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I·CONnect

Blog of the International Journal of Constitutional Law

I-CONnect Symposium on the Chilean Constitutional Referendum –The Illusion of Indigenous Representation

—Guillermo Pérez, Researcher at Instituto de Estudios de la Sociedad; Graduate Student of the Ph.D. in Government of the University of Texas at Austin.

On September 4th, 2022, Chileans overwhelmingly rejected the text drafted by the Constitutional Convention, even after achieving levels of citizen participation that were widely considered unprecedented. The “reject” (“rechazo”) option alone garnered over 350,000 more votes than the total number of votes cast in the referendum that began the constituent process two years ago. The proposal of the Constitutional Convention was rejected in every single one of Chile’s 16 regions and in 338 of 346 counties. The numbers show that counties with the largest indigenous populations decided to reject the proposal by even larger margins than most counties. In Alto Biobío, where 84.2% of the population is indigenous, the “reject” option received 70.75% of the vote share. In Saavedra, where the indigenous population is 79.6%, the “reject” option won 68.05% of the votes. An extreme case is Colchane, where the “reject” option won an astounding 94.7% of the votes. In short, the text lauded as the “Indigenous Constitution” was roundly rejected by most of those it claimed to represent.

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Published on September 29, 2022
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Will the Netherlands Finally Embrace Constitutional Adjudication?

—Maartje De Visser, Singapore Management University, Yong Pung How School of Law

[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]

On 1 July 2022, the Dutch government, acting through its ministers for the Interior and Legal Protection, sent a letter to parliament announcing its intention to move forward with the introduction of constitutional review of statutes by the courts. At present, such review is not possible in the Netherlands: on the contrary, the country’s constitution has contained an explicit ban on judicial scrutiny of legislation since 1848. In its current guise, Article 120 declares that “The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.” This prohibition has been read as preventing any assessment of the substantive conformity of laws as well as the manner of their adoption with the formal constitution, while unwritten constitutional principles are similarly unavailable as a yardstick to measure statutes against. (To be clear, courts can, and do, assess legal norms below the rank of statute for their constitutionality, while they are also competent to verify the compatibility of such norms as well as of statutes with directly effective provisions of international law.)

The letter is intended to function as the precursor to a proposal to formally amend Article 120, which – if successful – will have been a long time in the making. There have been repeated suggestions to remove or qualify the ban in Article 120, notably from the late 1960s onwards. The most promising of these consisted of a 2002 private member bill that cleared the first stage of the Dutch constitutional amendment procedure but ended up languishing in political purgatory before eventually being withdrawn. The fact that the classic arguments against judicial scrutiny – legal certainty, the separation of powers, and the countermajoritarian objection – have long carried the day is often explained with reference to the traditional consociational character of the Dutch political system and the constitution’s position at the periphery of public discourse, with the consequence that it lacked salience as a basis for review.

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Published on September 28, 2022
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What’s New in Public Law

—Anubhav Kumar, Advocate & Researcher, Supreme Court of India 

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. Constitutional Court of South Africa gives Parliament two years to remedy defects in Copyright Act & declared sections of the Copyright Act invalid.
  2. The Supreme Court of Canada has ruled, that Taking Off a Condom without Consent is Rape.
  3. The Tennessee Supreme Court ruled that a Canadian attorney who was already admitted to the New York bar should be allowed to practice in Tennessee, too.
  4. The Constitutional Court has ruled that the 5-year time limit for lawsuits against parceling plans.
  5. Constitutional Court orders Western Cape woman, 85, to vacate the home she has occupied since 1947
  6. Austrian Constitutional Court rules that cannabis ban is not unconstitutional
  7. Iraq’s Supreme Court says it cannot dissolve parliament.

In the News

  1. Canada to drop vaccine mandate at border Sept. 30
  2. Supreme Court of India to live-stream its Constitution Bench proceedings from September 27
  3. Dodik Slates Bosnian Court Ruling Against Republika Srpska Property Law
  4. Pakistan Court To Indict Imran Khan In Contempt Case.
  5. Yeshiva University halts all student club activity after Supreme Court LGBTQ ruling.
  6. House Democrats introduce bill to expand U.S. appeals courts.
  7. Seychelles’ Constitutional Court to review petition on 10th amendment to Constitution – should the army work alongside the police?

