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I·CONnect

Blog of the International Journal of Constitutional Law

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.

JRF

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

Untitled

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 http://www.crisisgroup.org/home/index.cfm?id=6269&l=1)

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.

RH

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

Notable new book on the constitutionalization of international law

It’s rare to come across a collection of papers and to feel that one may be witnessing something fresh and important, the birth of a field, or at least a subfield. But I’ve had that experience twice this year – once this spring, when I got my hands on the recent “Rule by Law” collection edited by Tamir Moustafa and our own Tom Ginsburg on judicial politics in authoritarian regimes, and again last month with “Ruling the World: Constitutionalism, International Law, and Global Governance,” both published by Cambridge.

After stumbling across the introduction by the editors, Jeffrey Dunoff and Joel Trachtman, on SSRN, I discovered much to my annoyance that the book had not yet been published. So, being both cheap and impatient, I conned – I mean, persuaded – the folks at the Cambridge booth at the MPSA annual meeting in Chicago (one of the best political science conferences around, in case you’re wondering) into sending me an evaluation copy for purposes of course adoption. The request was in good faith, but at the same time the book isn’t the most obvious fit with anything I currently teach. Now I’m tempted to come up with a course that it would fit.

The contributors bring a copious amount of intellectual firepower to bear at the fast-evolving and rich confluence of the constitutionalism, global administrative law, and international law literatures. The book picks up speed immediately with Thomas Franck’s foreword (how often do you come across a genuinely substantive 4-page foreword with interesting ideas?) and follows it up with the Dunoff and Trachtman survey of this nascent field, David Kennedy’s highly readable and sometimes provocative meditation on the idea of the constitutionalization of international law, and so on. (Sadly, there is nothing by any of the contributors to this blog, but really, there’s no need to boycott the book for our sake.)

As I said, I like the idea of assigning this book as reading for an upper-level law (or possibly political science) seminar. The difficulty is figuring out exactly what course it belongs in. Comparative constitutional law? International law? That is, I suppose, both a great merit and a practical disadvantage of genuinely working across intradisciplinary boundaries – by definition, the work no longer fits neatly in a preexisting box.

Is there perhaps a lesson here for academic publishers? Allow me to suggest one: keep being extra-lenient when it comes to passing out those evaluation copies, because you never know what nice things someone might say about the book on a blog.

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Published on August 12, 2009
Author:          Filed under: constitutionalization, David Kennedy, David Law, global administrative law, hp, international law, Jeffrey Dunoff, Joel Trachtman, MPSA, rule by law, ruling the world, Tamir Moustafa, Tom Ginsburg
 

Book on Oakes

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Published on August 11, 2009
Author:          Filed under: Uncategorized
 

Political Donations in Japan

A new article about the law of political donations in Japan:

In Japan, there has been increased scrutiny of companies’ general participation in the political process, in particular political campaign contributions. Over the past decade, Japan has placed new restrictions on companies’ political giving and has required greater disclosure of campaign contributions. Increasingly, shareholders are seeking to hold companies accountable for their campaign contributions. However, political activities generally require substantial funds and the situation in Japan is no different. Consequently, political activities require donations from corporations and individuals. In Japan the challenge to the ruling Liberal Democrats, and the broader political crisis, in the 1990s and early 2000s centered on a series of scandals involving payments to politicians for their huge election expenses. Political donations are classified by donor into two groups: corporate donations and personal donations. Under current law, corporate donations are often viewed as collusion between business entities and politicians. Therefore, donations to individual politicians are prohibited, unless the donation is to a single fund raising group managed by a particular politician. An individual politician can appoint only one organization as a single fund managing organization through which he can accept political donations from individuals. This exception is applicable only to personal donations. Donations to political parties can be divided into two categories: (1) those made directly to political parties; and, (2) those made to political funding organizations controlled by political parties. Corporations and individuals may donate money to either institution. However there is a limit on the political donations of corporations: corporations that have lost money over three consecutive years cannot make any political donations. Political donations made under such adverse circumstances may be considered to have unhealthy and unsound purposes; further, shareholders may not approve of such contributions.

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Published on August 11, 2009
Author:          Filed under: Uncategorized
 

Political Donations in Japan

A new article about the law of political donations in Japan:

In Japan, there has been increased scrutiny of companies’ general participation in the political process, in particular political campaign contributions. Over the past decade, Japan has placed new restrictions on companies’ political giving and has required greater disclosure of campaign contributions. Increasingly, shareholders are seeking to hold companies accountable for their campaign contributions. However, political activities generally require substantial funds and the situation in Japan is no different. Consequently, political activities require donations from corporations and individuals. In Japan the challenge to the ruling Liberal Democrats, and the broader political crisis, in the 1990s and early 2000s centered on a series of scandals involving payments to politicians for their huge election expenses. Political donations are classified by donor into two groups: corporate donations and personal donations. Under current law, corporate donations are often viewed as collusion between business entities and politicians. Therefore, donations to individual politicians are prohibited, unless the donation is to a single fund raising group managed by a particular politician. An individual politician can appoint only one organization as a single fund managing organization through which he can accept political donations from individuals. This exception is applicable only to personal donations. Donations to political parties can be divided into two categories: (1) those made directly to political parties; and, (2) those made to political funding organizations controlled by political parties. Corporations and individuals may donate money to either institution. However there is a limit on the political donations of corporations: corporations that have lost money over three consecutive years cannot make any political donations. Political donations made under such adverse circumstances may be considered to have unhealthy and unsound purposes; further, shareholders may not approve of such contributions.

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Published on August 11, 2009
Author:          Filed under: Uncategorized