Blog of the International Journal of Constitutional Law

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

Canadian Decision on Guantánamo Bay

As noted in this New York Times story, a Federal Court of Appeal in Canada ordered Stephen Harper’s government to become more involved in seeking the release of a Canadian held in American custody.
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Published on August 15, 2009
Author:          Filed under: Uncategorized

Collateral Convictions and Comparative Constitutional Law

A new article about the collateral consequences of criminal convictions, with a comparative element looking at constitutional-style constraints on these consequences in several countries:

This article explores the racial dimensions of the various collateral consequences that attach to criminal convictions in the United States. The consequences include ineligibility for public and government-assisted housing, public benefits and various forms of employment, as well as civic exclusions such as ineligibility for jury service and felon disenfranchisement. To test its hypothesis that these penalties, both historically and contemporarily, are rooted in race, the article looks to England and Wales, Canada and South Africa. These countries have criminal justice systems similar to the United States’, have been influenced significantly by United States’ criminal justice practices in recent years, have turned to increasingly punitive punishment schemes and have histories of disproportionately incarcerating people of color. This article is the first that offers a detailed comparative examination of collateral consequences. The examination finds that the consequences in the United States are harsher and more pervasive than those in these other countries. It also shows that Canada and South Africa have articulated broad dignity protections for incarcerated and formerly incarcerated individuals that are influenced by human rights notions of rights and privileges. Canada, in particular, has employed mechanisms to ease racial disparities in incarceration. Drawing lessons from these countries, the article offers steps to ease the legal burdens placed on individuals with criminal records in the United States, as well as to lessen the disproportionate impact these post-sentence consequences have on individuals and communities of color.

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Published on August 15, 2009
Author:          Filed under: Uncategorized

Once Pinochet’s Censor, Now President of the Constitutional Court

Even close observers of Chile’s constitutional politics were taken by surprise when an electronic newspaper (‘El Mostrador’) reported a few weeks ago that the new President of the Constitutional Court had been the director of DINACOS (an agency organized during Augusto Pinochet’s regime to implement censorship).

The new head of the Constitutional Court, Marcelo Venegas, had cultivated a low profile since arriving at the Court, in 2006. He became a member of it as a result of a close-door negotiation between the government coalition and the opposition.

Venegas, an undistinguished member of the Chilean legal profession, spent most of the time since the end of the authoritarian regime as an obscure legislative assistant to congressmen of Renovacion Nacional, one of the two political parties of the opposition.

The scandal that the information of Venegas’ past created in Chile’s legal and political circles did not, however, make any difference, since neither the new President nor his colleagues at the Court felt the need to revise the decision. Thus, Chileans will have to accept that the head of the body charged with advancing fundamental rights made a living censoring independent media during the country’s most brutal dictatorship in history.

Venegas’ appointment to the top post at the Constitutional Court represents yet another blow to the already low prestige enjoyed by the Court, after a year marked by mostly conservative decisions, such as the 5-4 ruling prohibiting the distribution by the government of the so-called ‘morning-after pill’, on the ground that it is an abortive medicine.

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Published on August 15, 2009
Author:          Filed under: Chile, constitutional politics, hp, Javier Couso

A noteworthy decision by the Mexican Supreme Court

On December 22, 1997 forty five persons from an indigenous community in Chiapas (a state of southern Mexico) were killed while they were praying early in the morning. The horrendous crime was followed by another one: under a lot of pressure the prosecutors captured and imprisoned fifty seven persons but several of them on false testimonies and fabricated evidence simply for being in the wrong place at the wrong time. More than ten years later, and after a Kafkian labyrinth of procedural hurdles, the Mexican Supreme Court mandated last Wednesday the immediate liberation of more than half of the accused on grounds of serious violations of their due process rights.

The decision is noteworthy for several reasons. First and foremost, at least some justice has been done by liberating several persons whose culpability had not been duly demonstrated. Second, it takes place in the context of the first phase of the reform of the Mexican criminal justice system, that is being transformed from an inquisitorial into an adversarial system. Mexico is a late comer in the Latin American region regarding this transformation, which has taken place in Chile and Peru among other countries. The reform will take about seven years to be completed, and from the beginning it has been facing important opposition for different groups in Mexico; one of them is the criminal lawyers who don’t want to change a system that they know how to handle. The reform has two main goals, improving efficiency and professionalizing the prosecution, which is the Achilles’ heel of the Mexican criminal justice system. Thus, with its decision in this politically charged case, the Mexican Supreme Court has made clear not only its support for the reform but more importantly it has taken the lead in the effort to build a professional prosecutorial corps whose guide should be the due process rights when investigating crimes.

Last but by all means not least, the case of the indigenous prisoners was litigated by professors and students of CIDE’s law school, a public research center in Mexico City. Jose Antonio Caballero, the head of the law school, set up a clinic of public interest litigation and they have started with the right foot. This is an important effort in the building of a “support structure” (Epp 1998) for rights litigation, that is being strengthened considerably in Mexico and also in other Latin American countries.


