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Blog of the International Journal of Constitutional Law

Afghanistan’s Constitutional Opera Continues…

May 22nd marked what should have been the end of President Karzai’s first term as President according to the 2004 constitution. As Tom Ginsburg noted in his March 31 post, the Supreme Court justified the continuation of Karzai’s term until August elections to “ensure national consensus and stability in the country.” The stability argument is an important one – and has largely won the day for the moment – but is a thin legal pretext.

The Supreme Court’s decision could be read to have justified almost any delay, a fact that Karzai’s opponents are starting to make hay of as election season kicks off. Some members of parliament continue to protest the decision, as one opposition spokesman stated: “We believe this government does not have any legitimacy from today on, but because of national interest and maintaining stability in the country, we will not launch any demonstrations.”

Has this decision helped the standing of the court in the larger battle over who interprets Afghanistan’s constitution? On one hand, you have many Afghans (and embassies) recognizing the court’s decision. On the other hand, the facile reasoning in the decision has deepened the sense that the court is not independent, further strengthing calls within the parliament for the creation of a constitutional court-like Commission for the Supervision of the Implementation of the Constitution, described in my previous post. So the battle continues…

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Published on May 26, 2009
Author:          Filed under: Afghanistan, Alex Thier, hp
 

The Nepali Process — a Victim of Politics

For most of the past three years Nepal has been hailed as a veritable success for its transition from monarchy to democracy, peace process, interim constitution, elections, and formation of a Constituent Assembly (CA). Now with its government collapsed and a total breakdown in the delivery of basic services to the people, Nepal’s constitution-making process is all but frozen and will likely fail to meet its March 2010 deadline for completion.

The constitutional gridlock is in large part a symptom of the greater political discord in Nepal. Many political stakeholders believe that the Unified Communist Party of Nepal – Maoist (UCPN-M) have treated their plurality in parliament (nearly 40% of the seats) as a mandate to govern as if a majority, and in doing so have alienated their coalition partners, turning them to what one Nepali insider called “defensive mode.” Whether functioning on the defensive or with a different political agenda, several of the other political parties have made it their objective to block the UCPN-M from governing, without regard for the impact of the impasse on the people.

The most recent flashpoints were the firing of the Chief of Army Staff and the subsequent resignation of the Prime Minister. On May 3 the UCPN-M led government decided to fire the Chief of Army Staff, the latest in a series of developments that call into question the stability and loyalty of Nepal’s army. Nepal’s President (a member of the Nepali Congress Party) immediately reinstated the Chief of Army Staff, a move the UCPN-M declared unconstitutional. In protest the UCPN-M Prime Minister resigned on May 4. The CA has since been unable to form a new government, while boycotts and protests have derailed the legislative and constitution-making processes.

All the while the security situation deteriorates, basic services are not reaching the population, and far down on the list of concerns – the constitution-making process remains all but frozen. The impasse, whenever and however it is resolved, will likely not be in time for a final constitution to be ratified by March 2010. As a result, one of three outcomes for the constitution-making process seems likely. First, deadlines could be ignored. Second, the CA could be granted a six-month extension (an option under the interim constitution but only in the case of a formal state of emergency). Or third, the interim constitution could itself be amended to extend the time for drafting and ratifying a permanent one.

Time extensions for constitution-making processes are not in and of themselves serious cause for concern. Nepal’s political stalemate and the inability of its leaders to put governing ahead of politics, however, are.

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Published on May 22, 2009
Author:          Filed under: hp, Jason Gluck, process
 

Niger President joins those seeking to extend term

In Niger, President Mamadou Tandja has joined the ranks of world leaders seeking to amend national constitutions to do away with term limitations. The 70-year old Tandja, coming to the end of his second term, has initiated plans to hold a referendum on a constitutional amendment to do away with term limits.

