Blog of the International Journal of Constitutional Law

A Supreme Court vs. Religious Authorities Showdown in Israel

In August 2009 I wrote here about the Israeli Supreme Court ruling that involved a clash between the right to sectarian autonomy in education, and equality rights. A girls-only publicly-funded religious school introduced separation between an educational stream for Ashkenazi Hasidic community girls, and a different stream for Sephardic (Mizrahi) girls. The school’s main claim has been that authentic differences in culture and tradition between the Hasidic community and Sephardic community justify the segregation.

In a nutshell, the Court held that although the right to cultural pluralism in education is recognized by Israeli law, religious affiliation as a basis for autonomous schooling is not an absolute right when it collides with the overarching right to equality. It found the two-stream policy unjustifiably discriminatory, based predominantly on ethnicity, and essentially masking a reality of a two-tier schooling system, with “elite” education provided in the school’s Hasidic stream as opposed to a more “blue collar” one in the other. In some respects then, this case resembles the UKSC ruling concerning an apparently discriminatory admission criteria in a North London Jewish school. (The UKSC cited the Israeli Supreme Court ruling in its Dec. 2009 decision). In a broader sense, it reminds us of the debate in India concerning personal status law. Hovering over these cases is the larger question of unified state authority versus autonomus religious authority, and the applicability of general constitutional norms to matters of religious tradition.

At any rate, nearly a year after the decision was rendered, school authorities and the Hasidic families whose daughters attend the “elite” stream, still refuse to accept the Court ruling and continue to defy follow-up Court orders for abolishing the ethnicity-based segregation. They implicitly question the Sephardic girls’ “truth to Torah” way of life, dress code, and so on. Initially, the Supreme Court imposed hefty fines for each day of non-compliance. As defiance and contempt of court orders continued, imprisonment of recalcitrant fathers ensued (ethnic discrimination aside, mothers have been left out of it in order to take care of their children . . .). This brought about mass demonstrations by Hasidic Jews, one was estimated at over 100,000 participants. Religious leaders went on to question state authority, to vilify the Supreme Court, and describe its judges as apostates. Most political leaders remain vague or mum as the coalition government depends on religious parties’ support. The stand-off is about to enter its third week, with dozens of Hasidic parents behind bars and Supreme Court judges insist that no concessions are expected unless the 2009 decision is implemented in full. The incoming Jewish Sabbath provides all involved parties with a God-given time-out for reconsideration.


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Published on June 25, 2010
Author:          Filed under: Israel, Ran Hirschl

More Soccer and Comparative Constitutionalism

The U.S. sports network ESPN has produced a fascinating documentary called The Two Escobars. It examines the link between Columbian soccer and the various drug cartels there during the period of the ascendancy of Pablo Escobar, who led the Medellin Cartel. The star soccer player who is the film’s focus is Andres Escobar. He unfortunately obtained international notoriety by scoring an “own goal” against his team in a World Cup Game against the USA. Escobar was a great soccer player and a very honest individual, according to the film. Moreover, Columbia was then one of the best teams in the world. Yet one of the reasons for the national team’s ascendancy apparently was Columbian drug money that helped fund the country’s players. This was called “narco-soccer.” Unfortunately, Andres Escobar was eventually murdered in part because of his soccer mistake.

Without giving away the ending, the film has several aspects that purport to touch on the Columbian Constitution. First, Pablo Escobar apparently got elected to the national legislature as part of an effort to obtain constitutional immunity and to avoid being extradited to the U.S. Then he managed to eventually get a constitutional amendment passed that removed the extradition provisions. Moreover, he became a bit of a Robin Hood figure by building many soccer fields in poorer communities. I hope people have a chance to watch this film and learn about one country where there was a tangled link between sports, drugs, politics, and constitutionalism.

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Published on June 25, 2010
Author:          Filed under: hp, Mark Kende

World Cup and U.S. Supreme Court Nominations

This op-ed might be of interest to the readership:

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Published on June 17, 2010
Author:          Filed under: hp, Mark Kende

The Legal Status of the Queen in Canada

Canada is constitutional monarchy, a term which refers to a system of government headed by a monarch whose actions are both constrained and compelled by a constitution.

