Blog of the International Journal of Constitutional Law

Will the head of state in Canada please stand up?

Several years after you read Peter Russell’s excellent book on the evolution of the Canadian constitution (now in its 3rd edition), you will be forgiven for forgetting the details of the many twists and turns of Canada’s constitutional odyssey. You will likely remember, however, Russell’s anecdote in the preface in which he describes the motivation for the book. It seems that Walter Berns had turned to Russell in a seminar they co-taught to declare, “Peter, you Canadians have not constituted yourself as a people.” Ouch.

It is interesting, then, to cast our eyes now and then to the seemingly endless debate about Canadian sovereignty. There is a lot of good public opinion research on the subject, most of it suggesting increasing support for a proper republic over a monarchy, and perhaps the chance that Canadians will “constitute themselves as a people.”

Recently, I ran across an even more interesting survey item. The survey asked respondents simply to identify the head of state of Canada (not the person, the office). Easy, right? Well, apparently Canadians not only do not agree on who should be head of state, they don’t even agree about who — formally speaking — IS the head of state. Is it the Queen (25% say so)? The governor general (32%)? The prime minister (43%)? Really, the prime minister?

I take this as more evidence that Canada is the place to study constitutional design, which might explain why some of the best constitutional scholars hail from or reside there.

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Published on January 15, 2010
Author:          Filed under: Canada, hp, Zachary Elkins

Angola constitution coming soon

Press reports indicate that Angola’s parliament will adopt a new constitution in the new week, extending the rule of President Jose Eduardo Dos Santos, who has served since 1979. The constitution will replace the formally semi-presidential structure with a pure presidential system, replacing the prime minister with a vice president. It is seen as strengthening the presidency. The timetable for adoption of the constitution was hastened in response to last week’s attack on the Togolese football team in Cabinda.

Cabinda is a non-contiguous enclave rich in oil. A separatist movement has been fighting for independence for several decades, and violence has continued even after the broader Angolan civil war ended in 2002. One can thus see constitutional conflict as underpinning the attack on the football players–like other acts of terrorism, this attack will call attention to the situation there. The immediate result, however, appears to be a strengthening of the authoritarian hand that guides Angola.

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Published on January 14, 2010
Author:          Filed under: hp, Togo, Tom Ginsburg

“Allah” and “God” in Malaysia

On New Year’s eve, the Malaysian High Court reportedly ruled that the Catholic Church may lawfully use the term “Allah” to refer to “God.” The judgment is not yet available on the High Court’s website but useful reports are available at the Jurist, on the BBC, and in Time Magazine.
In the aftermath of the High Court’s judgment, Christian places of worship in Malaysia have been the target of at least six arson attacks. There have also been peaceful protests.
The High Court has since moved to calm the waters in the country, which has a Muslim majority. Just a few days ago, the High Court issued a stay of its earlier ruling, suspending the coming into force of its judgment pending the resolution of an appeal by the Attorney General to the higher Court of Appeal.
The Attorney General is quoted as describing this controversy as “a matter of national interest.” That it surely is. But this case should be of interest also to comparativists abroad because it will test the meaning of Article 3 of the Malaysian Constitution, which establishes Islam as the official state religion even as it preserves the freedom of religion for non-Muslims.
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Published on January 11, 2010
Author:          Filed under: hp, Malaysia, religion, Richard Albert

Kenya process continues

The constitution-making process in Kenya continues apace. The Committee of Experts has now submitted a revised harmonized draft to the parliament, which will then submit the document to a referendum. The revised draft retains the semi-presidential structure of the first draft, which has a directly-elected president and a prime minister. The Committee apparently believes that the semi-presidential system represents the best compromise between advocates for a pure presidential or parliamentary system. While comparative experience suggests this regime type may lead to downstream constitutional conflict, it seems to reflect a desire to retain the underlying political compromise between supporters of President Kibaki and Prime Minister Odinga.

A poll at the end of 2009, however, showed that a majority of Kenyans would vote against the draft. Respondents seem to be concerned about the power-sharing structure that the elites have compromised on.

Other changes in the latest draft include the elimination of a proposed system of regions that was not particularly well-developed in the first draft. Counties remain the basic unit of local governance, but the number has been reduced to the original 47 districts from 74 proposed in the first draft. There are a number of technical improvements in the draft, too, such as a mechanism for re-apportionment of county boundaries (Art. 220) and clarification of the term limits provisions, as well as a slight streamlining and reorganization of a bill of rights.