As we have pointed out previously, term limits are not obviously required as a matter of democratic theory, and indeed, can be seen as somewhat problematic in that they limit the public from retaining a popular ruler. For whatever reason, there has been a recent wave of attempts to end term limits on executive office, perhaps because of the period of time that has passed since the third wave of democratization crested in the 1990s. Presidents who took power under constitutions with two-term limits will just now be forced out of office.

Scholarly analysis of debates over presidential re-election has been infrequent, but one recent contribution is by John Carey of Dartmouth, who has authored a book chapter entitled “The Reelection Debate in Latin America” in a forthcoming book called NewPerspectives on Democracy in Latin America: Actors, Institutions and Practices (William Smith, ed., Blackwell, 2009) Carey traces the history of reelction debates, noting that Simon Bolivar himself changed his views on them to become more accomodating of extended rule by a single individual. Carey focuses attention on the mode by which term limits are removed, distinguishing situations in which reforms are brought about by negotiations with the opposition from those in which reelection is brought about by plebiscite. Carey specutlates that the constraints on presidental authority are likely to be weaker under the latter system.

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Published on May 10, 2009
Author:          Filed under: hp, term limits, Tom Ginsburg
 

New bloggers on the way

We hope to expand the substantive coverage of topics in our forum beyond the processes of constitutional formation and issues of constitutional design, so as to also include constitutional cases and other topics of interest. We will soon welcome posts from Professor David Fontana of George Washington University Law School, one of the leading you comparative constitutional scholars in the United States. And hope to add even more commentators too…

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Published on May 7, 2009
Author:          Filed under: Tom Ginsburg
 

Constitutional regulation of the police

Therese Sjöström of International IDEA writes with a query about constitutional provisions related to the police. This is not a subject on which there has been much attention, and as yet we have no general report on the police on our site. We hope that those of you with relevant experience or information will comment on this post, which we will then forward to any interested parties as well as posting here.

Regulating the police is of crucial importance, particularly in post-conflict situations. One obvious channel for regulating police behavior is the presence of criminal procedure provisions which are designed to control their behavior in dealing with criminal suspects. Beyond that, however, some constitutions have provisions regarding appointments, limitation of police powers, allocating of command authority (particularly important in federal systems with multiple police forces) and sometimes describing special police commissions. Some require non-partisanship (Burundi 1998, Art. 62) while others, such as Bolivia’s constitutional text provided below, allow individual officers to have party membership even if the institution as a whole must remain nonpartisan.

Title VIII of Bolivia’s Constitution has a nice concise set of provisions:

Article 215 I. As a public force, the National Police has the specific mission of defending society and preserving public order and the carrying out of laws throughout the national territory. It exercises the police function in an integral manner, under single command, in accordance with its Organic Law and the laws of the Republic.
II. As an institution, it does not deliberate or participate in political party activities, although, individually, its members enjoy and exercise their citizen rights in accordance with law.

Article 216 . The forces of the National Police are subordinate to the President of the Republic through the Minister of Government.

Article 217 . To be appointed Commander-General of the National Police, it is necessary to be Bolivian by birth, a General in the institution, and meet requirements specified by law.

Article 218. In the event of international war, the forces of the National Police shall become subordinate to the Commander-in-Chief of the Armed Forces for the duration of the conflict.

Again, if anyone knows of other good examples, please forward or comment here.

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Published on April 24, 2009
Author:          Filed under: hp, Tom Ginsburg
 

New Report on Ombudsman

We have recently posted a new report on constitutional provisions on the Ombudsman. The ombudsman is originally a Scandinavian institution, dating at least back to Sweden’s 1809 constitutional settlement. But ombudsmen have become popular in many regions of the world, particularly with the spread of human rights movement in the postwar era. Over 20% of contemporary constitutions include an ombudsman of some type, though there is regional variation, with ombudsman institutions being relatively rare in the Middle East and East Asia.

Ombudsmen are empowered to challenge government actions that violate the rights of citizens, complementing and substituting for institutions of administrative law. In some sense the ombudsman can be seen as an alternative to a constitutional human rights commission, though a small number of constitutions (13 in our dataset) adopt both institutions. Ombudsmen powers also vary a good deal, ranging from mere recommendations to the ability to refer questions to the courts.