New Scholarship

  1. Stephen Gardbaum, Democratic Design and the Twin Contemporary Challenges of Fragmented and Unduly Concentrated Political Power (2022) (forthcoming in Tom Ginsburg, Aziz Huq, Tarun Khaitan, eds., The Entrenchment of Democracy: The Comparative Constitutional Law of Elections, Parties, and Voting) (exploring whether the potential benefits of “semi-parliamentarism” can be adapted to reduce the contemporary pathologies of party systems and better balance the values of democratic governance in all regime types).
  2. Haimo LI, Kim, Sungmoon, Theorizing Confucian Virtue Politics: The Political Philosophy of Mencius and Xunzi (2022) (discussing and analyzing “what the Confucians had to say about virtue, moral character, and moral edification of the people”)
  3. Christoph Krenn, The Procedural and Organizational Law of the European Court of Justice (2022) (addressing the normative literature of court, its functioning, transformation, the concern for the effectiveness of EU law led to the reinvention of its procedural and organizational design, the role of the judge and argues that it is time to democratize the Court and shows ways to do this.)
  4. Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg, Lauren Sudeall, Racial Capitalism in the Civil Courts (2022) (exploring how civil courts function as sites of racial capitalism. The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individual)
  5. Briana Rosenbaum, Deflect, Delay, Deny: A Case Study of Segregation by Law School Faculty (2022, Forthcoming) (seeking to excavate the truths of one law faculty’s segregationist history. it tells the story of Rudolph Valentino McKamey, a black citizen of Knoxville, TN who applied to UT Law in June 1948 but was denied.)
  6. Daniel Susser, Data and the Good? (2022) (exploring the need for alternative substantive conceptions of a good digital society)

Calls for Papers and Announcements

  1. The Global Summit on Constitutionalism is now accepting submissions for individual papers and fully-formed panels.
  2. Hasselt University is pleased to announce the third edition of the Young Legal Researchers Conference, on 16 December 2022 at the Law Faculty of Hasselt University (Martelarenlaan 42, 3500 Hasselt) in a hybrid format. The overarching theme of the conference is: “Back to the basics: Fundamental principles of law in contemporary challenges”. Details are available here.
  3. The CEU Department of Legal Studies and the ESIL Interest Group on Social Sciences and International Law are thrilled to announce the call for papers for the 2023 Conference on The Aesthetics of International Law on 12-13 May 2023. The deadline of submission is 31st October 2022. Details are available here.
  4. The Department of Sociology at Dartmouth College invites applications for a full-time tenure-track appointment as Assistant Professor beginning Fall 2023. Application is available here.
  5. Environmental & Energy Law Programme (EELP) is seeking a Legal Fellow for 2023-2024 with the potential to renew for one additional year. The fellowship is a full-time, internally funded position in Cambridge, Massachusetts beginning in the fall semester. The Fellow will work on current projects, including the Biden administration’s regulatory actions to address climate change and environmental protection.
    Details are available here.
  6. The European Yearbook of Constitutional Law is pleased to announce a call for submissions for its fifth volume (2023) on Constitutional law and the algorithmic state. Details are available here

Elsewhere Online

  1. Dennis Emilio Hércules, Why Central America Needs More Transparency and Public Scrutiny Over Congressional Appointments, IACL-AIDC Blog
  2. Megha Mehta, Centering Women’s Voices – A Feminist Analysis of Religious Freedom and the Hijab Case, Indian Constitutional Law and Philosophy
  3. Nicolás M Perrone, How Corporations Shape International Economic Law: A Reply to Taylor St John, EJIL Talk
  4. Neil H. Buchanan, The End of a Pandemic Is Not an All-Clear Signal — But It Is Good News All the Same, Dorf on Law
  5. Dmitry Kurnosov, Russia without Strasbourg and Strasbourg without Russia: a preliminary outlook , Strasbourg Observers
  6. Gleb Bogush, Mobilisation: Russian Escalation in the War Against Ukraine and International Law, Verfassungsblog
  7. Avanti Deshpande, Addressing ‘Honour Killings’ in India: The Need for New Legislation, Oxford Human Rights Hub
  8. Rana Touseef Sami, Sustainability and Competition Law: Interplay, Global Developments and Relevance to Pakistan, Courting The Law
  9. Louise du Toit, The Shell Case: A Victory for Social and Ecological Justice in South Africa, African Law Matters
  10. Swapnil Tripathi, The Governor should have consulted the Advocate General and not the ASG, The ‘Basic’ Structure
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Published on September 26, 2022
Author:          Filed under: Developments
 