The draft, however, retains a number of unusual features. It has a separate constitutional court, but that courts decisions are apparently subject to appeal to the supreme court in all cases (the first draft had contemplated final decision in elections matters only). While the draft makes clear which court is superior, and thus avoids conflicts between the constitutional and supreme courts over that question, it is odd to have a “constitutional” court that in fact does not have the last word. Another oddity is that the prime minister is limited to ten total years in office. (No other democracies that we know of have term limits for prime ministers.)

Stay tuned for more as the draft moves along in the process.

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Published on January 9, 2010
Author:          Filed under: hp, Kenya, Tom Ginsburg

Popular Consultation in Sudan

Tom, you’re right to highlight Sudan as a possible “hot spot” for constitutional reform in 2010 (and beyond), but not necessarily in the context of “crisis.” This isn’t to say some sort of crisis is out of the question (or even unlikely), but it is not the only scenario in which meaningful constitutional reform might take place.

The two states of Southern Kordofan and Blue Nile are just now embarking on the CPA-mandated process of “popular consultation,” in which they are to ascertain the “will of the people” on “shortcomings in the constitutional, political, and administrative arrangements of the [CPA].” During 2010 both states plan to engage in intense broad-based grassroots consultations that will mirror other recent efforts at constitutional reform in Africa. (Just this week leaders of the two states were in Kenya speaking to officials from Kenya’s current and previous constitution-making exercises.)

Should the people of these two states decide “shortcomings” do in fact exist (a foregone conclusion if the process unfolds without undue manipulation or obstruction) new legal, administrative, and institutional arrangements are to be negotiated with Khartoum. While not explicitly stated, many believe the outcomes from these negotiations should be constitutionalized – either as amendments to the existing interim constitution or as part of a larger constitutional process.

While “popular consultation” envisions the two states remain part of the north – it provides a mechanism for them to negotiate wealth and power-sharing arrangements that could potentially remake northern Sudan into the type of federal state many believe critical to its sustainability. What’s more, this process is unlikely to end with Southern Kordofan and Blue Nile but instead could provide a model for other discontented areas of Sudan (most notably Darfur and the eastern states) to negotiate their own wealth and power-sharing arrangements.

While the eyes of most Sudan watchers will skip from the April 2010 elections straight to the January 2011 referendum – they will be missing a potentially critical and organic process unfolding in these two border states. Popular consultation is potentially important for the unifying and reconciling impact it could have on the states themselves, the changes it could produce in the relationship between the states and Khartoum, and the precedent it could set for other aggrieved areas in Sudan – all of which could impact Sudan’s constitution.

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Published on January 8, 2010
Author:          Filed under: constitutional change, consultation, federalism, hp, Jason Gluck, Sudan

Japanese “constitutional” change

The Democratic Party of Japan continues its efforts to transform Japanese political practice toward greater congruence with formal demands of the Constitution. Secretary-General Ichiro Ozawa is plotting strategy for a major reform bill, described here, that would reduce the power of the Cabinet Legislation Bureau to appear in the Diet. As a corrolary this would reduce its power to offer authoritative interpretations of constitution. These interpretations have been crucial in adjusting constitutional understandings of the famous anti-war Article Nine.

Thanks to Craig Martin, who has some good writing on the constitutional issues surrounding Japan’s Article Nine available here.

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Published on January 7, 2010
Author:          Filed under: hp, Japan, Tom Ginsburg

Comparative Constitutional Law Events at the 2010 AALS Annual Meeting

I am looking forward to attending the 2010 AALS Annual Meeting, held this year in New Orleans, starting today, January 6, and running until Sunday, January 10.

For the convenience of readers, I have taken a moment to look through the program to highlight the comparative constitutional law events on offer at the AALS.

All events, listed below in chronological order, will be held in the Hilton New Orleans Riverside:

Roundtable Discussion on Comparative Scholarship
Thursday, January 7, 2:00-3:30pm
Grand Ballroom B, First Floor

Breakfast of Section on Comparative Law
Friday, January 8, 7:00-8:30am
Grand Salon Sections 4 and 7, First Floor
* In collaboration with other sections. Tickets sold in advance.

Transforming National Security Law: Comparative Perspectives
Saturday, January 9, 1:30-3:15pm
Jefferson Room, Third Floor

The following panel discussions may also be of interest:

Re-Examining Customary International Law and the Federal Courts
Thursday, January 7, 9:00am-12:00pm
Napoleon Ballroom, Third Floor

The Interpretation-Construction Distinction in Constitutional Law
Saturday, January 9, 10:30am-12:15pm
Napoleon Ballroom, Third Floor

The Freedom of Religion and Belief Jurisprudence of the European Court of Human Rights
Sunday, January 10, 9:00am-12:00pm
Jefferson Room, Third Floor

If I have overlooked any of the comparative constitutional law panels or activities planned for the AALS–and indeed I may have–please fill in the gaps for our readers.