For more detail see the Reports tab of our website, www.constitutionmaking.org/reports.html, under the Regulatory and Oversight Bodies tab.

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Published on April 15, 2009
Author:          Filed under: hp, reports, Tom Ginsburg
 

Fiji’s Constitution “Repealed”

Fiji’s unstable constitutional bargain unraveled again last week as President Ratu Josefa Iloilo repealed the country’s constitution and reappointed the military chief as interim prime minister. The move followed a decision by the Court of Appeal, the country’s highest court, to overturn a lower court decision rejecting a challenge to the government’s legality. The Court of Appeal thus declared the country’s government to have been illegally installed after the 2006 coup. President Iloilo responded by dismissing the judges and establishing a “new legal order.” He promised new elections within five years, without stipulating what rules would govern them.

Since the ethnic Indian-dominated coalition won the general election in 1987, Fiji has witnessed a series of new constitutions and four coup d’etats. The 2006 coup, unlike its predecessors, was directed at an ethnic Fijian-led multiparty government, and this recent turn of events reflects the now-dominant role of the military in Fijian politics. International pressure has picked up, but it seems most probable that, at some point, a new round of constitutional drafting may be initiated.

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Published on April 12, 2009
Author:          Filed under: hp, Tom Ginsburg
 

Afghan Constitutional Crisis Avoided….

Over the weekend, it was reported that Afghanistan’s Supreme Court ruled that President Karzai can remain in office through the elections now scheduled for August, notwithstanding the explicit provision in Article 61 of the 2004 Constitution that the presidential term will end this May 22 . Unreported in the media was how this decision, which was praised by the US and the President, helps resolves an underlying issue in the Afghan Constitution about who has the ultimate power of constitutional interpretation. As detailed in an earlier post by Alex Their, the President’s office had contested the view of the Supreme Court that its power to review laws for conformity with the constitution included the power to interpret the constitution itself. This latest decision represents a certain degree of political pragmatism on the part of the Supreme Court but, perhaps more consequentially for the mid-term, also helps cement its view on the locus of constitutional interpretation.

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Published on March 31, 2009
Author:          Filed under: hp, Tom Ginsburg
 

And now Honduras…

One of the central findings from our (Elkins, Ginsburg, Melton) study of constitutional change over the last 200 years concerns the role of ambitious executives. Specifically, executives that are hemmed in by term limits or other constraints on their power often seek opportunities to replace or amend the constitution. We also find that such executives are often emboldened by such actions by their peers in neighboring or otherwise relevant countries.

Honduras, it appears, is on the verge of continuing in this tradition. Here’s an AP story from yesterday on the doings in Tegucigalpa.

Honduras contemplates constitutional changes
By FREDDY CUEVAS
Associated Press 2009-03-27 06:09 AM

The president of Honduras is moving ahead with plans for a nationwide poll on whether to change the constitution over the objections of the attorney general’s office, a top government official said Thursday.

President Manuel Zelaya says the 1982 constitution needs to be updated, and he wants the nation to vote on the issue in a public-opinion poll in June. If approved, a binding vote would be held in November.

But the attorney general office’s said Wednesday that the president has no authority to call for changing the charter. It also warned that if the vote is held, government officials could face charges and up to 10 years in jail.

Enrique Flores, the president’s legal adviser, said Thursday that the opinion poll is aimed at improving democracy.

“We aren’t afraid of going to jail for defending the people and our ideas,” he said. “And no one and nothing can stop this.”

Interior Minister Victor Meza also criticized the independent attorney general’s office.
“It is dangerous when state institutions succumb to politics, weakening the rule of law and corrupting institutions,” he said.

Under Honduran law, Congress must call for a constitutional assembly to change the constitution. But the current Congress opposes changing the document.

Zelaya has not said what changes he might propose in a new constitution. Recent reforms promoted by other Latin American leaders have expanded presidential powers and eased bans on re-election.

