professor in Washington, D.C. is that you have the chance to talk to the many interesting people who happen to be passing through town. For someone interested in comparative constitutional law in particular, this can be quite helpful, as your lunch companions can be valuable sources of information about constitutional developments around the world.

Many months ago, I met with someone who had worked on the creation of the Constitution of Kosovo. I learned from her of an intriguing part of the new constitution,
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Published on August 16, 2009
Author:          Filed under: Uncategorized
 

Guest Post: Constitutional Aftermath of Taiwan’s Typhoon

Typhoon Morakot, now known as Taiwan’s Katrina, brought not only a catastropic flood but also a political avalanche to Taiwan. Public criticism toward the government’s disordered, too-slow rescue efforts is giving rise to anger against President Ma, blaming him for his inaction, wooden qualities and incompetence as leader of the nation. One can also understand this as a constitutional issue: why did President Ma, a Harvard Law School graduate who won an overwhelming victory in last year’s presidential election and will soon take office as chairman of the ruling party, fail to use his emergency powers to deal with a national emergency?

The answer is has to do with Mr. Ma’s constitutional theory, which has shown some similarity with constitutional practices under the authoritarian regime. As background, Taiwan’s system is semi-presidential, in which the president supervises five branches of government, including the Executive Yuan. In practice, the president has himself exercised extensive political authority, particularly in the four decades of dictatorship that began to end in the late 1980s. The president did so through martial law and a ‘temporary’ suspension of parts of the constitution.

It seems that Mr. Ma was deeply impressed with the model created by his political mentor, the late President Chiang Ching-kuo. During Chiang’s presidency (1978-88), the president was an authoritarian leader holding exceptional powers, and thus had to show self-restriction in order to avoid appearing to run an unmanageable dictatorship. In his ten years in office, Chiang only appointed two premiers who were both technocrats, and gave them ample discretion. Leaving executive power to the premier and cabinet also advances a formalistic rule of law, for the constitution of 1946, as partly amended after 1991, vests the executive power in the Executive Yuan, the cabinet. It is not strange for Ma to imitate Chiang’s practice due to his sympathy to the late president’s style and his preference for rule of law formalism.

Moreover, as president of a post-authoritarian new democracy and successor of the old authoritarian regime, Ma has more reasons to refrain from exercising his legal emergency powers: he has to prove that the old days will never return again. Unlike former President Lee Teng-hui, Mr. Ma, who is a mainlander and elite technocrat loyal to KMT, is has the burden of showing that he is a democrat; part of the population deeply distrusts him, suspecting that he will “sell” Taiwan to China.

Mr. Ma has followed what he learned from Chiang to the extent it fits for a democracy. He appointed a technocrat as premier and trusts him with discretionary powers, treating him not as subordinate but partner. He has been temperate in exercising his emergency powers and refuses to exploit the national security council as a second government. Together, using these two institutions would enable the president to suspend the law enforcement and act without statutory authorization. In the end of authoritarian period, the opposition attacked both, arguing that the scope of president’s emergency power should be narrowed and the NSC is unconstitutional (NSC was “legalized” by the constitutional amendment in the 1990s).

Moreover, Mr. Ma’s somewhat passive approach also draws on his experience as mayor of Taipei. During his term of office (1998-2006), Ma avoided being a “unitary executive”, instead restricting his role to that of an adjuster or coordinator above the bureaucratic fray. He has not changed his role even after becoming the president. Unlike Chiang and Lee, Ma is neither a political strongman nor a charismatic leader. He also lacks the skills as a professional politician of former President Chen, his notorious predecessor. For Ma it is natural to pursue a self-restricting presidency.

However, Mr. Ma may underestimate the constitutional transition that occurred during Taiwan’s democratization. Through the constitutional amendments in the 1990s, former President Lee gave the presidential system formed in authoritarian period a democratic basis and renewed the regime of emergency powers. During his presidency (1988-2000), Lee had made Taiwan a centralized state and her president the only representative of legitimate, unlimited power of the sovereign people. As to the matter of emergency, the new constitutional canon is that the president is the unitary executive who acts through the NSC. The divided municipalities and counties have no ability to cope with such a devastating natural disaster. Nor the cabinet can respond to such an emergency unless its efforts are endorsed by the president. Only the president, by invoking his national security powers, can provide military personnel and justification of government action needed in a national emergency. It is impossible for any Taiwanese president to ignore the new canon. The ongoing tragedy shows Taiwan lacks an effective and self-directed bureaucracy that is the precondition of Ma’s self-restricting presidency; on the contrary, Taiwan’s bureaucracy is, as it was in the authoritarian era, heavily dependent on pressure from the top. This may be one of the reasons the present constitution favors presidential to parliamentary government.

President Ma’s failure indicates the difficulty of a national leader to properly use his constitutional emergency powers in a post-authoritarian democracy. In Ma’s case, unfortunately, he is running out of time to learn.

–Tokujin Matsudaira, Research Fellow, Hitotsubashi University, Tokyo

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Published on August 16, 2009
Author:          Filed under: emergency powers, hp, Taiwan