Blog of the International Journal of Constitutional Law

Bolivia and the risks of dissensus

In last week’s constitutional referendum in Bolivia, 59% of voters approved of the proposed constitution. As the dust settles from that highly controversial affair, we can begin to make some observations.

Some constitutions “get done” through significant compromise, or at least logrolling. This was not one of those. Deep differences surfaced (and exploded) well before the government prepared its document. These differences, which have a regional (highland/lowland) component, are not likely to disappear. The new constitution commits the country to a political program whose proposal had been met by either jubilation or disgust by citizens. Certainly, other historic constitutions have included ambitious programs of social, political, and economic reform. In situations like Bolivias in which deep ethnic and economic inequality exist, the entrenchment in higher law of programs like land reform — reforms that are often politically difficult to implement — can be helpful.

Whether this constitution can last, however, is another question. Bolivia has been engulfed in violence in the last year over the appropriateness of the very reforms now enshrined in the constitution. Those opposed to things like redistribution and the removal of Catholicism as the state religion have not bought in. They remain opposed, perhaps even more bitterly. One thing that research has shown is that consensual constitutional processes lower the risks of premature constitutional death. In this sense, risks to the Bolivian document seem high.

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Published on February 2, 2009
Author:          Filed under: hp, Latin America, ratification, Zachary Elkins

Bolivia votes on constitutional amendments

“Bolivia is being refounded” said President Evo Morales, as his country went to the polls today to vote on proposed constitutional amendments that would extend his term. The amendments, which are expected to pass by a solid margin, are hardly exceptional in Bolivia (or in Latin America), where constitutions have been frequently amended or replaced.

The fact that power-hungry leaders are seeking to use constitutional mechanisms for extending their terms is a sign of progress in some sense, and beats the alternative of replacing the constitution outright. Bolivia had at least nine distinct constitutions in the 19th century and four or five in the 20th. If Morales has his way, they may be down to one or two for the 21st.

In neighboring Venezuela, President Hugo Chavez’ referendum to end restrictions on the number of terms he may serve will go to the polls in just under three weeks. Bolivarian, indeed!

Watch for updates on the Venezuelan situation here.

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Published on January 26, 2009
Author:          Filed under: hp, Latin America, ratification, Tom Ginsburg

Thailand’s Court resolves crisis–for now

Thailand’s Constitutional Court has issued a long-awaited decision disbanding the ruling party (the PPP). The decision had been widely anticipated, given the apparent violations of electoral law by the PPP. It assumed greater importance, however, because of the crisis perpetuated by anti-government protestors. With tacit support from the police, military and monarchy, they had occupied Bangkok’s airports, stranding hundreds of thousands of tourists and causing serious economic pain.

There are two points of general interest illustrated by this affair. First, like many other countries, Thailand has experienced “judicialization” with the courts resolving major political issues. In a forthcoming article available here, I argue that Thailand’s constitutional order is just an extreme case of a general trend toward “post-political” constitutions, reflecting a distrust of politics and a faith that technocratic institutions, like courts, counter-corruption commissions and ombudsmen, can somehow resolve problems in a neutral manner.

Second, courts seem to respond to signals of public opinion in such circumstances. Had the protests been put down or been less enduring, the Court might have sided with the PPP and found the violations of law de minimis. Some years ago, the Court’s predecessor had essentially taken this approach with regard to the party associated with now-discredited premier Thaksin Shinawatra. This time, the Thai Constitutional Court said it had “no choice” but its decision can also be read as furthering its own institutional interest in remaining relevant in the light of great public pressure. The Court’s prestige has arguably been enhanced by the whole affair.

As a normative matter, this state of affairs leaves much to be desired. Don’t like the government? Simply organize a large scale protest, bring the government to a halt, and then accuse it of not providing leadership. If the protest is big enough, the courts will have no choice to side with you. The key, of course, is to have enough support that law enforcement takes your side. But technocratic institutions like courts, the military or police, are no substitute for political institutions. I suspect this is not the final round of Thailand’s political crisis, as the government party will emerge again in some reconstituted form.

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Published on December 3, 2008
Author:          Filed under: hp, Tom Ginsburg

Nepal officially starts drafting

Nepal has been engaged in an extended drafting process for over two years, during which time political turmoil and the ending of the monarchy has shifted the landscape significantly. This week the constituent drafting assembly, elected in May, officially launched the process of drafting a permanent constitution, with a deadline of May 2008. A key issue will be federalism and devolution.

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Published on November 20, 2008
Author:          Filed under: hp, Tom Ginsburg

Russian amendments to extend term?

A frequent source of constitutional death or amendment is executive term limits. After serving two terms, former President Putin successfully re-engineered the Russian Constitution to facilitate his election as Prime Minister, allowing him to remain in office so long as he has the support of parliament (presumably a very long time.) Recently, Putin’s hand-picked successor Dimitry Medvedev has floated the idea of amending the Constitution to allow for an extension of the Presidential term to six years. This would allow the current lineup to remain in place for 12 years. Stay tuned for updates on whether this gambit succeeds.