The monarch in Canada is the Queen. The Constitution Act of 1867 says so expressly and the Constitution Act of 1982 affirms it implicity.

But the question that neither constitutional text can answer is whether the Canadian monarch is to be styled the Queen of England or the Queen of Canada, or something else, like the Queen of the Commonwealth, because both constitutional texts refer to the Queen simply as the Queen.

The distinction between the Queen of England and the Queen of Canada arose today in a comparative constitutional law class I am teaching as part of Southwestern Law School’s Vancouver Summer Law Program at the University of British Columbia.

One of my excellent students made the argument that it is improper to refer to the Queen of England in the context of Canadian constitutional law because the Queen of England possesses neither the legal authority nor the political legitimacy to act in Canada. There is only a Queen of Canada in Canada. She is the one who serves as the monarch. And even though both the Queen of England and the Queen of Canada are in reality the same private person, they are two constitutionally distinguishable legal persons.

This is a clever move that helps defend the claim that Canada is a sovereign state with its own monarch, and as a consequence that Canada is indeed truly an independent state that is not at all subject to the authority, ceremonial or not, of a foreign actor.

It is of course merely a legal fiction to distinguish between the Queen of England and the Queen of Canada. But it is a legal fiction upon which hinges much if not all of Canadian constitutional law, at least since 1982 when the Canadian Constitution was “repatriated” from the Parliament of the United Kingdom to the Parliament of Canada.

On this theory of split legal personalities, when the Canadian Parliament passes a bill, which is then given Royal Assent to ultimately become law (this is the equivalent of presentment in the United States), it is therefore not correct to state that the Queen of England signs the bill into law; it is the rather the Queen of Canada who signs the bill into law. Likewise, when a new Justice is named to the Supreme Court, it would be inaccurate to say that the formal appointment is made by the Queen of England; the right answer is that the appointment is made by the Queen of Canada.

This legal fiction is fascinating. But whether this legal fiction is convincing as a matter of constitutional law may be less important than whether it is convincing as a matter of public opinion.

With republican sentiment on the rise in Canada, the monarchist movement may have to look for a line of argument that resonates more intensely with Canadians than this very technical distinction between the Queen of England and the Queen of Canada.

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Published on June 15, 2010
Author:          Filed under: Canada, Constitutional Monarchy, hp, Queen, Richard Albert

Enacting Constitutionalism

For readers who might be interested in a paper on the constitutional enactment of independent judicial institutions, may I suggest a paper just published entitled “Enacting Constitutionalism,” in which my coauthor and I focus on the political composition of the constituent body and its implications for the type of institutions enacted. The paper is available here.

Here is the abstract:

When and why can we expect constitution-making processes to produce an institutional framework that formally serves constitutionalism? We present a simple and general typology of constituent processes that captures their legal/political character and their dynamic nature. We distinguish constitution-making processes controlled by one cohesive and organized political group (unilateral) from processes controlled by at least two different political groups (multilateral). Our central hypothesis is that multilateral constitution-making tend to establish institutional frameworks consistent with constitutionalism. Focusing on independent judicial institutions, we find support for our hypothesis in a sample of 18 Latin American countries from 1945 to 2005.

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Political (and constitutional) Turmoil in Belgium

In the world of constitutional design, few things could be more ironic than a country that at the same time is home to the unofficial capital of the new Europe just as its own political and constitutional future is increasingly under siege. The New Flemish Alliance Party (NVA), which advocates a peaceful breakup of Belgium and the establishment of an independent Flanders, became the largest political party in Belgium, having received about 17.5% of the popular vote in Sunday’s general elections, translating into 27 seats in the 150-seat parliament. The largely francophone Socialist Party won 26 seats. The Christian Democratic Flemish Party, once an ally of NVA, received another 11% of the popular vote (17 seats). Much like in neighboring Netherlands where elections were held last week, a compromise coalition government appears inevitable. And the fact that Belgium is about to hold the EU presidency from July to December will surely calm things down a bit. However, this has still been the strongest showing of a secessionist party in the history of Belgian federal politics. As some readers will recall, in 2004 Belgium’s Court of Cassation approved a lower court ban on the Flemish extreme right-wing separatist Vlaams Blok Party. The party resurfaced as Vlaams Belang (Flemish Interest) a few months later. The more moderate NVA appears to have managed to attract some of VB’s supporters, although the VB still garnered 8% of the votes (12 seats).

