Blog of the International Journal of Constitutional Law


Legislation has been introduced in Quebec to ban women from covering their faces when seeking or providing provincial services. This would effectively prevent Muslim women needing such services from wearing the niquab, a veil that covers the face. Supporters argue this promotes gender equality and more open interactions between the province’s citizens. Even national liberal party leader Michael Ignatieff (a former Harvard professor) has indicated his general support. Opponents argue this would take away the choice of these women and infringes on their religious freedom. Newspaper articles regarding the issue suggest widespread support in Quebec. There have been several situations already where government related entities in Quebec have refused to provide services. Ironically, one of them involved a woman who was denied the chance to take a French language course. Thus, some supporters have argued the bill would simply clarify existing practices. Whatever one’s position, this proposal seems at odds with a Canadian constitutional theme that the nation takes a “mosaic” approach to diversity, unlike the U.S. “melting pot.”

On another Quebec religion topic, I recently learned, from a student and from other sources, that some profanity in Quebec uses Catholic terminology in a derogatory way. This is certainly different from the U.S where most profanity has a connection to sexuality. The veil and the profanity issue both suggest some general skepticism about religion in Quebec, to say the least.

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Published on March 29, 2010
Author:          Filed under: hp, Mark Kende

Gay rights in Zimbabwe: perhaps not just yet

If you’re looking for an example of a country where gay rights are not exactly catching on, look no further than Zimbabwe. The BBC reports that Robert Mugabe, not exactly a darling of Western liberals to begin with, had this to say about the possibility of introducing gay rights into the new constitution under discussion: “That issue is not debatable, it’s not up for discussion. It is just madness, insanity. The ancestors will turn in their graves should we allow this to happen.”

Oh but surely the brave leader of the opposition to Mugabe, and now Prime Minister, Morgan Tsvangirai, had something more enlightened to say? Not exactly. His words: “Women make up 52% of the population… There are more women than men, so why should men be proposing to men?” So … the reason not to support gay rights is that there are too many women to go around in Zimbabwe? It is for the good of women that gay men be pressured to marry them, because that is so obviously a formula for domestic bliss all around? And straight men, for their part, will be so pleased to have the added competition for wives? How delightful for everyone.

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Published on March 27, 2010
Author:          Filed under: David Law, gay rights, hp, Zimbabwe

Guest blogger Nardi: Courting Constitutional Chaos in the Philippines

Just six weeks before Filipinos go to the polls, a recent Supreme Court decision and a poorly timed birthday have caused yet another constitutional crisis. Under the 1987 Constitution, all Supreme Court justices must retire when they reach the age of 70. Current Chief Justice Reynato Puno will turn 70 on May 17. However, Chapter VIII, § 15 seems to prohibit the president from making any appointments two months before the next election (May 10) up until the end of her term in office. This means the Supreme Court would have to wait at least eight weeks for the next president to fill the vacancy. When incumbent President Gloria Macapagal Arroyo decided to proceed with the nomination process anyway, critics cried foul.

As is so often the case in the Philippines, the Supreme Court was asked to settle the dispute. In De Castro v. Judicial and Bar Council, G.R. No. 191002 (S.C. Mar. 17, 2010), the justices concluded that the § 15 prohibition against “midnight appointments” did not include judicial appointments. The ban is located under Chapter VII, which deals with the Executive branch, whereas the Judiciary falls under Chapter VIII. Moreover, sections 14 and 16 both deal exclusively with Executive appointments; if § 15 had had a broader scope, the constitutional drafters would have made the distinction explicit.

Second, the Supreme Court noted that Section 4(1) of Chapter VIII requires the president to fill any vacancy on the Supreme Court within 90 days. However, in some cases it would be impossible for a president to comply with both this mandate and the Chapter VII, § 15 prohibition. If an incumbent justice retired early in the election season, for example, 90 days might pass before a new president could replace him.

Finally, the constitutional drafters included the § 15 prohibition in order to avoid “midnight appointments” intended to buy votes or influence the outcome of the election. However, under the constitution, the Judicial and Bar Council screens and nominates judicial candidates in order “de-politicize the Judiciary.” Furthermore, the justices felt there would be less risk of a new justice feeling indebted to a retiring president than to a newly elected one.

