A Special Iraqi Electoral Court today waded even deeper into political and electoral waters, ordering a partial recount of votes cast in last month’s parliamentary election.
In so doing the court upset the Independent Higher Electoral Commission’s certification of the results and has played right into the hands of Prime Minister Nouri Al-Maliki, who seems to be pulling out all the stops to win a plurality of seats in Parliament.
(My March 31 post (below) explains the politics behind the recount, which is in line with an earlier ruling by the Federal Supreme Court on the post-election government formation.)
The irony is that while Prime Minister Maliki (or any candidate for that matter) would clearly like to enjoy a plurality of parliamentary seats, this is not necessary to form a government. Constitutionally, the only advantage the party/bloc with the most seats enjoys is the first opportunity to form a government, which is accomplished by securing a coalition with a majority of parliamentary seats (163). (And even that advantage has been diminished by the earlier judicial ruling made at the prompting of the Prime Minister.) With 91 seats for Allawi’s Iraqiyya Party and 89 for Maliki’s State of Law Party neither party/bloc alone comes close. This is why the past several weeks have witnessed daily reports of intense negotiations with other parties and blocs.
The point is that either Allawi or Maliki will complete a successful negotiation with other parties to form a government or they won’t. But success or failure does not so far seem to hinge on who actually has the most seats. In other words, Prime Minister Maliki, through the judicial intervention, may in the end successfully capture the most seats. But it will be irrelevant if Allawi and the other major parties reach agreement to form a government. Conversely, the Prime Minister could put an end to the recount (and the delay, suspicions, and ill will it has generated) and focus on building a coalition to form a government — and, if successful, render meaningless Allawi’s numerical parliamentary advantage.
For now, the only certainty seems to be that the judiciary is going to come through these elections tarnished — its integrity and independence having suffered.
The Indonesian Constitutional Court is holding a hearing on the legality of the nation’s 1965 Blasphemy Law. The law officially acknowledges six religions: Buddhism, Catholicism, Confucianism, Hinduism, Islam, and Protestantism. It also essentially prohibits “religious based activities” that “resemble the religious activities of the religion in question, where such interpretation and activities are in deviation of the basic teachings of the religion.” This seems to prohibit alternative teachings. Indeed, the case emerged because the government banned a sect of Islam that viewed its founder as the last prophet of Islam.
Recently, BYU law professor Cole Durham testified before the Constitutional Court by video and argued that the law violates the International Covenant on Civil and Political Rights. By contrast, Indonesia’s Minister of Religious Affairs is arguing the law must be upheld to avoid developments like Islam and the Koran being interpreted at will.
The resignation of Justice John Paul Stevens has given rise to speculation as to his replacement. It has become an almost invariable pattern in the United States to appoint professional bureaucrats (i.e., judges who have toiled in the lower federal courts) to the high court. Some polities, however, have a different practice and appoint judges to their national high courts with a non-judicial background. In Belgium, for example, at least half the judges on the constitutional court must have a minimum of five years experience either in the federal or in a regional parliament. In France, over half the members of the Constitutional Council who have served from the inception of that body to the present have served in parliament. Professors and academics have been appointed to national high courts in Colombia, France, Spain, Italy, and Germany. Civil law countries have largely rejected the idea of exclusively staffing constitutional courts with professional bureaucrats.
I do not think that the American practice of selecting professional bureaucrats as justices has served us well. Judges with non-technical, legal backgrounds have something important to add to the constitutional conversation. The open-ended provisions of the constitution are not like other laws. One need not be a legal realist to understand that the incantation made by nominees to the United States Supreme Court in their appointment hearings before the Senate that they are simply umpires following the law is errant nonsense. Hans Kelsen (no legal realist) very perceptively suggested in an important essay he wrote in 1928 that the “Constitution in employing a term such as justice did not intend that the fate of a law would depend on the pleasure of a collegial body selected in a more or less arbitrary fashion.” For better or for worse, few, if any, constitution writers have followed his advice and made the broad provisions of a constitution purely programmatic. If, however, the open ended provisions of a constitution are to be self-actualizing, their interpretation requires judges with a broader vision than is typically supplied by law school and a career on the bench. It seems unlikely, for example, that justices with a broad, non-technical background would invalidate a hard fought and democratic national health care bill whereas it is, unfortunately, quite possible to imagine our Court from interfering with (and damaging) democracy in this fashion.