Following a 1993 constitutional amendment, the constitution establishes a federal framework, with Flemish and Walloon regions and subunits alongside Brussels as a federal district. As in other economically uneven federations (e.g., Bolivia, Nigeria) fiscal federalism is a major issue. A series of constitutional amendments granted both regions legislative autonomy in areas such as education, agriculture, energy, and environmental protection. However, in the core fiscal issues of social security, labor, and key aspects of taxation regional autonomy is relatively limited. Flanders wants more regional autonomy in these areas as it is better-off economically than the French-speaking Walloon region and has been sponsoring hefty cash transfers to the Walloon region, where uneployment rate is notably higher and average household income is lower. A push towards more devolution of power to sub-national units alongside cuts to equalization transfers is expected.

And then there is the language issue. Much like the Quebec versus anglophone Canada situation, language wars, constitutional and otherwise, have dominated Belgian politics for quite some time now. The constitution designates three communities (Dutch speaking, French speaking, and German speaking), and four language regions (Dutch, French, German, and bilingual Brussels). The Constitutional Court (created in 1993 as the Court of Arbitration and elevated to a Constitutional Court in 2007; comprising of six judges of Flemish background, and six of Walloon background, with two chief justices) has repeatedly dealt with the language issue. A court ruling in 2003 held that it would be unconstitutional for Flanders to require schools in French-speaking enclaves to teach in Flemish only. Flemish parties countered by arguing that Walloon residents of Flemish cities do not make any effort to acquire Flemish linguistic skills. Most recently, the Court held unconstitutional a complex voting scheme that would allow French speakers living in Flemish towns jut outside of Brussels to vote for French language parties in the Brussels region, even though they live in a Flemish area. As the political system remains deadlocked on the issue of language, all signs (in either language . . .) indicate that the Constitutional Court will soon find itself in a boiling political cauldron yet again.


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Published on June 14, 2010
Author:          Filed under: Belgium, Language rights, Ran Hirschl

Xenophobia in South Africa and the U.S.

South Africa has had a problem with outbreaks of violence against foreigners in the last few years. This is especially distressing given the nation’s legacy of oppressing groups based on their backgrounds. These developments also pose real challenges to the nation’s hopeful and progressive constitution. Unfortunately, there are rumors that some in the governing party may be playing a role here, and also that the violence will escalate after the World Cup. Let’s hope that escalation doesn’t happen.

Yet none of the above justifies a May 25 U.S. State Department Travel Alert for South Africa directed at U.S. citizens. Essentially the Alert warns that the World Cup could be risky to attend. This warning happens at a time when World Cup anticipated attendance is down and hotel bookings are weak. Yet the Alert also says the following in part: “the U.S. Government has no information on any specific, credible threat of attack that any individual or group is planning to coincide with the tournament.” So the question is why issue an Alert that could cause further economic problems for the tournament based on no evidence. This only adds to the perception that the U.S. is sometimes afraid of foreigners. And of course, this is nothing compared to the Arizona immigration law.

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Published on June 5, 2010
Author:          Filed under: hp, Mark Kende

Abortion foes battle Kenya draft

If the Kenyan Constitution fails in a referendum a little over a month from now, it may be largely the result of foreign groups lobbying against it. Three U.S. Congressmen are now calling for an investigation into US support for the Kenyan constitution, arguing that funds spent on civic education for the proposed draft violate the Siljander Amendment, which is a provision of the U.S. Appropriations Act stipulating that no USAID and State Department funds “may be used to lobby for or against abortion.” (Surely this is a broad reading of the word lobbying, and apparently the author of this controversial amendment is himself under indictment for lobbying violations.) American churches have also funded challenges to the carefully negotiated provisions on the Islamic courts in the Kenyan draft.

I for one think it that, of all the things the US might export to Africa, our culture wars should not be at the top of the list. Whatever ones views of the particular compromises undertaken in Kenya’s drafting process, the choices made are hardly insane. So we might take the approach of viewing the constitution as a bundle, to be evaluated in its entirety, and to be selected or rejected by the sovereign people of Kenya on their own terms. At the same time, in a global era, no constitution is autochthonous, and it is hard to draw a clear line between good and bad external intervention. Should there be a limit to external efforts to lobby for or against particular constitutional documents, or provisions therein?