Nine of the fifteen justices joined the majority opinion, while two justices who voted to dismiss on other grounds appeared to sympathize with the outcome. Three justices, Chief Justice Puno and his two most likely successors, abstained. Only one dissented.

As soon as the Supreme Court announced the verdict, it came under attack. Several members of the 1986 Constitutional Commission publicly stated that they had never intended to exclude the Judiciary from § 15. Some Filipinos have even accused Arroyo of seeking to appoint a chief justice in order to have an ally on the court who could thwart any attempts to prosecute her for corruption or human rights violations.

Meanwhile, the Arroyo administration defended the decision as necessary in case the Supreme Court has to decide disputes over the election results. Estelito Mendoza, a former solicitor general, dismissed fears that the new justice would be personally loyal to Arroyo by pointing out that the current justices, all of whom were appointed by Arroyo, have frequently ruled against her.

Indeed, over the years, the Supreme Court has announced sweeping decisions in favor of environmentalists and human rights activists. Progressive lawyers and activists have become the court’s strongest stakeholders. However, the De Castro v. JBC opinion threatens to undermine this alliance. The same lawyers who supported the court’s progressive policy goals are also Arroyo’s most vocal critics. They seem to view De Castro solely as a political vote of support for Arroyo. Furthermore, many of them considered Chief Justice Puno a champion of their causes, but view his likely successor with suspicion.

The Supreme Court also lacks allies among the main presidential contenders, who have attacked the De Castro decision so forcefully as to make President Obama’s State of the Union Address appear a model of decorum. Benigno Noynoy Aquino III, a senator and current frontrunner, even threatened to impeach the justices in the majority. Whoever wins on May 10 will not be pleased that the Supreme Court “robbed” him of the opportunity to appoint the next chief justice.

This whole imbroglio raises several fascinating questions about constitutions and judicial politics. How do constitutional courts interpret judicial appointment procedures and maintain an appearance of impartiality? Do “midnight judicial appointments” risk reducing the legitimacy of the court? What motivates courts to abandon certain stakeholders or support retiring politicians? The Philippines’ frequent constitutional crises have unfortunately stunted its political and economic development, but make it a fascinating place to study constitutionalism.

–Dominic Nardi

Editors note: Dominic J. Nardi, Jr. is a visiting research fellow at the Governance Institute. He holds a J.D. from Georgetown Law and a Masters in Southeast Asian Studies from Johns Hopkins SAIS. He has worked in the Philippines on several occasions with public interest organizations.

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Published on March 26, 2010
Author:          Filed under: hp, Philippines

Kenya process keeps chugging along

The Kenyan drafting process continues to move forward, with the debate in parliament due to wrap up this week. The MPs, having received the latest draft from the Committee of Experts and the Parliamentary Select Commission, have apparently made some changes toward consolidation of local government, a major issue in the drafting debates. Some of the MPs have pushed for more local units, while others have pushed consolidation.

Over the course of the drafting process, the number of units has gradually been reduced from 77 to 47 and now to 25. The initial draft had a scheme of relatively powerful counties and weak regions; this was replaced with a scheme of counties only, and the current proposal from the parliament is to have only regions. Whatever their name, some consolidation may be a good idea so as to avoid costly duplication of government structures and to encourage multi-ethnic governance within each constituent unit.

The local units will be the basis for formation of the upper house. Each region under the current proposal will send two representatives to the Senate, and will be joined by 10 Senators set aside for minority communities. A proposal to set aside seats for women was replaced with a requirement that each region send one male and one female representative, which may be a more workable scheme as it does not require a separate electoral process, and will ensure the over 40% of the Senate is female.

Another ongoing issue of debate is abortion. We had mistakenly stated that the draft prohibited abortion, but in fact the Right to Life clause in Article 26(4) states more loosely: “Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” This last clause in particular seems to allow wide scope for parliamentary modification. It is not clear from media reports whether the MPs have agreed on any changes.

Should parliament approve, the document will go forward to a referendum, for which voter registration has just begun.

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Published on March 24, 2010
Author:          Filed under: abortion, hp, Kenya, Tom Ginsburg

New President at the FCC & Some Thoughts on the Appointment Process

Last week, Hans-Jürgen Papier retired from his position as President of the Federal Constitutional Court (FCC) and chief judge of the First Senate upon expiration of his 12 year term on the court. His successor as President is the former Vice-President of the Court Andreas Voßkuhle (FCC press release in German here). Voßkuhle concurrently serves as chief judge of the Second Senate, a position he has held since 2007 when he joined the court. At 46, Voßkuhle is the FCC’s youngest President. He is a professor of public and administrative law at the University of Freiburg.