I-CONnect Symposium on the Chilean Constitutional Referendum – Participation, representation and deliberation in constitution-making: tentative ideas from the Chilean case

—Esteban Szmulewicz Ramírez, Leiden University and Universidad Católica del Norte, Chile[1]

On September 4, 2022, Chile held a referendum on a new Constitution, drafted by a directly elected Constitutional Convention. The proposed text introduced interesting innovations, like gender parity in representative institutions, a high degree of decentralization through a so-called “regional State”, clear concern for climate change and the protection of the environment, recognition of indigenous rights, among many other features.[2] Even the process itself can be considered a laboratory in constitution-making, since it incorporated a large number of participatory mechanisms, in just a one-year timeframe.

Considering this context, it is all the more puzzling how the process transited from an almost 80% approval of the idea of a new Constitution (October 2020) to a roughly 62% rejection of the proposed text. Even more striking, rejection won in all but 8 of the country’s 346 municipalities, and in the poorer areas the difference was even larger than in more well-off localities, in an election marked by the return to compulsory voting which resulted in a historic voting turnout.[3] What factors can account for these results? What lessons can we learn for future constituent processes? Although there are many competing hypotheses, in this piece I will apply insights from the literature on constitution-making and particularly on the need to properly balance participation, representation, and deliberation.[4] 

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Published on September 25, 2022
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I-CONnect Symposium on the Chilean Constitutional Referendum – The Paradox of Constitution-Making in Democratic Settings. A Tradeoff between Party Renewal and Political Representation?

—Sergio Verdugo, IE University Law School

Introduction

In 1995, Jon Elster concluded his landmark article by identifying the paradoxes of constitution-making.[1] Constitution-making processes are unlikely to occur without the urgent need that a political crisis triggers. Even though political crises are arguably necessary for constitutional replacement processes, those crises can also create unfavorable conditions for good constitution-making. In this comment, I argue that the failure of the proposed Chilean constitution of September 2022 connects to a more specific version of the Elster paradox. Democratic states attempting to change their constitutions typically face a strong push for renewing the political elites and party structure. However, the calls for political renewal also typically favor highly participatory processes requiring constitution-making bodies that can represent citizens. The problem is that, under those conditions, political representation becomes a challenging goal to achieve. Even a highly inclusive Constitutional Convention such as the Chilean Convention is exposed to this risk. Before I get to the Chilean case, I’ll briefly reflect on the dangers of constitution-making in democratic settings.

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Published on September 24, 2022
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Introduction: Symposium on the Chilean Constitutional Referendum

—David Landau, Florida State University College of Law[1]

On September 4, 2022, after a two month campaign, voters headed to the polls and rejected the draft Chilean constitution by an overwhelming margin – 62 to 38 percent. With mandatory voting in effect for the first time in recent years, turnout was extremely high. About 13 million of the country’s roughly 15 million registered voters turned out, and the “no” vote prevailed in all but 8 of the country’s 346 electoral districts.

Since the reject option had been polling above approve for months, the result was not particularly surprising. But the substantial margin was surprising, and significantly above what most polls had shown.  In comparative terms as well, the result is striking, since according to work by Zachary Elkins and Alex Hudson, the yes vote has prevailed in 94 percent of these kinds of post-constitution making exit referendums held around the world. The outcome in Chile thus requires explanation. This is particularly true since it followed massive social protests in 2019 leading to a call for a Constitutional Convention, an 80 percent majority in a 2020 entry referendum calling for scrapping the Pinochet-era 1980 constitution, and the one-year work of a popularly-elected Constitutional Convention.

What went wrong, and what can we learn from it? In general, and acknowledging that we may not yet have the data to provide full explanations, analysts have suggested several different classes of argument.