See you in New Orleans!

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Published on January 6, 2010
Author:          Filed under: AALS, hp, Richard Albert

Indo-Pakistani Constitutional Convergence?

The distinctions in constitutional structure between India and Pakistan—not to mention their differences in political culture—are as sharp as they are numerous. To name but a few, India is a federal state tending toward decentralization in a parliamentary system whose constitution proclaims its commitment to secular democracy. In contrast, Pakistan is a federal state with centralizing tendencies organized around a semi-presidential system which aspires to a model of Islamic democracy.

But India and Pakistan also share a number of constitutional similarities. One in particular is their constitutional grant of plenary power to the national legislature to amend the text of the constitution. As long as the legislature musters the requisite majorities, neither section 368 of the Indian Constitution nor section 239 of the Pakistani Constitution appears to impose any substantive limitation on the content of constitutional amendments in India and Pakistan, respectively.

Constitutional comparativists will know that the Indian Supreme Court has effectively overridden this plenary grant of power by interpreting the Indian Constitution as held together by a “basic structure” whose constituent elements are forever immune to formal constitutional amendment. According to the High Court, the Indian Constitution folds within itself a number of unalterable principles, including constitutional supremacy, republicanism, federalism, secularism, and the separation of powers. As a consequence, Indian courts may invoke—and indeed have in the past invoked, most notably in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789—this “basic structure” doctrine to invalidate duly-passed constitutional amendments.

We may be witnessing the emergence of a similar doctrine in Pakistan.

In a recent case, the Supreme Court of Pakistan invalidated an amnesty that shielded Pakistani politicians and other public officials from criminal and civil prosecution. (For helpful background of this case, I recommend the short briefing materials here at the Jurist.)

This is a significant judgment whose impact may reverberate in far-reaching ways for years to come.

But what may perhaps be most interesting for constitutional comparativists is a very short passage in the opinion. Near the end of its decision at page 14, the Pakistani Supreme Court wrote matter-of-factly that “salient features of the Constitution i.e. Independence of Judiciary, Federalism, Parliamentary form of Government blended with Islamic provisions, now have become integral part of the Constitution and no change in the basic features of the Constitution, is possible through amendment … .”

It is too soon to know whether the Pakistani Supreme Court intended to lay the foundation for something approximating the Indian basic structure doctrine. But that is certainly one plausible reading of this judgment—a judgment which could prove to be a pivotal moment in the constitutional evolution of Pakistan.

With that, let me thank Tom for inviting me to participate in this blog on comparative constitutionalism. It is an honor and a pleasure to join the team of scholars here, and I look forward to contributing to the conversation.

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New blogger on the site

I’m pleased to announce that Richard Albert of Boston College Law School has joined our ranks of bloggers. Professor Albert is one of the leading young scholars of comparative constitutional law in the United States. He’s published a number of papers, including an excellent article in the American Journal of Comparative Law on the fusion of presidential and parliamentary forms of government. Welcome, Richard!

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Published on January 3, 2010
Author:          Filed under: Uncategorized

Constitutional Hotspots for 2010?

I wonder if readers have thoughts on what locations will be likely to experience a constitutional crisis of some kind in 2010. Many of those that have had ongoing difficulties in the past year (Niger, Honduras, Zimbabwe) are likely to continue. Here are some other possibilities:

Thailand’s deep political divisions have not been resolved, and if by chance His Majesty King Bhumibol Ayuldeyej happens to pass to the next world, the situation may become even more volatile. (Shameless plug–I’ve recently written about it, and things have not stabilized.) One sign of underlying instability is that prosecutions for lese majeste–insulting the monarchy, still a serious crime in Thailand–are up from 17 in 2005 to at least 60 a year now. With ousted Prime Minister Thaksin Shinawatra now ensconced next door in Cambodia, there is mischief to be made. Of course, to predict constitutional instability in Thailand is like predicting snow in Chicago in winter.

2) Palestinian elections scheduled for this month have been postponed after Hamas refused to participate. What exactly is the legal status of the government? With the peace process at a standstill and continued conflict between Hamas and Fatah, it seems unlikely that any resolution or new constitutional agreement is in the offing.

3) Sudan: In one year, as per the 2005 Naivasha Agreement, the southern Sudan will have a referendum on whether or not to become independent. There have been significant disputes over the ground rules for the referendum, mostly resolved. But will the central government really tolerate the separation of such a significant amount of its territory?

I’m sure there are many oter possibilities out there as well.

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Published on January 2, 2010
Author:          Filed under: hp, hp; Tom Ginsburg, Palestine, Sudan, Thailand