Ferdinand Kirchhof, who has been on the court since 2007, was elevated to chief judge of the First Senate and Vice-President of the FCC. He is a professor of public law and tax law at the University of Tübingen. (FCC trivia: Ferdinand Kirchhof’s brother Paul served on the court from 1987-1999.) The vacancy on the First Senate created by Papier’s retirement was filled with Andreas Paulus, professor of public law and international public and EU law, at the University of Göttingen.

FCC judges are elected for a non-renewable term of 12 years; the mandatory retirement age is 68. The only employment permissible in conjunction with a judgeship on the FCC is as a law professor at a German university. Three of the judges of each of the two senates must be elected from among the judges of the federal courts – Article 94(1)1 of the Basic Law requires that it be at least two; §2(3) of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) sets the number at three. Half of the judges are elected by the federal legislature (Bundestag) and half by the state chamber (Bundesrat), each with a two-thirds majority. The Bundesrat elects its share directly, the Bundestag through a twelve-member committee on which members are represented proportional to their strength in the federal legislature (some scholars maintain that the election by committee is unconstitutional, violating the text of Article 94(1)2 Basic Law which demands election by the Bundestag).

Although the idea behind the two-thirds requirements presumably was to encourage multi party agreement on an individual candidate, the political reality is that judgeships are divided up between the two large political camps. By alternating appointments between the two camps, the membership of the FCC remains relatively balanced. Sometimes, a party does refuse to go along with the other’s nominee (as reported here regarding the SPD’s first choice before Voßkuhle, Horst Dreier). Even though its judges are appointed in a process of political compromise outside the public’s view, the German public overall continues to place great trust in the FCC as an institution. But a wider public debate over the nominees is virtually non-existent, mainstream press coverage on nominees is rare, and the FCC judges throughout their tenure remain largely unknown outside of the legal community.

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Published on March 23, 2010
Author:          Filed under: Claudia Haupt, Germany, hp, judicial appointments

Dueling Interpretations of American Law on the Canadian Supreme Court

Yesterday, the Canadian Supreme Court issued a 4-3 ruling in R. v. Morelli, a controversial case concerning whether a search warrant for a personal computer had been issued pursuant to defective information.
The majority concluded that the authorities had obtained the search warrant on the basis of misleading, inaccurate, and incomplete information. The result was to overturn the earlier conviction of a man accused of possessing child pornography.
What is interesting for us, though, is that the majority and dissent engaged in a fascinating exchange about what precisely is required under American law to to support a reasonable inference that a particular individual is the “type of offender” who would seek out illegal pornography. (See paragraphs 85, 87, 162, and 173.)
So here we see, quite vividly, Justices of the Canadian Supreme Court proffering dueling interpretations of American case law in a larger effort to defend their respective judgments.
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Published on March 20, 2010
Author:          Filed under: Criminal Law, hp, Richard Albert, Supreme Court of Canada

Institutional dialogue and human rights in Victoria

For those interested in the evolution of Gardbaum’s ‘new Commonwealth model of constitutionalism’ and the potential for the design of a rights instrument to promote inter-institutional dialogue a recent decision of the Court of Appeal of the Supreme Court of the Australian State of Victoria deserves attention: The Queen v Momcilovic [2010] VSCA 50

Victoria has had a Charter of Human Rights and Responsibilities since 2006. The Charter is broadly modelled on legislative bills of rights in the United Kingdom and New Zealand. Victoria is only one of two Australian sub-national jurisdictions to adopt such an instrument (the Australian Capital Territory is the other). Whether or not a national bill of rights is enacted depends in the first instance on the pending response of the national government to the conclusions of the National Human Rights Consultation. The response has been expected since December 2009; the Australian Senate recently called for it to be delivered by May 2010.