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Published on November 16, 2008
Author:          Filed under: hp, term limits, Tom Ginsburg

Ecuador’s Constitution takes effect

Ecuador’s new constitution was confirmed last week and took effect yesterday. Following the leftward trend in Latin America, the document guarantees rights to clean water, pensions and health care, while also allowing President Rafael Correa to serve another term potentially. Elections will be held in February.

Why is it that Correa was able to get through reforms through a referendum when his fellow Bolivarista Hugo Chavez failed? One possibility is that Correa has been in office less time, and took power initially in a free and fair election.

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Published on October 22, 2008
Author:          Filed under: hp, Latin America, Tom Ginsburg

Iraq’s Constitutional Review

For almost two years Iraq’s Constitutional Review Committee (CRC) has been working on a package of constitutional amendments to submit to the Council of Representatives (CoR) and then for popular referendum. This tumultuous process has witnessed highs (the May 23, 2007 interim report that included several substantive amendments that would have fundamentally altered the constitutional treatment of oil and other natural resources and redistributed powers between Baghdad and the regions to create a more functional federal system) and lows (the complete repudiation by the KRG of these same amendments two days later). Since May 2007 the CRC has been largely stuck in neutral, and the interim report all but forgotten in Parliament. This past July, the CRC submitted a non-final final report to the CoR — “final” in that it included the complete report from May 2007 (even the proposed amendments later repudiated by the KRG) and “non-final” in that the report noted five matters (including those objected to by the KRG) that were being referred to senior Iraqi officials for further deliberation and, hopefully, compromise and resolution (which could then be incorporated back into the report).

Last week Speaker of the Iraq Council of Representatives Mashadani added an unexpected plot twist when he announced that immediately after the Eid (due to end on Oct. 5) the Presidency Council of the CoR would put the constitutional amendments on the parliamentary agenda for a vote — regardless of whether the political leadership had reached agreement on the remaining issues. This reckless move, if followed through, will necessarily result in one of following events:

1) The entire amendment package could fail. The Kurds will absolutely vote against it. The question will be whether they can convince their usual parliamentary allies (ISCI and Dawa) to do the same. This would end the special constitutionally-mandated review process and close the window on any short or medium term chance of achieving critical constitutional change.

2) The entire amendment package could pass. This would present two new problems. First, the Constitution requires that a national referendum take place within two months of the CoR passing any amendments. Iraq is already way over its head with pending provincial elections – a national constitutional referendum in the next two months is a technical impossibility. Second, the entire package would be voted down at referendum, as the three Kurdish provinces would all vote against it. (Three provinces voting “no” automatically vetoes the amendments). Again, leading to the result that a unique opportunity to improve upon the Constitution would be lost.

3) Some amendments pass and some fail. (While a reading of the Constitution suggests this should not happen — the CoR should have one yes/no vote on the entire package of amendments — there is some support for this in Parliament). This too would be a lost opportunity since critical provisions that after further negotiation might have passed will be voted down due to the haste with which the vote was called. Further, those amendments that did pass would create the same technical difficulties at referendum as explained above. And finally, even if a referendum were organized, with the key matters left out of the package Iraqis would likely not care enough even to come out to vote for it. (With only intermittent electricity, much of the country without potable water, and the constant fear for one’s life I imagine it would be very difficult to get too excited over a constitutional amendment creating a second chamber of parliament.)

The Seaker’s motivation for calling this vote is not known. The constitutional review has largely been a battle with Arabs (Sunni and Shia) on one side and Kurds on the other. In the wake of the passage of the provincial election law, which saw a significant Kurdish compromise, Mashadani may see this as a good time to continue to put pressure on the KRG. He should be counseled (and cajoled, if necessary) into rethinking. The constitution review is too important to be used as a political tool. Already Shia and Sunni have reached critical and fundamental agreements on some of the most important and contentious matters facing Iraq today. Kurds must be brought on board through negotiation and compromise – not political gamesmenship. Only in this way will the Constitution ever represent a national compact and a workable template for Iraq’s federal system.

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Published on October 3, 2008
Author:          Filed under: hp, Jason Gluck

Samak steps down

In the end, Thailand’s governing coalition decided not to renominate Prime Minister Samak after he was removed from office by the Constitutional Court. Samak has resigned from politics, and maneuvering begins to replace him. Details from the Bangkok Post are here.

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Published on September 14, 2008
Author:          Filed under: hp, Tom Ginsburg

Thai Prime Minister out, crisis likely to continue

The Constitutional Court indeed did find that Thailand’s Prime Minister Samak had to step down–but his party announced they would re-nominate him for the very same post! Stay tuned for more details.

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Published on September 12, 2008
Author:          Filed under: hp, Tom Ginsburg

Thailand’s constitutional crisis may be resolved by–a cooking show?

Since its adoption in late 2007, the new post-coup Thai constitution has been caught up in a series of disputes before the courts and indepedent electoral commission about the conduct of the governing party, which is associated with the deposed (now exiled) Prime Minister Thaksin Shinawatra. Demonstrations and counterdemonstrations continue on the streets of Bangkok. Now, it appears that the long crisis may come to a close because of the allegation that the current Prime Minister Samak Sundaravej violated the law by receiving payments to appear on a cooking show. The Constitutional Court is to decide whether he is to be removed from office, which would might force new elections. Details here.

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Published on September 8, 2008
Author:          Filed under: hp, Tom Ginsburg