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Published on September 23, 2022
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What’s New in Public Law

—Irina Criveț, PhD Candidate in Public Law, Koç University

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The U.S. Supreme Court Justice Sonya Sotomayor permitted Yeshiva University to refuse to recognise an LGBTQ student club that the Jewish school in New York City has said violates its religious values. Later, the U.S. Supreme Court ruled that Yeshiva University will have to continue recognising the LGBTQ student organisation.
  2. Michigan constituents will vote in November on whether to protect abortion rights in the state constitution.
  3. Bosnia’s Constitutional Court has ruled that Republika Srpska’s public broadcaster, RTRS, slandered the journalist Vladimir Kovacevic who was brutally attacked covering mass protests in Banja Luka four years ago.
  4. The Supreme Court of India will hear over 200 petitions challenging the Citizenship Amendment Act that aims to grant citizenship to illegal immigrants belonging to the Hindu, Sikh, Buddhist, Christian, Jain, and Parsi communities who came to the country from Pakistan, Bangladesh, and Afghanistan on or before 31 December 2014, but excluding Muslim immigrants.
  5. Angola’s Constitutional Court rejected a vote recount from the runner-up in last month’s election, confirming the ruling Popular Movement for the Liberation of Angola as the winner.
  6. New Zealand’s  Supreme Court dismissed the application for an appeal Māori seeking a guarantee over Nelson Tenths land by arguing that the interests of local Maori were sufficiently protected in terms of interim relief due to undertakings given throughout the recent proceedings.

In the News

  1. Justice Abdu Aboki steps down from the Supreme Court of Nigeria after turning 70.
  2. Pakistan’s Supreme Court has started the new judicial year with five vacant posts of judges.
  3. Five international organisations have submitted an amicus to Colombia’s Constitutional Court calling for respect of the rights of Indigenous Wayúu communities peacefully fighting the expansion of Latin America’s biggest coal mine.
  4. Professor Marco D’Alberti was appointed as Judge of the Constitutional Court of Italy.
  5. The Russian Federation has ceased to be a Party to the European Convention on Human Rights.

New Scholarship

  1. Suryapratim Roy & Alexandru Gociu (2023) People v Arctic Oil: Context, Judgement, and Takeaways for Future Climate Litigation, forthcoming in Stefan Weishaar and Kars de Graaf (eds) The Future of Environmental Law: Ambition and Reality, Edward Elgar (analyses the People v Arctic Oil judgement within the political context of Norwegian oil policy, focusing on the policy coalition that preferred a ‘weak sustainability’ to a new policy coalition in favour of more robust environmental protection and argues that the future climate litigation should consider ‘the potential of the right to a healthy environment in shaping climate policy, and the logic in viewing extraterritorial emissions as a domestic policy concern’)
  2. Melissa Murray (2022), Legitimising Illegitimacy in Constitutional Law, Washington University Law Journal (investigates why illegitimacy has been sidelined in constitutional law curricula and argues that the sidelining of illegitimacy in constitutional law reflects the liminal status of nonmarriage and nonmarital families in law and society more generally)
  3. Melissa Crouch (2022), Judicial Loyalty to the Military in Authoritarian Regimes: How the Courts are Militarised in Myanmar, Law & Social Inquiry (explains the role the judicial-military relations play in authoritarian regimes by focusing on a case study of judicial profiles in Myanmar)
  4. Dragoș Călin, Self-Governance of the Judiciary System in Romania: Dependent Judges in an Independent Judiciary, Justin Working Papers Series & Commentaries (presents how changes made in the justice system in Romania between 2017 and 2019 produce various legal effects, including the creation of a category of dependent judges within an independent judiciary)
  5. Silvia Serrano Guzman, Ariadna Tovar Ramirez & Oscar A. Cabrera (2022), Commercial Speech and the Prohibition of Tobacco Advertising: The Colombian Constitutional Court Approach, Journal of Law, Medicine and Ethics, Vol. 50 (support the decision of the Columbian high court to ban the advertising and promotion of tobacco products)
  6. Chibli Mallat & Mohammed Abdulrahman (eds) (2022), Three circles and a few promises in The Promise of Constitutionalism in the Arab Gulf, Brill (this special issue of Abhath addresses constitutionalism in the six Arab monarchies of the Gulf: Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates)

