Blog of the International Journal of Constitutional Law

Kenya process moves forward…

Kenya’s Parliamentary Select Committee has now returned the draft constitution—heavily modified—to the Committee of Experts for reconsideration. The major change was dropping the semi-presidential system in favor of a pure presidential system with a directly elected president, reflecting demand from the public for greater clarity and clearer channels of accountability.

The switch from semi-presidentialism is interesting on a number of dimensions. It upends a bargain among the two leading political factions around Prime Minister Odinga and President Kibaki. With only one political prize to fight for, the stakes are higher and so competition will be intensified, hopefully without the horrific violence that accompanied Kenya’s last election.

Another implication concerns drafting processes. In the 1990s, Jon Elster argued that constitutions ought to be written by specially constituted constituent assemblies because legislatures would engage in self-dealing if they were involved in the process. In a recent empirical examination, we did not find evidence that parliament-centered drafting exercises produced constitutions with more parliamentary power. One might see the Kenyan parliament arguing for presidentialism as data point in this regard (though of course one can have fairly strong legislatures in presidential systems.)

We have not yet seen the draft, but it was reported that the PSC also removed the Human Rights Commission, the National Land Commission and the Gender Commission from the draft. The MPs proposed that instead of entrenching these commissions in the constitution they should be stipulated by Acts of Parliament. Parliament has an expanded number of constituencies in the draft, and there were modifications to the proposed system of devolution, a crucial political issue in Kenya. There were a few other smaller changes too, such as removing the entrenchment of Nairobi as the capital.

The Committee of Experts now evaluates the changes and will return the draft to parliament by February 25. Parliament then debates the draft for 30 days. If approved, the process jumps to publication of new constitution by April 26 then referendum on June 26.

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Published on February 1, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg

Canadian Supreme Court decision in Khadr handed down

For those following the Khadr case (previously discussed here), the Supreme Court of Canada has handed down its decision. To recap, Khadr is a Canadian citizen who was captured by the U.S. as a teenager and has been tortured in the course of his indefinite detention without trial at Guantanamo Bay. He has been fighting to try to get the Canadian government to request his repatriation, thus far to no avail. The upshot is that Khadr wins on the merits but is now limited to declaratory relief. The Court declares that the government’s knowing complicity in his detention and torture violated his Charter rights, but it overturns the lower court’s grant of injunctive relief directing the Canadian government to request his repatriation. It’s now up to the government to decide how to comply with the Court’s declaration. The decision is available here.

So from a judicial politics angle, the interesting question is, why rule for Khadr on the merits but reverse the lower court’s order directing the recalcitrant government to request his repatriation?
Should we take at face value the Court’s solicitude for the government’s need for latitude in the foreign policy arena? Is the Court trying to let Stephen Harper’s Conservative government save face? Is it worried about noncompliance? Perhaps some combination of all of the above: giving the government the ability to say that it is voluntarily choosing to request Khadr’s repatriation increases the probability that it will in fact do so? Do any of our sophisticated Canadian friends/my fellow Canadians have any thoughts?

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Published on January 30, 2010
Author:          Filed under: Canada, David Law, Guantanamo Bay, hp, Supreme Court of Canada

Shoe Throwing at the Israeli Supreme Court

A strange incident at the Israeli Supreme Court — a person with a record of threatening lower court judges threw his shoes (a-la Iraqi journalist move) at no else than Chief Justice Dorit Beinisch during a Supreme Court hearing in a matter unrelated to the shoe thrower. CJ Beinisch was hurt and required medical treatment for about an hour, after which she returned to the bench and to her other adjudication duties. Criminal charges have been laid against the shoe thrower, and CJ Beinisch is listed among the prosecution witnesses.

While this particular kind of event is unprecedented, threats against Israeli SC judges are not new. Throughout much of the 1990s, during the hey-day of judicial activism and the so-called “constitutional revolution” in Israel, the then Chief Justice Aharon Barak’s private residence in Jerusalem was guarded by government security forces 24/7 following concrete threats against him from Ultra-Orthodox and extreme right wing circles. And lest we forget, Prime Minister Rabin was assassinated in the name of that same political agenda in 1995.

Opposition to the judicialization of politics in Israel and to Supreme Court’s activism seldom emanates from the old Ashkenazi elites, the mainstream Zionist consensus or from big business. Rather, most political opposition to the Court so far has come from either orthodox religious circles who accuse the Court of forwarding its own liberalizing anti-religious agenda, from right-wing nationalists and Jewish settlers who accuse the Court of advancing an agenda that is distinctly to the left of the Israeli median voter’s worldviews, or simply from so-called “new elites” who continue to gain power while resenting the Court’s affinity with the ideological tilts and cultural propensities of Israel’s Ashkenazi establishment and the urban intelligentsia.