–Miguel Schor, Suffolk University Law School
SSRN Webpage http://ssrn.com/author=469730
The Associated Press reports that Pakistan’s National Assembly has just passed a mammoth package of constitutional amendments, the so-called “18th Amendment Bill.” Passage required a two-thirds majority; the actual vote was unanimous. The most noteworthy aspect of the amendment bill-which actually contains a total of 105 amendments to the constitutional text-is the extent to which President Zardari relinquishes power. Among other things, the power to dissolve the National Assembly and appoint the head of the army will shift to the Prime Minister. Meanwhile, the abolition of term limits for the Prime Minister will make it possible for opposition leader Nawaz Sharif not only to assume this office once again, but to do so with newly expanded powers. The President also surrenders the power to appoint senior judges to a commission-a noteworthy change if one recalls the rioting, replete with professionally attired, rock-throwing lawyers, that occurred when former President Musharraf removed Chief Justice Chaudhry from office out of fear that the Supreme Court would invalidate his reelection. More autonomy for Pakistan’s provinces is also in the works. Deutsche World and the Economist have brief rundowns of the mega-amendment.
A popular academic theory of constitutions holds that constitutions serve to commit the polity across time. Knowing that we are likely to try to impose majority will on minorities in the future, we tie our collective hands to limit the damage that can be done to individual and community rights. Knowing that we are likely to prefer to continuously re-elect incumbents, we impose term limits that force us to choose new candidates, limiting democratic choice. There are many other examples in the literature, which is associated with scholars like Cass Sunstein and Stephen Holmes.
From this point of view, it is somewhat odd that constitutions do not more frequently limit the size or growth of government in budgetary terms. It might make sense, for example, to pre-commit not to engage in deficit spending over a certain percentage. To be sure there are lots of examples of constitutional provisions that set aside a certain percentage of the revenue for particular allocations, and some examples of restrictions on extra-budgetary spending (Austria’s Art. 51b limits it to 1/1000 of total spending, unless there is a state of defense; other constitutions prohibit extra-budgetary spending entirely.) But I know of no constitution that imposes an explicit limit on the size of the state. Relatively few national constitutions require a balanced budget, even as an aspiration. Switzerland provides one example: Art. 126 makes reference to a balanced budget over the long term and states that “The maximum of the total expenditures which may be budgeted shall be determined by the expected receipts, taking into account the economic situation.” Article 128 actually spells out the maximum personal income tax rates, so presumably when one combines limited taxes and a sort-of balanced budget requirement, there are fairly rigid limits on state spending. But the whole Swiss constitution can be amended through referendum so the level of pre-commitment is not that high.
The main point is that, while constitutions sometimes involve precommitments, they do not always do so in areas we might think they should. And many provisions of constitutions don’t seem well explained by precommitment theory: why do so many spend so much time on issues like the national anthem and oaths of office that could easily be dealt with in statutes?
An interesting story from Israel. Compliance with judicial scrutiny of “process-light” measures adopted by governments to combat terrorism is certainly not limited to the post-9/11 context. Spain (ETA), Britain (Northern Ireland), or Peru (Shining Path) are merely few examples. In 1999, the Israeli Supreme Court banned the use of torture in interrogations by Israel’s General Security Services, but allowed the use of what it termed “moderate physical pressure.” In 2006 it ordered the weighing of security considerations against potential harm to civilians in determining the legality of “targeted killings” (the controversial practice of assassinating suspected Palestinian terrorists by Israel’s security forces). The Court also held that a sincere effort must be made to arrest suspects before an order to kill is issued. Since that ruling, the official line has been that “targeted killings” are illegal and no longer practiced. Or are they?
On April 7, a story broke out in the Israeli media after it had been censored for a few months but eventually leaked to numerous foreign media outlets. It goes something like this: In 2007, a secretary at the office of a senior Israeli army general, during her mandatory military service (in most cases, 3 years for men, 2 years for women), collected and kept hundreds of documents, including “top secret” ones, which upon finishing her military service she transferred to an investigative journalist in Ha’Aretz (arguably, Israel’s most respected newspaper). The documents, dated after the Supreme Court ruling in 2006, appear to indicate that the IDF continued to approve the de-facto “killing upon encounter” of Palestinian Islamic Jihad militants that are included in the IDF’s “most wanted” list. These documents also appear to indicate an a-priori approval of killing of Palestinian civilians that happen to be at the scene. (As an aside: allegations of that nature were made in the Goldstone Report investigating alleged international law and human rights violations during the Israel-Hamas conflict in Gaza in early 2009). In late 2008, the journalist published an article accussing the army of disregarding the Court ruling. A year later, security services asked the journalist to reveal his sources. He refused, but agreed to hand in the documents and his computer. Days later, the source was detained, put in a 4-month house arrest, and is now facing charges of severe espionage with an intention to harm national interests. Conviction as charged carries a possible life sentence. The matter was kept in the dark for months.