As this background suggests, Australia continues to be wary of introducing general, positive rights protection, preferring to rely instead on elected institutions, supplemented by the common law. This wariness is reflected also in the terms of the Victorian Charter. Notably, the interpretation provision, section 32, departs from the UK’s Human Rights Act by requiring statutory provisions to be interpreted in a way that is compatible with human rights ‘so far as it is possible to do so consistently with their purpose’ (emphasis supplied). The explanatory memorandum that accompanied the bill for the Charter before it was enacted by the Victorian Parliament described the purpose of this clause as to ensure that ‘courts do not strain the interpretation of the legislation so as to displace Parliament’s intended purpose…’

Momcilovic makes it clear that this difference in wording is significant. The legislation in issue appeared to reverse the onus of proof in prosecutions for drug trafficking. The Attorney-General argued that, if this provision was otherwise incompatible with the presumption of innocence that was protected by the Charter, it should be interpreted to impose only an ‘evidentiary burden’ on the accused, through application of section 32. The Court declined to do so, on the ground that such an interpretation would depart from the purpose of the provision.

In a set of wider observations on the meaning and operation of the Charter the unanimous Court held that section 32 was not a ‘special’ rule of interpretation but, in effect, gave statutory force to existing common law interpretive rules including the ‘powerful’ common law presumption against legislative interference with rights. It followed that the question of interpretation should be dealt with at the outset, in order to determine whether a Charter right had been breached. Only if breach was found on this basis should the Court move on to consider whether it was justifiable under s.7(2) as a ‘reasonable limit…that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…’

In Momcilovic itself, the Court held that the reversal of the onus of proof was not justifiable under s.7. The Court gave notice of its intention to make a Declaration of Inconsistent Interpretation, under s.36 of the Charter. Under s. 37, the government is required to table a response to a Declaration in the Victorian Parliament within six months.

For the moment at least, this decision has settled the methodology to be adopted by Victorian courts in approaching Charter questions. From the broader perspective of mechanisms for rights protection, however, it is interesting for other reasons as well. It preserves the courts from the controversy that may well have attended a broader understanding of their interpretive function. It places responsibility for action on the government and parliament in circumstances that will require some sort of public response. Aficionados of legislatures as rights protectors should watch this space. And it makes it clear that the interpretive presumption against legislative interference with rights is not dependent on the Charter alone but derives from the common law and so would survive were the Charter to be repealed. In most other jurisdictions, these would be small gains indeed. In the Australian context, however, they are significant. CS

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Published on March 20, 2010
Author:          Filed under: Australia, Cheryl Saunders, hp

Egypt on Female Judges

An Associated Press Report states that Egypt’s Constitutional Court has supported the right of women to serve as administrative court judges despite conservative opposition. The ruling addressed a conflict in the State Council, which is the country’s highest administrative court. According to AP, the Constitutional Court said that all citizens were equal before the law. Egypt’s Constitutional Court has issued other fascinating rulings over the years on the state and the rights of women. See e.g. Clark Lombardi & Nathan Brown, Translation, The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No. 8 of Judicial Year 17 (May 18, 1996), 21 Am. Univ. Int’l L. Rev. 437 (2006).

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Published on March 16, 2010
Author:          Filed under: Mark Kende hp

More on Constitutional Concerns regarding EU Data Retention Directive

Readers will likely recall that the German Federal Constitutional Court earlier this month held unconstitutional a German law requiring the retention of certain telecommunication data (German decision here, German press reports in English here and here). The law that was invalidated transposed Directive 2006/24/EC, passed largely in response to the Madrid and London bombings, into national law.

Ireland had already unsuccessfully challenged that Directive, passed under the first pillar (internal market) rather than the third (police and judicial cooperation in criminal matters), before the European Court of Justice (ECJ)(C-301/06 Ireland v. Council and European Parliament, Judgment of Feb 10, 2009).

As reported here, the EU Commission is now taking another look at the Directive. Incidentally, the new Commissioner for Home Affairs is from Sweden; having resisted transformation of the Directive into national law, the ECJ recently found that Sweden failed to fulfill its obligations (C-185/09 European Commission v. Sweden, Judgment of Feb 4, 2010).

Austria prepared a national law intended to transpose the Directive but hesitated to pass it, citing concerns regarding its constitutionality. Courts in Bulgaria and Romania previously declared the respective national laws implementing the Directive unconstitutional.

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More on Constitutional Concerns regarding EU Data Retention Directive

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Published on March 15, 2010
Author:          Filed under: Uncategorized