Calls for Papers and Announcements

  1. The Global Summit on Constitutionalism is now accepting submissions for individual papers and fully-formed panels.
  2. The Journal of Constitutional Law issued by the Constitutional Court of Georgia with the support of Robakidze University calls for papers for scholars, researchers and experts in constitutional law for Volume 2, 2022. The journal aims to publish: academic papers, articles, case reviews, and book reviews. The DL for submission is no later than October 15th, 2022.
  3. The special issue of the Law Text Culture 2023, volume 27, seeks scholarly articles or other creative works such as poetry, short stories, auto-ethnographies or photo essays, that engage with a range of urgent, critical and interconnected to the theme of the issue ‘Imagining Decolonised Law’. A 400-500 words abstract should be submitted to the guest editions through email by  October 31, 2022.
  4. The Human Rights Education Review invites papers for a Special Issue on the intersection of language learning and human rights education. An extended abstract of no more than 300 words must be sent to the Managing Editor of Human Rights Education Review Marta Stachurska-Kounta: marta.m.stachurska-kounta@usn.no by October 24, 2022.
  5. The Editorial Board of the Review of European Administrative Law (REALaw) is pleased to announce the 2022 REALaw Forum for Young Scholars, which will take place in Toledo (Spain) on 6 and 7 October 2022, and will be hosted by the Center for European Studies of the University of Castilla-La Mancha (UCLM), invites participants for online attendance to register at https://www.uclm.es/centros-investigacion/cee. The overarching theme of the 2022 Forum is European Administrative Law and the Challenges of Uncertainty.
  6. The Nordic CONREASON Project: Nordic exceptionalism? Mapping Constitutional Reasoning in the Nordic Countries organises a webinar on the Danish Supreme Court on October 4, 2022. The Webinar will be held by the Danish researcher of the project, Professor Helle Krunke (University of Copenhagen), on October 4th 2022, 11:15-13:00 CET (UTC +1), on Zoom.

Elsewhere Online

  1. Karan Gupta, ‘Atypical’ Love: The Supreme Court’s Decision in Deepika Singh vs CAT,  Indian Constitutional Law and Philosophy
  2. Avanti Deshpande, Addressing ‘Honour Killings’ in India: The Need for New Legislation, Oxford Human Rights Hub
  3. Roberto Gargarella, Rejection of the New Chilean Constitution: Some Reflections, Oxford Human Rights Hub
  4. Loveday Hodson and Kseniya Kirichenko, Rosanna Flamer-Caldera v Sri Lanka (CEDAW, 2022): The First International Case on Lesbian Criminalisation, Oxford Human Rights Hub
  5. Pierre de Vos, It Can Be Dangerous When National Security is Used as a Cover to Dodge Accountability, Constitutionally Speaking
  6. Tereza Žuffová-Kunčová and Michal Kovalčík, Czechia’s First Climate Judgment, Verfassungsblog
  7. André Lecours, The media coverage of the Catalan self-determination process in Canada, Centre for Constitutional Change
  8. Josh Kimblin, New Prime Minister, New Climate, Same Constitution, Centre for Constitutional Change
  9. Michael Foran, Interpretation After the Human Rights Act? The Principle of Legality and the Rule of Law, UK Constitutional Law Blog
  10. Sinisa Jakov Marusic, Environmentalists Want to See North Macedonia’s ‘Ecocide’ Law Enforced, Balkan Insight
  11. Andrew Koppelman, Religion and Samuel Alito’s Time Bomb, The Hill
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Published on September 21, 2022
Author:          Filed under: Developments
 

The Curious Case of the Taliban’s Judicial Empowerment

—Shamshad Pasarlay, Visiting Lecturer, The University of Chicago School of Law

[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]