The main two claims are that given the Court’s quite lenient standing and access rights, and the highly contentious nature of many of the issues it deals with, the Court should adopt a more deferential approach; and that given the centrality of the Court in Israeli politics, the Court’s composition should better reflect the diverse demographics, worldviews and policy preferences of the Israeli society. As I wrote in an earlier post, these pressures have led to struggles over judicial appointments, and more generally to intense debates concerning judicial activism. It is not entirely clear whether the bizarre shoe attack earlier this week was driven by ideology, personal grievances against CJ Beinisch or by some other motive. But it no doubt reflects the charged atmosphere surrounding a very (some say too) visible Court.


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Published on January 28, 2010
Author:          Filed under: Israel, Ran Hirschl

Socio-Economic Rights: The Second Stage

In a post last week, I argued that the South African Constitutional Court’s first stage of socio-economic rights decisions threaded a needle by enforcing such rights, yet accommodating separation of powers concerns. This new post discusses the second of the Court’s three stages. In this second stage, the Constitutional Court also dealt with several cases in which homeless people were evicted from land where they were “squatting.” Yet in these cases, the Court eventually ordered any municipalities seeking eviction to participate in “meaningful engagement” with the vulnerable community, and ensure that reasonable alternative circumstances were provided. Moreover, the Court essentially encouraged the squatters to return if the government was intransigent. This created a strong incentive for the municipality to treat the “squatters” with dignity. One such case was Occupiers of 51 Olivia Road & Others v. City of Johannesburg, CCT 24/07 (2008). What’s legally innovative about the “meaningful engagement” approach is that it is a kind of forced alternative dispute resolution, in a structural class action type context.

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Published on January 28, 2010
Author:          Filed under: Mark Kende hp

Turkish court ruling

Jurist reports that Turkey’s constitutional court has over-turned a law allowing for civilian prosecution of military personnel in civilian courts. The report describes the law as being a barrier to EU accession, but the real politics are likely domestic: the law was promulgated in part to facilitate investigation of military officials and others who were involved in the alleged plot against the ruling Justice and Development Party. Scholars of the constitutional court have long viewed it as leaning toward the secular statist pole of Turkish politics, as evidenced by its repeated willingness to uphold challenges to ban Islamist political parties. This decision seems quite consistent with that overall approach. We welcome further comment from those more familiar with the local politics!

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Published on January 27, 2010
Author:          Filed under: hp, Tom Ginsburg, Turkey

Competing Models of Democracy in Canada and the United States

A few years ago, Michael Adams illuminated the many ways in which the United States and Canada are hardening in their views on civil society, culture, and politics. Entitled “Fire and Ice,” the book marshals an encyclopedic volume of data to show that Canada retains its own distinct identity—one that remains vibrant and strong despite being subject to omnipresent American influences.
But if the book left any doubt that the United States Constitution and the Canadian Charter of Rights and Freedoms are anchored in divergent constitutional values, the recent judgment of the Supreme Court of the United States in Citizens United v. Federal Election Commission should confirm that the United States and Canada orient themselves toward different conceptions of democracy, at least with respect to private expenditures in political elections. Whereas Canada adheres to a model of egalitarianism, the United States appears to adhere to a model that may be best described as libertarian.
Begin with the relevant Canadian case: Harper v. Canada (Attorney General), in which the Supreme Court of Canada upheld a law limiting advertising expenditures by individuals and groups to a maximum of $150,000 nationally and $3,000 in a single electoral district. Writing for the majority, Justice Michel Bastarache outlined the egalitarian foundations of democracy in Canada:

“The Court’s conception of electoral fairness … is consistent with the egalitarian model of elections adopted by Parliament as an essential component of our democratic society. This model is premised on the notion that individuals should have an equal opportunity to participate in the electoral process. Under this model, wealth is the main obstacle to equal participation. Thus, the egalitarian model promotes an electoral process that requires the wealthy to be prevented from controlling the electoral process to the detriment of others with less economic power.” [para. 62; internal citations omitted]

In contrast, last week in Citizens United, the Supreme Court of the United States invalidated analogous limits on advertising expenditures in the United States. Henceforth, groups like corporations and unions are no longer subject to restrictions on the amount they may spend independently of political campaigns. The Court’s judgment, delivered by Justice Anthony Kennedy, is revealing in many ways, but most notably in just how sharply it departs from the words of Justice Bastarache:

“Speech,” wrote Justice Kennedy, “is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” [p. 23]

Moreover, “political speech is indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual.” [p. 33; internal citations omitted]

All of which, for Justice Kennedy and the majority, suggests that “the appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” [p. 44]

This is fascinating evidence of the contrast of cultures between the United States and Canada, and also of their conflicting visions of popular participation in the political process.
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Published on January 25, 2010
Author:          Filed under: campaign finance; election, Canada, hp, Richard Albert, United States

Statutes on constitutional amendment procedure?

here is a question from Mongolia, where the parliament is considering drafting a statute on constitutional amendments. Some countries have specific statutes to cover the procedure for proposing and passing an amendment, filling in details not contained in the constitution. Do any readers have examples of such statutes? Please let us know by comment if so.