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Published on August 14, 2009
Author:          Filed under: hp, Julio Rios-Figueroa, Latin America, Mexico


The Iraq Constitutional Review Committee (CRC) just submitted its final report to Parliament – over two and half years after it began its constitutionally mandated comprehensive review, the report comes in at 65 pages (in English) and represents dozens of amendments to the 2005 Constitution.

The report contains a number of important substantive recommendations that should enjoy widespread support. The report fleshes out the form and character of Iraq’s second chamber of Parliament, the Federation Council; addresses 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); seeks to provide 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;” provides greater clarity on the relationship between independent commissions and other organs of state; and contains a proposal to retain the current Presidency Council (a three-person office) 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 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 in its treatment of the provisions concerning the relationship between the central and regional governments. The report adds several competencies to the exclusive and shared powers of the federal government and makes federal law supreme with regard to the critical matters of oil, natural gas, water, customs, and ports. It also makes the federal government responsible for collecting all oil and gas revenue (and then charges it with automatically and transparently distributing it proportionally among the provinces and regions), and removes the present/future distinction with regard to management of oil and gas reserves — the federal government “together” with the relevant regions and provinces would now manage all reserves. It also makes explicit the federal government’s right to use the military to maintain order and security within a region’s boundaries. And finally, the report clarifies that legislation called for in the Constitution is federal legislation.

These alterations to the balance of power between the central and regional governments are sure to provoke the Kurdistan Regional Government. In fact, the KRG already rejected most of these proposals when they were first presented in May 2007 as part of the CRC’s interim report. Over two years later the proposed amendments show no signs of compromise and have actually been revised in ways to further anger the Kurds (the interim report did not have a provision on the use of armed forces in the region).

The “half full” observation is the extent to which Shia and Sunni interests aligned during the constitutional review. 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.

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 their 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 uncontroversial ones as well. In other words, two and half years of constitutional revision will 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 13, 2009
Author:          Filed under: amendment, constitutional change, Jason Gluck

Nepal’s Constitution Drafting Process

Nepal is in the midst of drafting a new constitution to address the aspirations of the many ethnic, religious, and linguistic groups that call Nepal “home”. This is a tall order, especially given that this constitutional process is part of a larger peace process aimed at, among other things, ending the decade-long “People’s War” launched by the Maoists. As political parties joust for control over the government (and the drafting of the new constitution), Nepal’s drafting process proceeds in fits and starts.

The 2006 Comprehensive Peace Agreement and the subsequent Interim Constitution brought the decade long People’s War to an end; delineated the framework that guides Nepal through the transition period; established a Constituent Assembly to draft the new constitution and perform legislative functions; and outlined the process for bringing the Maoists into the political mainstream (but tabled the discussion of what to do with Maoists cadres until a later date). Since this peace accord, Nepal elected its Constituent Assembly which has the chief responsibility of drafting the new constitution by May 2010. (There is a provision in the interim constitution that permits this deadline to be extended by six months, but only in case of emergency).

Following the April 2008 elections that saw the Maoists win the largest number of seats (approximately 38%, enough to make it the largest party in government but forcing the Maoists to establish a coalition government), the Maoists struggled to cultivate relationships to effectively govern. This led to the Maoists unable to adhere to the central tenet of the Interim Constitution – political consensus on critical issues. This inability to reach consensus reached a head in April/May 2009 when the then-Prime Minister Pushpa Kamal Dahal (Maoist) sacked the Chief of Army Staff (CoAS) over alleged insubordination. However, the sacking was reversed by President Ram Baran Yadav (Nepali Congress), leading to a political crisis. Prime Minister Dahal subsequently resigned his position, permitting the Unified Communist Party of Nepal – Unified Marxist-Leninist and the Nepali Congress party to form a coalition government. Although fragile, this coalition government remains in existence today. (For the most up-to-date information on this, please see the International Crisis Group’s recent report titled “Nepal’s Future: In Whose Hands?” available at

The parties, however, remain unable to reach a consensus on who should head the Constitutional Committee, the central committee tasked with drafting the new constitution. While the other drafting committees – 10 subject matter committees and 3 procedural committees – plow ahead with their work, the Constitutional Committee’s work has almost halted as it waits for the political parties to come to an agreement on the chairperson. With only 9 months left to complete the constitution, complete with a robust notice and comment period, the Constituent Assembly faces a daunting challenge of meeting its deadline to deliver a new constitution to Nepal.

I will post more soon on the critical issues facing the drafters of Nepal’s new constitution. I wanted to lay the political groundwork in order to set the stage.

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Published on August 13, 2009
Author:          Filed under: hp, Nepal, Terry Hoverter

The Puzzle of Unamendable Provisions: Debate-Impairing Rules vs. Substantive Entrenchment

Many constitutions purport to make some provisions immune from ordinary amendment processes. The Constitution of Turkey, for example, states that the character of the country as a secular democracy and republic cannot be changed, and forbids any proposal to amend these provisions. Thailand’s constitution entrenches the monarch as head of state. Other countries purport to prohibit amendments with regard to such features as term limits, official languages and religions, flags and anthems, and the boundaries of sub-national units.