Zelaya’s four-year term ends in early 2010 and current law requires him to step down. General elections are scheduled for November.

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Published on March 27, 2009
Author:          Filed under: constitutional change, hp, Latin America, term limits, Zachary Elkins
 

In Memoriam: Vivien Hart 1938-2009

Our colleague Vivien Hart, a pioneer in thinking about how the process of making constitutions relates to the consolidation of democracy and human rights, recently passed away.

A professor of American studies at the University of Sussex since 1996 and director of the University’s Cunliffe Centre for the Study of Constitutionalism and National Identity since 1991, Hart focused her research on the potential for constitutions to facilitate dialogue and to transform conflict in divided societies. Hart is the author of Bound by Our Constitution: Women, Workers, and the Minimum Wage; Writing a National Identity: Political, Economic, and Cultural Perspectives on the Written Constitution (edited with Shannon C. Stimson); and Distrust and Democracy: Political Distrust in Britain and America. Her USIP Special Report, Democratic Constitution Making, can be found at http://www.usip.org/pubs/specialreports/sr107.html

Vivien’s examination of modern constitution making led her to conclude:

“Today’s framers seek to build new practices. Recent constitution-making processes have been accompanied by massive efforts to involve the public before, during, and after the text is finalized. Examples of new practice include: prior agreement on broad principles as a first phase of constitution making; an interim constitution to create space for longer term democratic deliberation; civic education and media campaigns; the creation and guarantee of channels of communication, right down to local discussion forums; elections for constitution-making assemblies; open drafting committees aspiring to transparency of decision making; and approval by various combinations of representative legislatures, courts, and referendums”

These innovations have suffused new constitution making processesaas part of a larger trend of democratization around the world. The impact of these changes, however, remains far from certain. There are problems of implementation – many of the public consultation efforts appear to be more for show than for meaningful public input. But even where there is a genuine effort, this opening of a once elite sphere for public contest has also brought its own complications, as Vivien noted:

“There is no simple transition to a new constitutionalism. Control of the process and of the ultimate distribution of power is at stake and participatory constitution making remains highly controversial. Constitution making has not been made easier, and by no means all of these innovations, nor of the constitutions that result, have been successful. But the process does move incrementally closer to the needs of the present day.”

Although Hart wrote about an “emerging right” under international law to participation, ultimately the heart of her argument about participation was utilitarian, arguing that a lack of public participation in an era of democratic expectations would undermine consensus and constitutional stability:

“It is in such an environment of conversational constitutionalism that the issue (startling to some traditionalists) of a right to participate in making a constitution has arisen. The idea is hotly contested by those who argue that only elites in modern societies possess the moderation, technical expertise, negotiating skills, ability to maintain confidentiality, and above all rational incentives to compromise so as to maintain power that make for effective constitution making. But it is hard to argue against democracy. The elite-made constitution, according to the new paradigm, will lack the crucial cultural element of legitimacy. It will do so because the process, not just the final text, is seen as flawed.”

Hart drew seven lessons from her review of recent experiments in constitution making:

  1. Multiple circumstances—economic, social, cultural, and the level of violence—affect the possibility of participatory constitution making.
  2. If it comes to a crunch, power still trumps participation (very obviously in Zimbabwe but also in societies making a fresh start, where the playing field might seem more even, as in East Timor).
  3. Elites still set the agenda for constitution making.
  4. The constitutions that result from high levels of participation still look very familiar, as the traditional genre with its categories of bills of rights and institutional architecture still predominates.
  5. The constitution-making process has been opened up to expectations of participation that derive from international law and from political practice.
  6. Participation makes a difference, especially insofar as it creates a better educated public.
  7. A committed elite such as that in South Africa may guide an educational process in ways that raise the standard of participatory democracy.

Vivien’s efforts lifted the thoughts and aspirations of those whose work she touched.

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Published on March 13, 2009
Author:          Filed under: Alex Thier, hp