Constitutional theorists have long debated a puzzling question: why do political officeholders choose to impose limits on their power and authorize apex courts to enforce those limits? Some of the most distinguished scholars have argued that political elites empower apex courts out of self-interest. They point out that political decision-makers vest increasing authority in top courts to use them against their opponents. Such judicial empowerment is most likely when incumbent officeholders foresee uncertainties at the ballot box in a competitive framework of electoral politics.[1] To put it differently, incumbent politicians, whose electoral prospects seem uncertain, turn to courts and empower them to safeguard or entrench “their political hegemony by insulating policy making in general, and their policy preferences in particular, from the vicissitudes of democratic politics.”[2] Other prominent theorists suggest that in revolutionary contexts, apex courts take central stage and begin to “preserve core revolutionary principles once the […] generation” instituting the revolution disappears from the political landscape.[3] In this “generational” model, apex courts emerge as the loyal guardians of the revolutionary ideals of the founders and compel political officeholders to accept court’s authority as the final judges of constitutional compliance. The transfer of authority from majoritarian institutions to apex courts is not limited to democratic orders. In fact, for a variety of different reasons authoritarian regimes, too, tolerate judicial independence and award courts sufficient room and influence in political affairs.[4] The debate over why political elites choose to limit their power by empowering courts continues to revibrate in academic circles.

The supremacy of the top court in the Taliban’s autocratic Islamic Emirate in Afghanistan presents a curious case, which may be of interest to scholars who study courts. Here, I wish to briefly explain why the Taliban Supreme Court has assumed a central role in law and politics at such an early stage in the Taliban’s return to power, and why the Taliban’s autocratic rulers have so far tolerated the Court’s independence and influence.

Upon returning to power in August 2021, the Taliban wasted little time in re-establishing the Islamic Emirate that they had initially formed in the 1990s. The Taliban’s Islamic Emirate, though poorly theorized, is remarkably autocratic. It is helmed by a supremely powerful Amir al-Mominin (commander of the faithful) who sits as the head of the state and the government. The Amir exercises absolute power and “there are no meaningful, enforceable constraints” on his authority. Obedience to the orders of the Amir is mandatory, and the state’s apparatus would be deployed to punish those who disobey the Amir’s commands.[5] Power flows from the highly centralized Amir down to the council of ministers – the executive branch – and to the legislature (the Taliban have not yet formed a separate legislative branch). The Amir appoints all members of the executive branch as well as the legislature – an institution which was defined as the Islamic Council in the Taliban’s 1998 Constitution. The Council of Ministers conducts daily administrative affairs, but the Amir reserves the right to veto the Council’s decisions in case of disagreement. Absent a separate legislative branch, it is the Amir who, it seems, has assumed the role of a supreme lawgiver. Part of the law in the Taliban’s Islamic Emirate comes as binding decrees by the Amir.

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Published on September 16, 2022
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International Democracy and United States Constitution Day: Why American Constitutionalists Should Pay More Attention to Democracy

—Miguel Schor, Professor of Law and Associate Director of the Drake University Constitutional Law Center

By a happy calendrical coincidence, United Nations International Democracy Day, which falls on September 15, is observed two days before United States Constitution Day. This coincidence provides an opportunity to reflect on the linkages between democracy and our constitution. As the problems with American democracy become increasingly evident, the media is taking an explicitly pro-democracy stance in its reporting. The same cannot be said for American constitutionalists. Although many constitutionalists are deeply concerned about the state of American democracy, those fears will not play a significant role in the celebrations that occur around Constitution Day. American constitutionalists overwhelmingly focus on normative issues involving the Supreme Court and pay little attention to constitutional design. Constitutional design mattered to the framers, but its scholarly importance atrophied as the Supreme Court’s power grew. This loss of intellectual interest in constitutional design is problematic. The media is reporting on how our Constitution operates in twenty-first America and the news is troubling. The perilous state of American democracy, in short, matters to the media but does not loom large in the scholarship of most American constitutionalists.

The attitude of American constitutionalists is puzzling. Democracy and constitutions are mutually constitutive ideas. In the late eighteenth century, the United States established a representative government undergirded by a written constitution. This was a revolution in politics. The framers understood that constitutions provide the terrain around which political forces do battle. Alexander Hamilton argued in The Federalist that the way to measure the success or failure of a constitution was its propensity to produce good government. The notion that constitutions and the quality of self-government are linked became our most important intellectual export. Today, virtually all democracies have a written constitution.