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Published on June 4, 2010
Author:          Filed under: abortion, hp, Kenya, Tom Ginsburg

German President Resigns

In a historically unprecedented step, German President Horst Köhler resigned today. The apparent cause for his resignation is criticism over statements he made in connection with German military involvement in Afghanistan. Pursuant to Article 57 of the Basic Law, the president of the state chamber (Bundesrat) will take over his duties.

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Published on May 31, 2010
Author:          Filed under: Uncategorized

Dominic Nardi on Pakistan’s Judiciary: Suo Moto Tango

The Indian Supreme Court has become prominent (or notorious) amongst comparative constitutional law scholars for its judicial activism. However, if anything, the Pakistani judiciary has gone even further in finding creative ways to support public interest litigation (PIL). Under Article 184(3) of the 1973 Constitution, the Supreme Court has original jurisdiction over petitions to enforce fundamental rights. In order to encourage PIL, the Court waives locus standi requirements and filing fees. It has even initiated PIL cases through its suo moto jurisdiction.

Environmental PIL in Pakistan began rather modestly, with most claims limited to a particular case or controversy. However, in 1994, it received a boost when Dr. Parvez Hassan, a leading environmental lawyer, helped residents file a complaint against a proposed power grid station. In Shehla Zia v. WAPDA, the Supreme Court read a right to a clean and healthy environment into Article 9 of the Constitution, which protects the right to life.

After Shehla Zia, the Judiciary became a central actor in environmental policymaking. Courts often engage in a “rolling review” over implementation of Pakistan’s Environmental Protection Act. They also utilize commissions composed of government officials, businessmen, and environmentalists to resolve scientific questions and formulate policy. For example, in 2003, in Syed Ali Mansoor Shah v. Government of Punjab, the Lahore High Court established the Lahore Clean Air Commission in response to a petition against vehicular emissions. LCAC recommended introducing EURO II CNG buses; phasing out two-stroke rickshaws; and setting ambient air quality and vehicle emission standards within three years.

Perhaps even more astounding, the Supreme Court has issued orders suo moto to remedy environmental problems that come to its attention. In the mid-1990s, Justice Saleem Akhtar convinced the Court to issue an injunction against the dumping of chemical waste off a coastline in Balochistan – after reading about the problem in a local newspaper. The justices also demanded information on anybody who owned property near the coastline and inserted conditions into their leases against dumping waste.

In one recent case, Lahore Conservation Society v. Government of Punjab, the Chief Justice Iftikhar Muhammad Chaudhry (better known for his opposition to General Musharraf) ordered a halt to a road-expansion project after reading letters to the editor complaining about the logging. The Court first requested more information from the Chief Secretary of Punjab. Subsequently, several environmental lawyers filed suit. This past March, the Chief Justice ordered that no trees could be cut and asked the government to present alternatives.

While the Court’s concern for the environment is admirable, critics accuse it of exercising its suo moto jurisdiction arbitrarily. The power to exercise suo moto lies solely with the chief justice of each court. Justices seem particularly keen on causes that do not receive much attention from the government but are popular with the public, such as urban waste and crime. However, their information often comes from anecdotal evidence in the media, not through a systematic review. Some environmental lawyers have called for guidelines to clarify when courts can exercise suo moto jurisdiction.

Suo moto jurisdiction also raises larger questions about the sustainability of judicialized policymaking. Courts lack the technical capacity to formulate long-term environmental policy. Furthermore, by assuming such a pronounced role, judges might inadvertently atrophy the capacity of executive agencies. For example, when suo moto cases arise within their jurisdiction, some provincial EPAs become reluctant to take any action for fear that they might invoke contempt of court proceedings.

Given its recent history, Pakistan’s judiciary is in a fairly unique political position. However, it would be interesting to see how many other courts around the world have exercised suo moto jurisdiction on a regular basis to address public grievances. I would be certainly interested in hearing about other cases of suo moto activism in the comments section below.

–Dominic Nardi

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Published on May 30, 2010
Author:          Filed under: Dominic Nardi, hp, Pakistan