As Javier Couso’s excellent post last week pointed out, Honduras and Chile have some constitutional similarities in this regard that bear further examination. Both countries have entrenched rules in the constitution, including certain unamendable provisions. Both go further in that, like the Turkish example above, they seek to prevent even a proposal to amend the constitution. As we found out in late June when President Zelaya was expelled from his country, the Honduran Constitution provides that any leader who proposes the abolition or amendment of term limits is subject to immediate removal from office. In the Chilean case, the executive or legislative branches are prohibited from calling for a referendum asking the public whether it wants a new constitution. Both of these rules seem designed to squelch constitutional debate. To the extent that fidelity to the constitution has an independent value, these provisions may hinder current citizens from effectuating welfare-enhancing changes that are favored by overwhelming majorities. The rules may thus indirectly encourage overturning the whole constitutional order, as Javier suggested.

I would tentatively suggest that we might begin by distinguishing the substantive provisions being entrenched from second-order proscriptions on debate or proposal of amendments. The latter seem to be of more serious concern, as they freeze the deliberative process that the constitution may be designed to encourage. Indeed, the prohibition on debate may conflict with other parts of the constitution that are of equivalent normative authority, in particular a right to free speech.

On the other hand, a substantive prohibition on amendment may perhaps be best effectuated by nipping proposals in the bud. And some issues such as the religious or republican character of the state may indeed be best handled by removing them completely from ordinary or constitutional politics. But others, in particular the issue of term limits, do not seem so contentious as to prohibit all discussion of them. Term limits, after all, restrict democratic choice. Perhaps the only conclusion then, is that constitution-makers should tread cautiously when purporting to make some provisions unamendable: different issues seem differentially suited to this approach, and second-order prohibitions on debate risk the unintended consequence of premature constitutional death.

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Published on August 13, 2009
Author:          Filed under: amendment, honduras, hp, Tom Ginsburg

Israel’s equality in education

Equality in education continues to be a main issue in the ongoing political and culture wars within Israeli society. On August 6, the Supreme Court of Israel, seating as High Court of Justice released an important ruling in a case dealing with a clash between the right to sectarian autonomy in education, and equality rights. In a nutshell, the Court ruled 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 claim when it collides with the overarching right to equality.

The background may seem quite exotic to those who are not familiar with the Israeli socio-political scene. An ultra-Orthodox girls school in the predominantly religious West Bank settlement town of Emmanuel established what was essentially a two-tier, ethnically-segregated, split school. One path was for students of Ashkenazi descent (Jews of European origin), most of whom followed the Hasidic tradition. The other path was for students of Sephardi (or Mizrahi) descent. Professor Edna Ullman-Margalit writes in Ha’Aretz (one of Israel’s most credible newspapers) that: “in order to segregate between the two schools, which are located on different floors of the same building (the Ashkenazi school on top, the Sephardi on the bottom), the Ashkenazi school begins its academic year a few days before the Sephardi school. The two schools begin their days at different times, and students go on break at different times as well. They have separate entrances divided by a plaster wall, and the yard has been covered with jute screening to separate the students. Each group has its own uniform, and even the teachers have separate rooms.” Pupils were automatically assigned to one of the two paths based on ethnic origin. The thinly disguised subtext was that of Ashkenazi superiority, ethnicity-based separation between elite and “blue-collar” education, and the like.

An NGO committed to fighting discrimination in education took the case to the Court. The school authorities (strangely, backed by the Education Ministry, which provides partial funding for the school), tried to persuade the Court that the separation was legitimate due to the different worldviews, traditions, and lifestyles of the two communities. Although in this case, the ethnicity-based segregation was blunt, the school’s “legitimate religious difference” claim may find some support in other conventions such as the long-standing practice of parallel nomination of both an Ashkenazi Chief Rabbi alongside a Sepharadi Chief Rabbi to oversee the provision of religious services to their respective communities. Synagogues for the two communities are often separated as some oral traditions, religious customs and practices have evolved in different ways over centuries of scattered contact between the two communities. The two groups are also represented by different political parties, and follow different spiritual leaders.

But the Court did not buy the two religious traditions argument. It unanimously denounced the school’s argument that the segregation was due to religious, not ethnic, considerations, calling it “camouflage for discrimination” cloaked in cultural disparity. The Court ordered the school to nullify pronto all discriminatory practices against Sephardi pupils, and abolish all protocols that separate between Ashkenazi and Sephardic students. It also ordered the Education Ministry to make use of all the legal means it possesses to rectify the situation, including revoking the school’s license and stopping the institution’s funding.

All of that, lest we forget, happens in a West Bank settlement, with the political baggage that these settlements carry. And as Ullman-Margalit correctly notes, this ruling comes merely a couple of years after the Court struck down a government policy of delineating so-called “national education focus zones” which had allotted preferential status to just four Arab towns, as opposed to nearly 500 Jewish towns (Arab-Israelis comprise approximately 20% of Israel’s citizenry). I suppose that optimists could say that courtroom battles, bitter as they may be, are a sign of an overall normalcy, and at any rate, are immeasurably more civilized than any other battles.


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Published on August 12, 2009
Author:          Filed under: education, equality rights, hp, Israel, Ran Hirschl