Democracies around the globe are now facing considerable headwinds due to climate change, globalization, a pandemic, and new information technologies. These headwinds are blowing strongly in the United States. In 2016, the United States elected a demagogue whom former vice president Dick Cheney called “the greatest ever threat to our Republic.” Donald Trump mounted a remarkably successful misinformation campaign that has convinced the majority of the Republican party that the 2020 election was stolen. The problem runs much deeper than Trump’s lies, troubling as they may be. Polarization drives democratic breakdown. There is considerable evidence that partisan dislike of opposing parties has risen more sharply in the United States than in its peer democracies. Strong majorities of Americans express mistrust of each other and of their government. The question we should be asking is whether America’s unusual eighteenth century constitutional arrangements continue to serve our democracy well in the twenty-first century.

The United States Constitution is exceptionally undemocratic when compared to those of its peer democracies that have continuously been in operation since 1950 (and the United States did not become a full democracy until the Voting Rights Act of 1965 led to near universal adult suffrage). The exceptional features of America’s constitutional order include a political class that has the power to insulate itself from the electorate by gerrymandering and voter restrictions; staggered elections; strong bicameralism with two houses of equal strength; malapportionment in the Senate that privileges rural, small population states; the electoral college; a Supreme Court poorly constrained by checks and balances; a federal government that may lack the power to solve national problems (at least according to a majority of the Supreme Court given its current ideological makeup); and an extremely high bar to constitutional amendment. The framers crafted what the historian Richard Hofstadter aptly termed the constitution against parties.

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Published on September 15, 2022
Author:          Filed under: Analysis
 
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Basic Structure and Tiered Amendment Processes: The Kenyan Supreme Court’s BBI Ruling

—Gautam Bhatia, SCRIPTS Centre for Excellence, University of Humboldt, Berlin

[Editors’ Note: This is the fourth and final post in a joint symposium on the Building Bridges Initiative (BBI) in Kenya, through which President Uhuru Kenyatta attempted to introduce the Constitution of Kenya (Amendment) Bill, 2020. Among the various reforms proposed therein, the bill introduced a new post of Prime Minister which, it has been speculated, is a role that President Kenyatta could seek should he lose the presidency. The bill was opposed on the basis of its constitutional validity and traversed the Kenyan courts, finally reaching the Supreme Court. A split bench of the Supreme Court held that the bill was irregular and unlawful because the constitutional requirement of public participation was not satisfied through the process of the bill’s introduction. This series seeks to provide a global perspective on the significance of the Kenyan Supreme Court’s judgment, and features contributions from legal experts and practitioners reflecting on the judgment and its implications for Kenya’s legal landscape. The symposium is being sponsored and organized jointly with the African Law Matters blog, and all posts will appear on both blogs.]

On 5th April 2022, the Supreme Court of Kenya issued a landmark ruling in the “Building Bridges Initiative” (“BBI”) case. The case concerned the constitutional validity of the BBI Bill, a bill that had proposed an omnibus package of seventy-four amendments to the Constitution of Kenya, 2010.

Before the case came to the Supreme Court, the High Court of Kenya and the Kenyan Court of Appeal had both held the BBI Bill to be null and void on numerous grounds. The Supreme Court agreed with the holding of constitutional invalidity, but disagreed with some of the reasons that the High Court and Court of Appeal had given for their findings. In this blog post, I will consider one of those grounds – i.e. the basic structure doctrine.

In essence, the basic structure doctrine authorises judges to substantively review constitutional amendments for compliance with a Constitution’s “basic structure”. Its scholarly origins lie in the writings of the German jurist Dietrich Conrad, and the doctrine found judicial acceptance in the Indian Supreme Court’s 1973 judgment in Kesavananda Bharati v State of Kerala. The doctrine’s intellectual foundations are based in the conceptual distinction between “amendment” and “repeal”; its proponents argue that a substantive alteration to a Constitution’s core identity – or “basic structure” – is not simply an “amendment”, properly understood, but a “repeal”, and cannot therefore be carried out by amendment processes that exist within the Constitution.

Until the 2021 judgment of the Kenyan High Court, the basic structure doctrine – in the jurisdictions where it had been accepted – had taken only one form: that of the judiciary striking down constitutional amendments that “damaged or destroyed” the Constitution’s basic structure. This had led to legitimacy concerns about judges overruling the will of parliamentary super-majorities.

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Published on September 13, 2022
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