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Published on January 25, 2010
Author:          Filed under: hp, Tom Ginsburg

How Representative is the Senate Minority Anyway?

Last week’s Senate election in Massachusetts had many of us thinking about the merits and demerits of the filibuster. A basic question that sprang to mind, given the well-known malapportionment of the Senate, was this: what percent of Americans are represented by the 41 would-be filibusterers? I was supremely disappointed by cyberspace to find that no one had done the calculation. After all, one of the perennial knocks on the filibuster is that the recalcitrant minority could theoretically represent as little as 10% of the population, if that set of Senators were from the smallest states.

Thankfully, Abby Blass, a graduate student here at the University of Texas has put these data together and done us all a great service. By her calculations the 41 Republicans represent 36% of Americans (assuming that each Senator represents half of his or her state). One way to think about that finding is that the constituents of the minority Senators are are only slightly over-represented. In that view, malapportionment has not resulted in a disturbingly small filibuster-capable minority.

The flip side, of course, is that Democratic Senators represent 64% of the population, and as such, speak for slightly more than the magic 3/5 supermajority of Americans. Should the Democrats decide to push through a health care bill by “reconciliation” or the “nuclear/constitutional” option (both of which seem unlikely), the fact that Democratic voters are underrepresented in the Senate might be part of the sales pitch. This is not to say that Republicans, much less the growing tea-party movement, will buy any of it.

Either way you view it, it’s nice to have the facts.

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Published on January 25, 2010
Author:          Filed under: filibuster, hp, senate, United States, Zachary Elkins

Is the Japanese Supreme Court spreading its wings?

Last week, the Japanese Supreme Court ruled that it is unconstitutional for a municipal government to offer city-owned land without charge for the site of a Shinto shrine. The ruling by the top court’s Grand Bench upheld the contention of the plaintiffs that the municipal government of Sunagawa, Hokkaido had violated the constitutional requirement of a separation of church and state when it granted city land to the shrine without charge. The court said that “It is inevitable that the general public would believe the local government supports a specific religion if it provides specific benefits to it.” This case follows squarely the 1997 Ehime Case in which the court ruled that it was unconstitutional for a prefectural government to fund offerings to Shinto Shrines.

The broader structural question, beyond the scope of this case, is whether the Japanese Supreme Court will assume a more activist stance in over-ruling government action now that the long-ruling Liberal Democrats have lost power. This would certainly be the prediction of political science studies of courts. Even though the specifics of this case do not fit the logic of our theories of “hegemonic preservation” or “political insurance” in which prospective losers seek to empower the court to constrain government later on, the court itself may feel freer to strike government action now that there is no longer a dominant party that can easily constrain the court. This is the second ruling of unconstitutionality in less than two years; the previous sixty one years of constitutional practice had yielded only seven such instances.

Thanks to Tokujin Matsudaira for the tip on the case!

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Published on January 24, 2010
Author:          Filed under: hp, Japan, Tom Ginsburg

Three Stages of Socio-Economic Rights?

The South African Constitutional Court has issued internationally significant decisions abolishing the death penalty, legalizing same-sex marriage, and ruling that their Constitution’s socio-economic rights provision are enforceable rather than aspirational. The socio-economic rulings are among the first of their kind internationally with some exceptions (for example, India and Columbia). Yet the Constitutional Court has recently reached a troubling third stage in its socio-economic cases. This will be the first of three posts explaining what has transpired.

The first stage was embodied in decisions such as Republic of South Africa v. Grootboom, 2001 (1) SA 46 (CC), where the Court found that the national government violated Section 26 of the Constitution’s guarantee of access to housing, because the government acted unreasonably in having no policy to shelter the homeless. While honoring the right, the Court left the remedy to the government because of separation of powers and other concerns. The Court went a step further in Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721 (CC) by ordering the government to provide a drug, to pregnant women with AIDS, that would prevent transmission of the disease to their babies. The Court said the government’s refusal was unreasonable in light of Section 27’s guarantee of the right to access health care. Cass Sunstein has argued that both cases adopted an “administrative law” model of deference to the government, in terms of the reasonableness test. The government, however, must also take action to progressively realize the right. These cases refused, though, to impose “minimum core” obligations on the government because the Court said that would be too rigid, especially in light of scarce resources and other factors. South African scholars have generally criticized the decisions for not adopting a minimum core, though I have written extensively about why that criticism is mistaken as have others. Interestingly, former Constitutional Court Justice Richard Goldstone recently stated that “future litigants are open to raise the (minimum core) issue on the basis of an adequate factual record in the trial court.” Gauri, Brinks, Eds., “Courting Social Justice” xii (Cambridge 2008) The next post will discuss the second stage of the Court’s decisions.

Mark Kende

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Published on January 22, 2010
Author:          Filed under: Uncategorized