So several issues arise, among them: 1) the obvious tension between freedom of the press and security needs, or what’s the role of censorship in such situations; 2) the shaky moral foundations of the “targeted killings” practice used by “rule of law” states; 3) the ethical and legal rules of engagement with respect to the source-journalist-security services triangle; and 4) the army’s apparent disregard, or at least loose interpretation, of Supreme Court rulings. The source, herself working for a local news website, says the documents were circulating around freely in the general’s office, with dozens of low-ranked personnel with little or no security clearance having access to them. She says she had no intention to harm national security interests, just to alert the media to the situation. Intentions aside, the story has now turned into a whole espionage-censorship-is the army above the law kerfuffle. Did top army generals, perhaps even pertinent political authorities, blatantly ignore an unwelcomed Supreme Court ruling? Please stay tuned.
South Africa has gone through a rough few weeks recently with racial issues at the forefront that touch on constitutional questions. The controversial leader of the African National Congress youth league, Julius Malema, has included a sing-along with his speeches. He uses an anti-Apartheid song that contains the lyric “shoot the Boers” and other similar statements. This has created quite a row given that Malema has significant political power in the majority party.
Next, the controversial white right wing Afrikaaner (Boer) nationalist, Eugene TerreBlanche, was brutally killed, allegedly by two blacks who worked for him. The authorities have stated the killing was connected to supposedly unpaid wages. The authorities have also said that they will prosecute fully. Some supporters of TerreBlanche, however, claim the killing was linked to the kind of rhetoric used in the song mentioned earlier. This seems like a stretch.
Several legal issues have arisen. One is that a court had just recently enjoined Malema from singing this song at rallies, because the song supposedly violates South Africa’s hate speech restrictions. Another is that the National Prosecuting Authority has announced that it will try the accused TerreBlanche killers in camera because one is only 15 years old (the other is 28). Whether either legal decision will stand is unclear. What is clear is that South Africa’s racial divisions remain significant.
Kenya’s draft Constitution moves today to the office of Attorney General Amos Wako, who has four weeks to prepare the text for public referendum. The current text is the same as that forwarded by the Committee of Experts to the Parliament in late February—Parliament debated but failed to pass some 100 proposals for amendment. Prime Minister Raila Odinga called for no further amendments (perhaps thinking about Wako, whose earlier draft constitution was key to the unraveling of the prior process in 2005). So it seems that this draft will likely be the final product, or very close to it.
Some observations on the draft: It is a significant improvement over earlier versions in the process, on a number of dimensions. Although the draft establishes a presidential system, which has led to some concern given the troubled history of presidentialism in Africa, this is probably preferable to the semi-presidential system that was initially proposed (though arguably inferior to the parliamentary model). There are a number of independent commissions with some institutional protections, though limited powers. The parliament will have a role in approving appointments and so this may form some check on the president. The devolution scheme, which was a major focus of debate, will establish 47 counties which are to be the primary subnational unit. The counties are represented in the Senate, which has legislative powers for topics related to subnational governance.
This is not to say that all is perfect in the draft. 47 counties is both a large number, requiring much administrative duplication, and a small number, in that local government will be relatively far from the communities on the ground. These units may be susceptible to capture and domination by one or the other group in any given geographic area.
The election system, at both levels of government, will involve special seats to represent women, the disabled, and other groups, but the process for picking these seats is unwieldy: they will generally be apportioned to political parties on the basis of the seat totals (not vote totals) earned in the relevant general election. Without any provision for dealing with electoral remainders, these will likely be a source of contention. Other looming electoral issues: Art. 137 implicitly prohibits cabinet members from being nominated for president (because they cannot serve as members of parliament). This seems unwise, as it may discourage strong leaders of smaller parties from entering the cabinet, undermining national cohesion. The draft also adopts a ban on ethnic or regional parties—such bans are typically ineffectual, and may have perverse side-effects if the government uses the prohibition to outlaw opposition parties.
Constitutional politics around the draft are heating up. Certain church groups are opposing the draft because it restored some limited possibility of abortion under conditions of medical necessity, and because it allows for jurisdiction of kadhi courts over some limited issues of Muslim personal law. These issues have plagued Kenya’s constitution-making efforts for some time, and the draft handles them in a compromise fashion. Indeed, by declaring that life begins at conception (a position shared by all religions) the draft already reflects some capture by the Christian groups. No doubt there will be many other issues raised in the forthcoming campaign. Under the transitional provisions Art 12(3), current President Kibaki seems to be prohibited from running again, so this may lead to some opposition, though I’m too poorly informed about Kenyan politics to know if this is really an issue.